Bayer, Eugene S.

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Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 15 | Issue 31964Constitutional Law--Extension of State ActionEugene S. BayerFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationEugene S. Bayer, Constitutional Law--Extension of State Action, 15 W. Res. L. Rev. 577 (1964)Available at: https://scholarlycommons.law.case.edu/caselrev/vol15/iss3/131964]Recent DecisionsCONSTITUTIONAL LAW - EXTENSION OF STATE ACTIONSmith v. Holiday Inns of America, Inc.220 F. Supp. 1 (M.D. Tenn. 1963)In Smith v. Holiday Inns of America, Inc.,1 plaintiff, a Negro, insti-tuted a class action for declaratory relief to restrain a motel owner andits resident manager from continuing a policy of discrimination againstNegroes. The land upon which the motel was erected had been pur-chased with private funds from the Nashville Housing Authority, apublic body.2 Furthermore, restrictive covenants were incorporated inthe deed to insure future conformity with an urban redevelopment plan.'The issue before the federal court was whether the private owner'sacts of discrimination could be considered illegal state action under thefourteenth amendment. The court held that the state was sufficientlyinvolved in the conduct of the private motel owner to bring the casewithin the constitutional provision of the fourteenth amendment whichprohibits state action denying equal protection of the laws to any person.4"State action" was found in the pervasive forms of governmental partici-pation in the urban redevelopment project and continuing governmentalcontrols over the use of the property.Defendant contended that the land was purchased at arm's lengthfrom the state for its full market value. It was argued that the buildingwas erected with private funds, at no cost to the public, and that theowner paid normal ad valorem and other taxes. While admitting apolicy of racial discrimination, defendant denied that this took placeunder color of state law5 or that it constituted in any way an arm orinstrumentality of the State of Tennessee.' The motel owner claimedimmunity from the provisions of the fourteenth amendment on theground that the acts complained of were of the purely private type re-peatedly held to be outside the purview of the federal constitution sincethe decision in the Civil Rights Cases.'1. 220 F. Supp. 1 (M.D. Tenn. 1963).2. TENN. CODE ANN. §§ 13-801 to 13-1007 (1955).3. Article V, Restrictive Covenants, Capitol Hill Redevelopment Project, Nashville, Ten-nessee (1958), Smith v. Holiday Inns of America, Inc., 220 F. Supp. 1, 6 (M.D. Tenn. 1963).4. U. S. CONST. amend. XIV, § 2.5. As required by 28 U.S.C. § 1343(3) (1959) and 42 U.S.C. § 1983 (1959).6. This condition precedent was established by Justice Bradley in the Civil Rights Cases:"It is state action of a particular character that is prohibited. Individual invasion of individ-ual rights is not the subject matter of the amendment." Civil Rights Cases, 109 U.S. 3, 11(1883). For a summary of what the Court has considered to be state action, see AMTEAu,COm?.mARIS ON THE CONSrTON OF TI UNrrm STATES 143 (1960).7. 109 U.S. 3 (1883). No matter how far the concept of state action has been extended,WESTERN RESERVE LAW REVIEWThe court rejected these arguments and found "far reaching and sig-nificant" state participation.' This conclusion was based on the rationaleof the Supreme Court in Burton v. Wilmington Parking Authority.' InBurton, the Court reiterated that the equal protection clause erects noshield against merely private conduct.'" Yet it struck down racial dis-crimination in a privately-owned restaurant after finding significant in-volvement of the state in the leasing of space from a public body."Lower courts promptly applied the test used in the Burton case. Dis-crimination has been held unconstitutional when it occurred in a restau-rant operating under a lease from a city. 2 Where a sale of land wasinvolved, discrimination at a privately-owned golf course was held sus-ceptible to the fourteenth amendment because the title to the land con-tained a clause under which it might revert to the city, a prior owner."Prior to the Burton case, courts had repeatedly rejected claims thatstate regulation or control made discrimination in public accommoda-tions a form of state action. The instant opinion refers to two de-cisions in this area as being overruled by the Burton decision.'" First, inBarnes v. City of Gadsden,'" a restrictive covenant passed to a privateowner from a city housing authority (as in Smith) and actually wasdirected against racial discrimination. The Court of Appeals for theFifth Circuit affirmed a decision by a lower court which could not findstate action in subsequent discrimination by private owners. Second, inDorsey v. Stuyvesant Town,'6 land for a housing project had been clearedby New York City under its power of eminent domain and tax exemp-tions had been granted to the private owners. On appeal, the lowercourt's decision that the actions of the private owners were immune tothe constitutional prohibition was upheld.The development of the cases applying the fourteenth amendmentand interpreting what constitutes "state action" seem to indicate a virtualno decision has failed to reiterate that more than "purely private" acts must be asserted andproved if the fourteenth amendment is to be invoked. See, e.g., Shelley v. Kramer, 334 U.S.1. (1947) (judicial enforcement of a restrictive covenant held unconstitutional). The opin-ion in Shelley v. Kramer is most often quoted to show that "the fourteenth amendment erectsno shield against merely private conduct, however discriminatory or wrongful." Shelley v.Kramer, id at 13.8. Smith v. Holiday Inns of America, Inc., 220 F. Supp. 1, 8 (M.D. Tenn. 1963).9. 365 U.S. 715 (1961).10. Id. at 721-22.11. Ibid.12. Turner v. City of Memphis, 369 U.S. 350 (1962).13. Hampton v. City of Jacksonville, 304 F.2d 320 (5th Cir.), cert. denied, 371 U.S. 911(1962).14. Smith v. Holiday Inns of America, Inc., 220 F. Supp. 1 (M.D. Tenn. 1963).15. 174 F. Supp. 64 (N.D. Ala. 1958), afId, 268 F.2d 593 (5th Cir. 1959), cert. denied,361 U.S. 915 (1960).16. 299 N.Y. 512, 87 N.E.2d 541, cert. denied, 339 U.S. 981 (1950).[Vol. 15:577

Constitutional Law--Extension of State Action

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Constitutional Law--Extension of State Action

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