Discrimination In Public Accommodations Research Articles

The Right to Have Property

Laura Underkuffler has kindly commented on my progressive, social- relations approach to property and property law. I feel humbled, honored, and seen. She notices the core moral commitments manifested in that work. She focuses on my scholarship on discrimination in public accommodations, the violent dispossession and persisting sovereignty of Native nations, and the obligations of the rich toward the poor. She emphasizes my willingness to take a moral stance. And she comments on the fact that I attempt to persuade readers about what the law should be, not just by interpreting authoritative texts, but by making normative arguments that are built on stories. She ponders the role of stories in the legal system. Well, here are some stories, and here are some moral stances.

Organizational Directives and the Persistence of Racial Discrimination in U.S. Public Accommodations

Public accommodations have been key sites of racial inequality in the United States for well over a century. Relative to employment and housing, however, systematic analyses of discrimination in public accommodations remain scarce in the sociological literature. Especially important may be whether and/or how organizational norms and directives underpin contemporary occurrences of racialized differential treatment in public accommodations. Based on an analysis of 319 closed case investigations gathered from Freedom of Information Act (FOIA) requests to civil rights commissions across 18 U.S. cities and states (2015–2020), findings reveal that African Americans and, in particular, African American men are frequent targets in formal complaints of racial discrimination in public accommodations. Building on theoretical expositions regarding the organizational foundations of inequality, case materials suggest that organizations’ ideal patron norms, policies, and directives play a foundational role in producing these racial disparities. Several purportedly “colorblind” institutionalized tools (e.g., admission tickets, restroom access, tote/bookbag rules, and dress codes) were also found to be central to these processes. As such, I argue that organizations of public accommodation contribute to the (re)creation of racial hierarchies as they normalize, direct, weaponize, and legitimize gatekeepers’ profiling and discretion—discretion which is often imbued with explicit or implicit stereotypes of the iconic ghetto/Negro—in these incidents.

The Evolution of Access to Public Accommodations in the United States

AbstractThe economic analysis of racial discrimination in public accommodations is remarkably limited. To study this issue, we construct a national data set of nondiscriminatory establishments from the Negro Motorist Green Books, a travel guide published from 1936 to 1966 to aid Black Americans in finding nondiscriminatory retail and service establishments. We document patterns in the geographic spread and evolution of Green Book establishments, as well as the correlates of Green Book presence. We find that economic and social measures, as well as state laws relating to racial discrimination and antidiscrimination, were correlated with the provision of nondiscriminatory services. We then use the Green Book data to test whether market conditions and white consumer discrimination led businesses to bar Black customers prior to the Civil Rights Act of 1964. We use plausibly exogenous variation from white World War II casualties and Black migration patterns to isolate the effect of a change in the racial composition of consumers on the growth of nondiscriminatory businesses. We find that the share of nondiscriminatory establishments grew faster in locations with larger increases in the share of the Black population, but the magnitudes were small. These results highlight the importance of federal legislation in ending racial discrimination in public accommodations.

The Journey to Separate but Equal: Madame Decuir's Quest for Racial Justice in the Reconstruction Era by Jack M. Beermann

Reviewed by: The Journey to Separate but Equal: Madame Decuir's Quest for Racial Justice in the Reconstruction Era by Jack M. Beermann Stephen A. West The Journey to Separate but Equal: Madame Decuir's Quest for Racial Justice in the Reconstruction Era. By Jack M. Beermann. (Lawrence: University Press of Kansas, 2021. Pp. xviii, 238. $39.95, ISBN 978-0-7006-3183-4.) This book explores the background, legal arguments, and lasting significance of Hall v. Decuir, a unanimous 1878 decision by the United States Supreme Court holding that Louisiana lacked the power to ban racial segregation on Mississippi River steamboats. Although the case has received far less attention than the Civil Rights Cases (1883), Plessy v. Ferguson (1896), and others bearing on racial segregation, Jack M. Beermann argues that it marked "a significant milestone in the march toward Jim Crow" (p. 4). Beermann opens by providing background on the litigants and on Reconstruction in Louisiana. Before the Civil War, Josephine Decuir and her husband, Antoine Decuir, were elite members of the state's mixed-ancestry, free gens de couleur and held more than one hundred people in slavery. During Reconstruction, her brother Antoine Dubuclet served as Louisiana state treasurer, and her cousin P. G. Deslonde was secretary of state. Both were part of a biracial Republican coalition that rewrote Louisiana's constitution in 1868 to ban racial discrimination in public accommodations and followed up with an 1869 antidiscrimination statute. But in 1872, when Josephine Decuir traveled from New Orleans to Pointe Coupée, Louisiana, the captain and crew of the riverboat Governor Allen denied her entry to the first-class "ladies' cabin" and tried to consign her to the "bureau"—a derogatory name suggestive of the Freedmen's Bureau for the space accommodating Black passengers, both male and female. Decuir sued Captain John Benson, alleging that his illegal conduct caused her "much mental pain, shame, and mortification" (p. 64). Benson's attorneys replied that racial segregation was common on steamboats and essential to maintaining the patronage of white passengers; moreover, they said, Louisiana lacked the power to regulate carriers on the Mississippi River. The trial court ruled in Decuir's favor, and the state supreme court concurred. The book's final chapters explore Benson's appeal to the U.S. Supreme Court and situate the outcome in the context of Reconstruction's demise—and the Court's role in hastening it. In January 1878, the Court unanimously ruled against Decuir and for Benson's widow, Eliza Jane Hall, who continued the case after his death. The majority opinion, by Chief Justice Morrison R. Waite, sidestepped arguments about civil rights and ruled instead that Louisiana's ban on racial discrimination infringed on Congress's constitutional authority to regulate interstate commerce. As Beermann explains, it was one of the Court's first decisions based on the theory of a so-called dormant commerce [End Page 572] clause—that is, the view that Congressional authority is exclusive and bars states from imposing an undue burden on interstate commerce even in the absence of conflicting federal legislation. Although Decuir's journey began and ended in Louisiana, the court held that travel on the Mississippi River was unavoidably of an interstate character. Beermann, a professor of law, puts his legal expertise to good use while also enriching the story with historical sources and context. He draws on historians' work to discuss Reconstruction and the place of free people of color in Louisiana. His biographical vignettes about the litigants and lawyers are interesting, though uneven in their payoff. While it is important, for example, to know that one of Benson's attorneys, R. H. Marr, represented perpetrators of the Colfax massacre in U.S. v. Cruikshank (1875) and was later named to the Louisiana Supreme Court, less obvious is the relevance of several pages on the divorce of E. K. Washington, who represented Decuir. Beermann makes clear how the Court's ruling in Hall v. Decuir was both in line with and apart from other decisions restricting civil rights protections during and after Reconstruction. Where in other cases, the Court limited federal power under the Reconstruction Amendments, this was something different: the striking down...

Alabama Justice: The Cases and Faces that Changed a Nation by Steven P. Brown

Reviewed by: Alabama Justice: The Cases and Faces that Changed a Nation by Steven P. Brown R. Volney Riser Alabama Justice: The Cases and Faces that Changed a Nation. By Steven P. Brown. Tuscaloosa: The University of Alabama Press, 2020. 280 pp. $49.95. ISBN 978-0-8173-2070-6. Decorated Auburn University political scientist Steven Brown’s Alabama Justice offers in book form a more complete portrait of the cases featured in his recent travelling exhibit of the same name that was offered in conjunction with the state’s recent bicentennial commemorations. To be clear, though, this is no mere companion volume. Rather, it is a broad-ranging and useful primer on Alabama’s peculiar place in American jurisprudence. Brown selected seven landmark U.S. Supreme Court decisions that originated from actions by Alabama state and municipal officials and an eighth, which examined U.S. Department of Defense policies as they operated upon service members stationed in the state, that originated in the state’s federal courts. These cases address criminal procedure (Powell v. Alabama); First Amendment cases involving free association [End Page 192] (NAACP v. Alabama), press freedom (New York Times v. Sullivan), and state-sanctioned religious practice (Wallace v. Jaffree); legislative and municipal apportionment (Gomillion v. Lightfoot and Reynolds v. Sims); discrimination in public accommodations (Katzenbach v. McLung); and sex discrimination (Frontiero v. Richardson). Brown devotes a concluding ninth chapter to the three U.S. Supreme Court Justices from Alabama: John McKinley, of whom Brown authored an excellent biography [John McKinley and the Antebellum Supreme Court (Tuscaloosa, AL, 2012)], John Archibald Campbell, and Hugo Black (who notably took part in six of the eight decisions Brown examined). Though Alabama produced two Supreme Court justices in the nineteenth century, the state did not generate landmark Supreme Court decisions until the twentieth century. The notorious Giles cases of 1903–1904 were the first, and the state’s remarkable run of (usually) Supreme Court defeats only began in the 1930s, a decade when, perhaps not coincidentally, the state adopted as the official motto “We Dare Defend Our Rights.” As Brown notes in his introduction, inquiries into Alabama’s role in U.S. Constitutional jurisprudence are perhaps not properly framed as “Why Alabama?” but “Why Alabamians?,” and over the course of the twentieth century at least a plurality of the voting populace sanctioned and cheered successive attempts by the state’s officers and legal advocates to stand athwart prevailing national jurisprudential trends (3). This does not claim to be a comprehensive catalog, either, of all the times Alabama or Alabamians directly or indirectly came before the nation’s highest bar. Wallace v. Jaffree, the “moment of silence” case is included, while Marsh v. Alabama, one of the 1940s Jehovah’s Witnesses cases, is not. Lightfoot v Gomillion is here, but Mobile v. Bolden, which limited the former’s application, is not. And, neither the infamous Giles cases, which effectively sanctioned the state’s 1901 disfranchisement scheme, nor Hunter v. Underwood, which struck down the first infamous iteration of Alabama’s “moral turpitude” standard for criminal disfranchisement, are here. This reviewer mentions these not to fault Professor Brown, who operated within literal and figurative space constraints, but to underscore the point [End Page 193] that Alabama’s frequent appearances in weighty twentieth-century jurisprudential disputes extend well beyond the pages of this text. Professor Brown has laid down a valuable marker for Alabama’s place in U.S. Constitutional jurisprudence, one that simultaneous commemorates the prior two hundred years and that can serve as a foundation for scholarly work, reflection, and law-making to come. [End Page 194] R. Volney Riser University of West Alabama Copyright © 2022 Alabama Historical Association

Can Bostock do the Texas Two-Step? The Need for LGBTQ Legal Protections in the Lone Star State

LGBTQ Texans are offered zero protections from discrimination under Texas law. Texas is one of only five states with no laws to prevent discrimination in public accommodations despite the majority of Texans supporting legal protections for this community. Public accommodation laws ensure that individuals are able to engage in commerce at businesses generally open to the public without being discriminated against based on their membership in a protected class. When the Supreme Court decided Bostock v. Clayton County, it held that Title VII’s “because of sex” analysis inextricably includes the derivatives of sexual orientation and gender identity (SOGI). While the majority limited the holding to Title VII, even the dissent understood that the holding would have implications far beyond employment, referencing the hundreds of other federal statutes that would be affected. This ever-developing precedent was recently expanded by an Executive Order from President Biden, applying Bostock to all federal statutes that prohibit discrimination on the basis of sex. Multiple states are already applying this holding to laws prohibiting discrimination in other contexts like housing, education, and public accommodation under the logic that the holding applies equally to state laws that are modeled after federal counterparts. Further expansion of the Bostock holding is inevitable. Unlike other LGBTQ rights cases that were decided under the Equal Protection Clause or Due Process Clause, Bostock is a statutory interpretation decision whose effects will seamlessly bleed into other areas of law. Texas has multiple interests in joining the growing number of states expanding LGBTQ protections: safeguarding the monetary interests that business transplants and tourism bring to the state, avoiding needless litigation from advocate groups, and a shifting state electoral map that is trending evermore purple as Texas is further diversified. The holding in Bostock is the writing on the wall for Texas; now is the time to pass substantive legislation that has stalled in the legislature for the past two decades. Texas should pass legislation that closes the gaps in federal law and balances state interests to afford protections to LGBTQ individuals in places of public accommodation. Passing this legislation is the first step in righting the wrongs of decades of discrimination and would set Texas on a path for progress.

With Shared Roots: Rubie Bond, the Great Migration, and the Struggle for Black Freedom in Beloit, Wisconsin

With Shared RootsRubie Bond, the Great Migration, and the Struggle for Black Freedom in Beloit, Wisconsin Francis Gourrier (bio) In early 1943, six black women sat down at a Kresge's department store lunch counter in Beloit, Wisconsin. Like most restaurants, hotels, and other businesses in Beloit, Kresge's had long refused service to African Americans. The women sought out confrontation with the Kresge's store manager and Jim Crow's grip on the Midwest.1 In contrast to the more well-documented southern sit-ins of the 1960s, this particular protest did not stir up vitriolic attacks from local whites. In fact, one of the leaders of this sit-in, Rubie Bond, recalled that only the store manager was hostile to their demands and that some white patrons supported the protesters. After an hour of sitting in, the women left the restaurant to appeal to Beloit's city manager, Archie Telfer, to do something about racial discrimination in public accommodations. Telfer dismissed their concerns, telling the women his hands were tied and there was not much he could do.2 The story of Bond and the other women's protest is noteworthy for a few reasons. First, it draws attention to the fact that racial discrimination was embedded in local custom and policy everywhere in the United States, including the Midwest. In recent years, scholars have made efforts to demystify and expose "the ways Jim Crow took many forms, had many guises, and burrowed into the law" and everyday practices throughout the country, not just in the post-Reconstruction South.3 Second, though the Kresge's protesters had grown up in Beloit, they were all originally from the same small corner of northeast Mississippi. During World War I, the city of Beloit drew in more than half of its migrant population from Pontotoc and Houston, Mississippi, as part of the Great Migration.4 The six women [End Page 1] represented two different Mississippi families: Rubie Bond and Sadie Bell were first cousins from Pontotoc while cousins Ethel Gordon Johnson, Annie Gordon Harris, Estelle Gordon Williams, and Louise Gordon had migrated from Houston, Mississippi. Such kinship networks were a prominent feature of Beloit's black history. Third, the Kresge's sit-in offers a glimpse into the early stages of the modern civil rights struggle in the Midwest and its direct connections to the Great Migration. In Beloit, the city's black population relied on kinship to foster community during the World War I migration years and to challenge midwestern racial segregation after migration. A close look at Rubie White Bond's story, woven into a broader black history of Beloit, offers important lessons on race, migration, gender, and community building in smaller midwestern cities in the early half of the twentieth century. Bond's intimate network of fellow Mississippi migrants helped catapult her into an important political leadership role in Beloit, a story that shines a light on an often-ignored aspect of the Great Migration. Much of the Great Migration historiography has focused on larger U.S. cities. To be sure, places like Chicago, Detroit, New York, and Philadelphia witnessed "chain migration" a systematic migration pattern that saw southern familial networks relocate in mass; yet, newcomers to those places had relocated from a wide range of origin points.5 Beloit's migration presents a unique chain migration story because its black population possessed a concentrated southern origin. This differed significantly from other cities, large and small, whose black populations were comprised of "people of disparate origins."6 Through shared roots, Rubie Bond and many black Beloiters summoned a political will to challenge racial discrimination in this small industrial city in the Midwest. Rubie White was born in Pontotoc, Mississippi, in 1906 to two sharecroppers, Zack and Dora White—both the children of former slaves. Young Rubie and her sister, Laura, began working with their parents on a corn and cotton plantation at the ages of six and five, respectively. Though child labor was a fairly common practice for sharecropping families in the Jim Crow South, the plantation owner, Walt Weatherall, often scolded Zack White for overworking the girls. Weatherall's relative kindness made Rubie and Laura's...

The Original Meaning of 'Full and Equal Enjoyment' of Public Accommodations

In this reply to Professor Suja Thomas's The Consumer Caste: Legal Discrimination by Public Businesses, I argue that the federal courts have defied the original meaning of Title II of the Civil Rights Act of 1964. Its language of full and equal enjoyment of public accommodations carried a fixed meaning in 1964 when Title II became law, due to the nation’s long experience with near-identical state civil rights laws. Looking to state court and commission decisions contemporaneous with or pre-dating the Civil Rights Act, I show that state courts interpreted statutes with the same operative provision to prohibit precisely the practices that the federal courts now permit. Before the Civil Rights Act, courts, commissions, and the public recognized that public accommodations law required both access and undifferentiated treatment. They took the perspective that equality required granting Black customers the same courtesies customarily extended to and expected by White customers. Moreover, decisionmakers did not defer to businesses’ justifications of poor treatment, but instead took a functionalist approach to public accommodations discrimination consistent with those statutes’ common law origins. This history provides a corrective to the federal court’s mistaken interpretation of public accommodations law. It provides context for “full and equal enjoyment” that a dictionary alone cannot. It also suggests alternative methods of analysis of discrimination claims that are more consistent with Title II's text.

Prevalence and minority-stress correlates of past 12-month prescription drug misuse in a national sample of transgender and gender nonbinary adults: Results from the U.S. Transgender Survey

BackgroundPrescription drug (PD) misuse, particularly opioid misuse, is a major US public health concern. While transgender and gender nonbinary (TGNB) individuals experience numerous health disparities, including substance use disparities, little research has focused on PD misuse in this population. MethodsData for this secondary analysis come from the US Transgender Survey (N = 26,689). First, we examined bivariate differences in past 12-month PD misuse among binary transgender women, binary transgender men, nonbinary individuals assigned-female-at-birth (AFAB), and nonbinary individuals assigned-male-at-birth (AMAB). We then used multivariable logistic regression (separately based on sex-assigned-at-birth) to examine the relationship between gender-identity related discrimination and PD misuse. ResultsPD misuse was significantly more common among binary transgender men (17.3 %), nonbinary AFAB individuals (18.7 %), and nonbinary AMAB individuals (18.0 %); compared to binary transgender women (13.5 %). In multivariable analyses, nonbinary identity was associated with higher odds of PD misuse among TGNB AFAB individuals (OR = 1.121; 95 %CI 1.021−1.232) and AMAB individuals (OR = 1.315; 95 % CI 1.133−1.527). Controlling for overall health status and psychological distress, public accommodations discrimination was associated with PD misuse among TGNB AMAB individuals (OR = 1.578, 95 %CI 1.354−1.839). Among both groups, healthcare discrimination was associated with PD misuse (AFAB OR = 1.388, 95 %CI 1.255−1.534; AMAB OR = 1.227, 95 %CI 1.073−1.404). ConclusionIn this national sample of TGNB individuals, nonbinary individuals were at greater risk for PD misuse than binary individuals, possibly due to less societal affirmation. Similar to other TGNB health disparities, discrimination based on gender identity/expression was associated with PD misuse. This highlights the importance of interventions to reduce discrimination against TGNB individuals.

Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents, Fulton v. City of Philadelpha

This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. The race analogy in today’s religious exemption cases is attractive to LGBT-rights advocates because the Court has—in the 1960s case of Piggie Park v. Newman—rejected a religious exemption claim in the context of racial discrimination in public accommodations. The amicus brief addresses two common arguments made by exemption seekers against the race analogy. First, today’s exemptions seekers bristle at the comparison to Piggie Park and to the vendors of the 1960s who sought to justify racial discrimination based on religious beliefs. They contend that the vendors of the 1960s were actually racists using religion as a cover for their bigotry. In contrast, today’s wedding vendors contend that they are asserting honorable and sincerely held religious beliefs that justify sexual orientation discrimination. This amicus brief asserts that the race analogy and the honorableness of today’s exemption seekers are not mutually exclusive because (1) the exemption seekers of the 1960s were viewed as honorable and sincere by courts and the public alike; and (2) courts need not look behind the asserted religious belief to validate or critique it, but must instead accept the asserted belief at face value; any normative characterization of the asserted religious belief is thus irrelevant assessing the propriety of the race analogy. Second, today’s exemption seekers argue that the race analogy is improper because race is subject to strict scrutiny in an equal protection analysis, whereas sexual orientation is subject to, at most, intermediate scrutiny. This argument fails because it is based on a fundamental misunderstanding of two things that are not commensurate: the relationship between the equal protection tiers of scrutiny, on one hand, and claims for religious exemptions from antidiscrimination law, on the other. The amicus brief concludes that analogizing to race in this case requires no improper governmental assessment of religious beliefs, just as courts made no such assessment in the 1960s. The race analogy, including an analogy to Piggie Park, should thus be used in the Fulton case and others like it.

Public Rights

Scott focuses on the conflicts in the state of Louisiana over a provision in the post-Civil War Louisiana Constitution of 1868 that guaranteed “public rights” to all regardless of race. While we still live with shockingly high levels of racial discrimination in public accommodations, front and center today are claims that the Constitution's guarantee of religious liberty requires exemptions from state laws that prohibit discrimination on the basis of sexual orientation or gender identity. To understand the historical context within which we confront this issue today, it will help to understand how public accommodations law has changed over time through the course of United States history.

Rights, Dignity, and Public Accommodations

In this essay I consider why debates over applying anti-discrimination norms to public accommodations have long been, and remain today, such a resilient presence in the history of the United States. I use as my starting point the most famous iteration of this phenomenon, the national debate sparked by the 1960 sit-in movement and culminating in the passage of the Civil Rights Act of 1964, which banned racial discrimination in public accommodations across the nation. The battle over racial discrimination and public accommodations in the early 1960s illuminates the moral issue at the heart of the issue, the lines of argument that characterize the debate over how to define legal rights in this area, and the ways in which different legal institutions have resolved, or failed to resolve, the issue. I then move backward time, highlighting the continuities between this episode and the struggle over race and public accommodations during Reconstruction. The history of the civil rights era provides a useful framework to analyze the terms of debate from a century earlier, and it provides particular insights into the significance of the concept of public rights that Rebecca Scott has so effectively brought to our attention.

Discrimination in public accommodations

AbstractDespite widespread belief in the efficacy of statutes prohibiting discrimination in public accommodations, including protections for the use of privately provided yet publicly available services such as transportation, hotels, and restaurants, we lack causal estimates of the impacts of these statutes on the well-being of those they are designed to protect. We leverage the US Supreme Court's 1883 strike of the public accommodations provisions in the Civil Rights Act of 1875, along with variation in state-level statutes, to identify the impact of the Act's public accommodations provisions. Using a panel of repeated geo-located medical exams of US Colored Troops (USCT) and white Union Army veterans, and a series of difference-in-differences, geographic regression discontinuity, and placebo designs, estimates consistently suggest that the Court's ruling led to meaningful weight losses for USCT veterans in states without state-level public accommodations statutes. These findings suggest that statutes prohibiting discrimination in public accommodations can have significant positive impacts on the well-being of those they are designed to protect.

Jim Crow Capital: Women and Black Freedom Struggles in Washington, D.C., 1920–1945 by Mary-Elizabeth B. Murphy

Reviewed by: Jim Crow Capital: Women and Black Freedom Struggles in Washington, D.C., 1920–1945 by Mary-Elizabeth B. Murphy Traci Parker Jim Crow Capital: Women and Black Freedom Struggles in Washington, D.C., 1920–1945. By Mary-Elizabeth B. Murphy. (Chapel Hill: University of North Carolina Press, 2018. Pp. [xii], 280. Paper, $29.95, ISBN 978-1-4696-4672-5; cloth, $90.00, ISBN 978-1-4696-4671-8.) Embracing the long civil rights movement approach, the historian Mary-Elizabeth B. Murphy tells the story of African American women’s civil rights activism in early-twentieth-century Washington, D.C., which she aptly refers to as “Jim Crow Capital,” in Jim Crow Capital: Women and Black Freedom Struggles in Washington, D.C., 1920–1945. Murphy argues that, after World War I and the ratification of the Nineteenth Amendment, African American women waged a gamut of campaigns for voting and citizenship rights. These rights, which were conferred by local and federal laws in the 1860s, were abolished less than a decade later. Working in behalf of all African Americans, in and outside the nation’s capital, black women “crafted a broad vision of citizenship rights, maintaining that full equality would never be achieved until everyone was equal in the eyes of the law; each person had the opportunity to earn a just wage and live decently; America’s commemorative landscape celebrated the achievements of the nation’s diverse citizenry; and all women, men, and children lived free of the terrors of violence” (p. 2). African American women’s vision and activism, Murphy concludes, not only transformed the nation’s capital but also influenced the nature and direction of postwar black freedom struggles. Drawing largely on black organizational records and newspapers, Murphy meticulously traces in six chapters African American women’s shifting focus from national politics to local affairs. Each chapter examines these women’s use of social and political networks and organizations to try to pass (albeit unsuccessfully) a federal antilynching law, combat police brutality, secure economic justice and local suffrage, and end racial segregation and discrimination in public accommodations. The chapter on African American women’s campaign against police brutality is particularly timely and compelling. Using twenty-nine reported cases of violence against black women, Murphy reveals that, though the campaign was “not an exclusively women’s movement,” women successfully leveraged their “networks in neighborhood associations, the Phyllis Wheatley YWCA, fraternal orders, and political organizations. to make the city ‘Safe for Negro Womanhood’” (p. 79). As black women rallied against police violence, Murphy also notes, they began “to employ militant language, direct action resistance, and an unwavering quest for first-class citizenship” (p. 109). Arguably, Murphy makes her strongest case that black women in Washington laid the foundation for the civil rights movement in her final chapter. Here, she examines Howard University students’ 1943 sit-in movement and situates it within “a larger movement that included federal lobbying campaigns, protests against transportation segregation, and ongoing engagement with the memories of the Civil War” (p. 174). This sit-in movement, Murphy finds, “became affiliated with the Fellowship of Reconciliation of the Congress of Racial Equality (CORE) By uniting a local movement with a prominent, national civil rights organization, activists saw the black freedom struggle in Washington, D.C., as a model for the nation” (p. 190). [End Page 512] Some readers, however, may be left wanting a fuller interrogation of this local movement’s reach. What made the Washington sit-in movement “a model for the nation”? Was it the employment of this tactic in the consumer sphere and in the nation’s capital during World War II? Was it the convergence of the sit-in with other grassroots campaigns in Washington? Was it well received by African Americans in other cities—who were engaging similar battles—during and after the war? Nevertheless, Jim Crow Capital is a welcome addition to a growing body of literature on the black freedom movement and black Washington’s lives and labors in the early twentieth century. Murphy’s well-researched book reaffirms and expands our knowledge of the sacrifices, ingenuity, and activism of African American women who paved the way and shaped...

'‘Male Chauvinism’ Is Under Attack from All Sides at Present': Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force of the race discrimination-sex discrimination analogy. The parties and their amici invoked NAACP v. Alabama (1957), a significant root of the constitutional right to freedom of association, in strikingly different ways, and strenuously disagreed about how to compare the Jaycees to the NAACP. How did the parties frame the evident conflict between promoting sex (or gender) equality—women’s full participation in society—and protecting freedom of association? What was at stake for women in being excluded from full membership in organizations, like the Jaycees and all-male private clubs, that provided members an entree to the “Old Boys Network”? What was at stake for the Jaycees and similar organizations in a climate in which (as one amicus put it) “‘male chauvinism’ is under attack from all sides”? In Jaycees, even as the Supreme Court elaborated upon the values advanced by the First Amendment’s protection of freedom of association, it upheld the application of Minnesota’s public accommodations law to the Jaycees’s exclusion of women from regular membership despite the Jaycees’s freedom of speech and association claims. Both aspects of Jaycees live on, as was evident in arguments made in Masterpiece Cakeshop v. Colorado Civil Rights Commission that related sexual orientation discrimination to other forms of “invidious” discrimination that government may prohibit. This article argues that the relationship between freedom of association and gender equality is double-edged. It concludes by returning to the present day, asking whether the Old Boys Network is simply a relic of the past or has continuing potency. It reflects on some present-day controversies over freedom of association and single-sex organizations.

“Another Victory for the Forces of Democracy”: The 1949 New Jersey Civil Rights Act

ABSTRACT In the middle decades of the twentieth century, African Americans in New Jersey, like those in neighboring northeastern states, suffered pervasive discrimination in public accommodations, employment, housing, and education. This was true despite the fact that New Jersey lacked the state-mandated segregation common south of the Mason-Dixon line, and also that state civil rights laws in force since the 1870s ostensibly barred most such discrimination. Beginning in the late 1930s, activists in the NAACP and allied organizations began a concerted effort to overturn segregation throughout the state. Inspired by the nation's battle against tyranny abroad during World War II and prompted by fair employment measures enacted by New York and the federal government, these advocates pressed for truly effective civil rights legislation. Supportive state officials (notably Governor Alfred Driscoll), after desegregating public schools via the new state constitution of 1947, enacted a sweeping civil rights bill in 1949 banning discrimination in public accommodations and gave enforcement power to a potent state agency. This opened hotels, restaurants, and other amenities to minorities so effectively that New Jersey's actions provided a model later followed by Pennsylvania, New York, and other neighboring states.

The Sit-In Cases: Explaining the Great Aberration of the Warren Court

The Sit-In Cases: Explaining the Great Aberration of the Warren Court CHRISTOPHER W. SCHMIDT The Warren Court is remembered for its commitment to advancing the rights of the disempowered. In cases involving conten­ tious national issues—school desegregation, criminal justice, voting rights—the Supreme Court under the leadership of Chief Justice Earl Warren (1953-1969) offered bold new interpretations of the Constitution. But in a line of cases in the early 1960s—cases many at the time believed to be as significant as any the Warren Court faced—the Court broke pattern. When faced with cases involving appeals of criminal convictions for involve­ ment in lunch counter sit-in demonstrations, the Court ducked, again and again. The Court overturned convictions of the sit-in protest­ ers, but always on narrow grounds. A majority of the Justices never squarely faced the difficult constitutional question at the core ofthe sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use race as a qualification for service? In other lines of cases, when the struggle for racial equality faced constitutional bar­ riers to achieving its objectives, the Warren Court reworked constitutional law. This was particularly true when civil rights activists in the streets were able to secure broad constitutional support for the constitutional claims the civil rights lawyers were pressing in the courts. When it came to the sit-in cases, public opinion had clearly swung behind the cause of the sit-ins protesters. By the middle of 1963, an overwhelming majority of Americans supported equal access to eating facilities.1 In 1964, when Congress was about to pass the Civil Rights Act, which included a national prohibition on racial discrimination in public accommodations, most ofthe nation lived under state or local laws requiring nondiscriminatory access to public accom­ modations.2 Despite this transformation tak­ ing place outside the Court, the Court still refused to align itself squarely with the students. In fact, in late 1963, a majority of THE SIT-IN CASES: THE GREAT ABERRATION 295 the Justices were poised to squarely reject the students’ constitutional claim. The sit-in cases stand as the great—and largely forgot­ ten—aberration of the Warren Court. Why did the Justices, such stalwart defenders of other civil rights claims during this period, have so much difficulty with the sitin cases? When the Justices approached the constitutional claim ofthe sit-ins, they saw the same basic issues that captured the attention of the American people.3 They appreciated the powerful egalitarian message ofblack students sitting at lunch counters, denied their share of American citizenship for no reason other than the color of their skin. They supported the passage of federal legislation ending this shameful situation once and for all. But they also faced concerns that were particular to their places in the institution perched at the apex of the American judicial system. The Justices worked with a distinctive tool, the language of constitutional doctrine, with its particular cate­ gories ofanalysis and reliance on precedent. And they were moved by distinctive institutional interests, the most significant of which was an overriding concern with protecting the legiti­ macy and integrity of the judicial process. The Justices differed among themselves as to the nature, import, and relative weight of these factors, but taken as a whole, they explain why the Court fell out of step with the rest of the nation when it came to the fundamental constitutional question raised by the sit-ins. This article breaks down the Supreme Court’s confrontation with the sit-in cases into four acts. Act One examines two cases, each originating in challenges to racial discrimination that predated the sit-in move­ ment, that arrived at the Court in late 1960 and early 1961, in the aftermath of the sit-ins. I use these cases to introduce the central constitutional issues raised in the sit-in cases A majority of the Justices on the Warren Court never squarely faced the difficult constitutional question at the core of the sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use...

“Our Color Won’t Wash Off”: The Desegregation of Swimming in Lancaster, Pennsylvania

Abstract In Lancaster, Pennsylvania, as in other northern cities, the campaign to desegregate swimming was a protracted drama of victories in court, pool owners’ evasion of state civil rights law, and white flight from integrated facilities. In 1960, Lancaster progressives filed lawsuits against three privately owned pools that were open to the public on a daily basis but did not allow African Americans. Such exclusion was a violation of Pennsylvania’s Equal Rights Act of 1939, which forbade discrimination in public accommodations (or facilities open to the public) based on race, creed, or color. In Lancaster, when the courts sided with African American patrons, the pools quickly shifted from open-access to members-only policies to evade state civil rights law. The city and county responded to the privatization of the three pools by building publically funded pools in 1966 and 1967. Lancaster’s new, high-quality pools, located in parks, were different from most of the other pools built during this “municipal pool renaissance” in which cities built pools—usually shallow and small—in blighted neighborhoods as a strategy for calming urban violence in the second half of the 1960s. The Lancaster case confirms northern ambivalence about civil rights and uncovers one community’s struggle to build and define public swimming pools.

Legal Protections in Public Accommodations Settings: A Critical Public Health Issue for Transgender and Gender-Nonconforming People.

Since 2012, Massachusetts law has provided legal protections against discrimination on the basis of gender identity in employment, housing, credit, public education, and hate crimes. The law does not protect against discrimination based on gender identity in public accommodations settings such as transportation, retail stores, restaurants, health care facilities, and bathrooms. A 2013 survey of Massachusetts transgender and other gender minority adults found that in the past 12 months, 65% had experienced public accommodations discrimination since the law was passed. This discrimination was associated with a greater risk of adverse emotional and physical symptoms in the past 30 days. Nondiscrimination laws inclusive of gender identity should protect against discrimination in public accommodations settings to support transgender people's health and their ability to access health care. Gender minority people who are transgender or gender nonconforming experience widespread discrimination and health inequities. Since 2012, Massachusetts law has provided protections against discrimination on the basis of gender identity in employment, housing, credit, public education, and hate crimes. The law does not, however, protect against discrimination in public accommodations (eg, hospitals, health centers, transportation, nursing homes, supermarkets, retail establishments). For this article, we examined the frequency and health correlates of public accommodations discrimination among gender minority adults in Massachusetts, with attention to discrimination in health care settings. In 2013, we recruited a community-based sample (n = 452) both online and in person. The respondents completed a 1-time, electronic survey assessing demographics, health, health care utilization, and discrimination in public accommodations venues in the past 12 months. Using adjusted multivariable logistic regression models, we examined whether experiencing public accommodations discrimination in health care was independently associated with adverse self-reported health, adjusting for discrimination in other public accommodations settings. Overall, 65% of respondents reported public accommodations discrimination in the past 12 months. The 5 most prevalent discrimination settings were transportation (36%), retail (28%), restaurants (26%), public gatherings (25%), and health care (24%). Public accommodations discrimination in the past 12 months in health care settings was independently associated with a 31% to 81% increased risk of adverse emotional and physical symptoms and a 2-fold to 3-fold increased risk of postponement of needed care when sick or injured and of preventive or routine health care, adjusting for discrimination in other public accommodations settings (which also conferred an additional 20% to 77% risk per discrimination setting endorsed). Discrimination in public accommodations is common and is associated with adverse health outcomes among transgender and gender-nonconforming adults in Massachusetts. Discrimination in health care settings creates a unique health risk for gender minority people. The passage and enforcement of transgender rights laws that include protections against discrimination in public accommodations-inclusive of health care-are a public health policy approach critically needed to address transgender health inequities.

Making the World in Atlanta's Image: The Student Nonviolent Coordinating Committee, Morris Abram, and the Legislative History of the United Nations Race Convention

Atlanta's human rights community was buzzing, because the United Nations (U.N.) was coming to town. On Sunday, January 19, 1964, the front page of theAtlanta Daily World, the city's oldest black newspaper and the South's only black daily, announced, “United Nations Rights Panel to Visit Atlanta.” The U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities (Sub-Commission), theDaily Worldexplained, was a fourteen nation “body that surveys the worldwide problems of discrimination.” The Sub-Commission had been invited to Atlanta by Morris Abram, a former Atlanta attorney and the lone United States member of the Sub-Commission, to study first-hand the city's well-publicized, efforts to improve in race relations. Sunday morning'sDaily Worldalso noted that the U.N. delegation “composed of experts, mostly lawyers and jurists” was in the midst of drafting a global treaty designed to end racial discrimination, and the local paper highlighted Abram's role as the primary drafter of the race accord. “Mr. Abram, as the U.S. expert on the subcommission has proposed a sweeping eight-point treaty,” the article reported. According to theDaily World, the pending race treaty—the treaty that would ultimately become the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD or Convention)—would address “segregation, hate groups and discrimination in public accommodations.”