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Adickes v. S.H. Kress & Co.398 U.S. 144 (1970)

Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington UniversityForrest Maltzman, George Washington University

CHAMBERS OF

HE CHIEF JUSTICEApril 22, 1970

Re: No. 79 - Adickes v. Kress & Co.

Dear John:

Please join me in your opinion.

Regards

W. E. B.

Mr. Justice Harlan

cc: The Conference

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Sandra Adickes, Petitioner,V.

S. H. Kress and Company.

To: The . ChfMr. Just D-Mr. Just-?

Justf. 13!--Mr. Justice SeP

J=,tice

Mr. JuLtico2

SUPREME COURT OF THE UNITED STATp■ rom: Black, J.

No. 79.-OCTOBER TERM, 1969 Circulated• MAR 2 5

On Writ of Certiorari to /4/8 irculated:United States Court ofAppeals for the SecondCircuit.

[March —, 1970]

MR. JUSTICE BLACK, concurring in the judgment.

The petitioner. Sandra Adickes, brought suit againstthe respondent, S. H. Kress it: Co., to recover damagesfor alleged violations of 42 U. S. C. § 1983. In onecount of her complaint she alleged that a police officerof the City of Hattiesburg, Mississippi, had conspiredwith employees of Kress to deprive her of rights securedby the Constitution and that this joint action of a stateofficial and private individuals was sufficient to consti.:tute a violation of § 1983. She further alleged in anothercount that the Kress' refusal to serve her while shewas in the company of Negroes was action "under colorof" a custom of refusing to serve Negroes and whitestogether in Mississippi, and that this action was a vio-lation of § 1983. The trial judge granted a summaryjudgment in favor of Kress on the conspiracy allegationand, after full presentation of evidence by the petitioner,granted a directed verdict in favor of the respondent onthe custom allegation. Both decisions rested on con-clusions that there were no issues of fact supportedby sufficient evidence to require a jury trial. I thinkthe trial court, and the Court of Appeals which affirmed,were wrong in granting summary judgment on the con-spiracy allegation. And—assuming for present purposesthat the trial court's statutory interpretation concerning"custom and usage" was correct—it was equally wrong

To: TheMr.Mr.

VMr.,Mr.Mr.Mr.Mr.

Chief JusticeJustice DouglasJustice HarlanJustice BrennanJustice Ste7art77—,Justice 7hiteJustice Marshal/Justic.a BIackmialf;f

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3

SUPREME COURT. OF THE UNITED STATEFrom: Black,

No. 79.—OCTOBER TERM, 1969Circulated-

On Writ of Certiorari tREtkafrculat ed • MAY 2 8 197United States Court ofAppeals for the SecondCircuit.

Sandra Adickes, Petitioner,v.


• I.

I

[June 1, 1970]

MR. JUSTICE BLACK, concurring in the judgment.The petitioner, Sandra Adickes, brought suit against

the respondent, S. H. Kress & Co., to recover damagesfor alleged violations of 42 U. S. C. § 1983. In onecount of her complaint she alleged that a police officerof the City of Hattiesburg, Mississippi, had conspiredwith employees of Kress to deprive her of rights securedby the Constitution and that this joint action of a stateofficial and private individuals was sufficient to consti-tute a violation of § 1983. She further alleged in anothercount that Kress' refusal to serve her while she wasin the company of Negroes was action "under colorof" a custom of refusing to serve Negroes and whitestogether in Mississippi, and that this action was a vio-lation of § 1983. The trial judge granted a summaryjudgment in favor of Kress on the conspiracy allegationand, after full presentation of evidence by the petitioner,granted a motion for a directed verdict in favor of therespondent on the custom allegation. Both decisionsrested on conclusions that there were no issues of factsupported by sufficient evidence to require a jury trial.I think the trial court and the Court of Appeals whichaffirmed were wrong in allowing summary judgment onthe conspiracy allegation. And—assuming for presentpurposes that the trial court's statutory interpretationconcerning "custom and usage" was correct—it was also

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The 7,at'Mr. Justice BlackYr. Justice aarlanMr. Justice BrennanMr. Just ice Stewart

WhiteJUL t.:1C3 Fortas

Mr. Justice Marshall

SUPREME COURT OF THE UNITED STATESFrom: Douglas, J.

No. 79.—OCTOBER TERM, 1969 3Circulated:



On Writ of Certiorark,*.euiat edUnited States Court ofAppeals for the SecondCircuit.

• [March —, 1970]

MR. JUSTICE DOUGLAS, dissenting in part.

The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 42".U. S. C. § 1983, is 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 Hamil-tonian sense :1

"It is essential to the idea of a law that it beattended with a sanction; or, in other words, apenalty or punishment for disobedience. If there-be no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will,in fact, amount to nothing more than advice or-recommendation. This penalty, whatever, it maybe, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by militaryforce; by the COERCION of the magistracy, or bythe COERCION of arms."

The Court in effect makes "custom" as used in the stat-ute a synonym for "statute, ordinance, regulation." Butthe draftsmen used the "custom" of a State, not as a syno-nym, but as a species of discrimination separate anddistinct from "law" in the usual sense.

The Court seems to be bothered lest it "transform pri-vate predilections into compulsory rules of behavior that

1 The Federalist Papers, No. 15.

Z°: The Cbier JusttcoIr.r• justice Blaa!!'r.• Justi ce RarzmMr, Justice Bren: .. ;TS:., Justice St elfv fL7/-• Justice e3 1,1r.

SUPREME COURT OF THE UNITED STATES

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To : The C7-!:j1.2StiC3 (

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SUPREME COURT OF THE UNITED STABS' 1331-1:-71a:'''

NO. 79.—OCTOBER TERM, 1969Circulated: •

ReciOn Writ of Certiorari to theSandra Adickes, Petitioner,

United States Court ofv.S. H. Kress and Company. Appeals for the SecondCircuit.

[March —, 1970] f.

MR. JUSTICE DOUGLAS, dissenting in part. •The statutory words "under color of any statute, ordi-

nance, regulation, custom or usage of any State," 42U. 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 Hamil-tonian sense:

"It is essential to the idea of a law that it beattended with a sanction; or, in other words, apenalty or punishment for disobedience. If therebe no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will,in fact, amount to nothing more than advice orrecommendation. This penalty, whatever, it maybe, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by militaryforce; by the COERCION of the magistracy, or bythe COERCION of arms."

The Court in effect makes "custom," as used in thestatute, a synonym for "statute, ordinance, regulation."But the draftsmen used the "custom" of a State, not asa synonym, but as a species of discrimination separateand distinct from "law" in the usual sense.


2,7SUPREME COURT OF THE UNITED STATES

No. 7.9.—OCTOBER TER VI, 1969

On Writ of Certiorari to the-United States Court ofAppeals for the Second.Circuit.

[March —, 1970]


The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 42U. S. C. § 1983, are seriously emasculated by today'sruling. Custom, it is said, must have "the force of law";and "law," as I read the opinion, is used in the Hamil-tonian sense:

"It is essential to the idea of a law that it beattended with a sanction; or, in other words, apenalty or punishment for disobedience. If therebe no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will,in fact, amount to nothing more than advice orrecommendation. This penalty, whatever, it maybe, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by militaryforce; by the COERCION of _the magistracy, or bythe COERCION of arms."






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To: The Ch i lf JurticeMr. Just co BlackYr. :rustic:3 Harlan11r. J.p 7tice Brennan

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SUPREME COURT OF THE UNITED STATESFrom: Dcuslas, J.

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No. 79.—OCTOBER TERM, 1969 Circulated:

Sandra Adickes, Petitioner,1 On Writ of Certioralietuithalat ed:United States Court of

v.Appeals for the Second

S. H. Kress and Company. Circuit.

[March —, 1970]


The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 42U. S. C. § 1983, are seriously emasculated by today'sruling. Custom, it is said, must have "the force of law";and "law," as I read the opinion, is used in the Hamil-tonian sense:i

-y

c"It is essential to the idea of a law that it be cattended with a sanction; or, in other words, a 00

penalty or punishment for disobedience. If there 0t

be no penalty annexed to disobedience, the resolu- 0.

tions or commands which pretend to be laws will, 10o

in fact, amount to nothing more than advice or rrecommendation. This penalty, whatever, it may

be, can only be inflicted in two ways: by the agency r

of the courts and ministers of justice, or by military roforce; by the COERCION of the magistracy, or bythe COERCION of arms." 0

cThe Court in effect makes "custom," as used in the ii

statute, a synonym for "statute, ordinance, regulation." c5But the draftsmen used the "custom" of a State, not as C

a synonym, but as a species of discrimination separate0and distinct from "law" in the usual sense. o


0

I

To: The Chief JusticeMr. Justice BlackMr. Justice Harlan

7

Mr. Justice. BrennanMr. Justice Stewart

SUPREME COURT OF THE UNITED rATt

sM,r. Justice WhiteLice Fortestice Marshall

NO. 79.—OCTOBER TERM, 1969From: Douglas, J.



On Writ of Cert,i9.1Aghtatte:United State's Court ofAppeals for .4c, -spp34(1,-Circuit.

L1 7 0

[March —, 1970]


The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 42U. S. C. § 1983, are seriously emasculated by today'sruling. Custom, it is said, must have "the force of law";and "law," as I read the opinion, is used in the Hamil-tonian sense:1

"It is essential to the idea of a law that it beattended with a sanction; or, in other words, apenalty or punishment for disobedience. If therebe no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will,in fact, amount to nothing more than advice orrecommendation. This penalty, whatever, it maybe, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by militaryforce; by the COERCION of the magistracy, or bythe COERCION of arms."




To: The C-1'2:7 3,2r:ticsMr. Ju:5t..: 9

• Mr. Harlan

. Mr.Mr .

8.


From:NO. 79.—OCTORER TERM, 1969

Circulated:On Writ of Certiorari to the

United States Coate3aula t ed :Appeals for the SecondCircuit.

[May —, 1970]


S. H. Kress and Company.,


The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 42U. S. C. § 1983, are seriously emasculated by today'sruling. Custom, it is said, must have "the force of law";and "law," as I read the opinion, is used in the Hamil-tonian sense.'

The Court in effect makes "custom," as used in thestatute, a synonym for "statute, ordinance, regulation."But the draftsmen used the "custom" of a State, not as-a synonym, but as a species of discrimination separateand distinct from "law" in the usual sense.

The Court seems to be bothered lest it "transform pri-vate predilections into compulsory rules of behavior thatcommand obedience." It therefore requires "the State's.participation" in the "development and maintenance"of the "custom" before "custom" can be actionable under

a The Federalist Papers, No. 15:"It is essential to the idea of a law that it be attended with a-

tion; or, in other words, a penalty or punishment for clisobe-If there be no penalty annexed to disobedience, the resolucominands which pretend to be laws will, in fact, amount to

than advice or recommendation. This penalty, what-can only be inflicted in two ways: by the agencyministers of justice, or by military force; by the

gistracy, or by the COERCION of arms!'

To: The CT-' 4 ', f JuticeMr. Juz — ce Bla-rkMr. Justice H'r1anMr. Justic? 3ren-,anMr. Justice Sfe-,artMr. J1stica e

9 Mr. Justice Marshall

SUPREME COURT OF THE UNITEDSITAMouslas , J.

NO. 79.—OCTOBER TERM, 1969 Circulat ed •

On Writ of CertiorAR etlareibla e d 5-- /1United States Court ofAppeals for the SecondCircuit.



6 - / 0

[May —, 1970]


The statutory words "under color of any statute, ordi-nance, 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 Hamil-tonian sense.'

The Court requires "state involvement" in the "de-velopment and maintenance" of a "custom" before that"custom" can be actionable under 42 U. S. C. § 1983.This "state involvement"—aside from the use of statutes,.ordinances, or regulations already covered in terms by§ 1983—is said to be satisfied only by other forms of"systematic official conduct" that impose sanctions or-withhold benefits. That construction of § 1983 is, toborrow a phrase from the first Mr. Justice Harlan, "too

The Federalist Papers, 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 disobe-dience. If there be no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will, in fact, amount tonothing more than advice or recommendation. This penalty, what-ever, it may be, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by military force; by theCOERCION of the magistracy, or by the COERCION of arms."

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SUPREME COURT OF THE UNITED STATW,.

No. 79.—OCTOBER TERM, 1969

•-•

.ndra Adickes, Petitioner,v.

S._ H. Kress and Company.

On Writ of Certiorari OitIPN:ulat e.ctUnited States Court otAppeals for the SecouktCircuit.

[May —, 1970]


'I

The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 4.;zU. S. C. § 1983, are seriously emasculated by today',Aruling. Custom, it is said, must have "the force of law"and "law," as I read the opinion, is used in the Hama_tonian sense.'

The Court requires "state involvement" in the “klk...velopment and maintenance" of a "custom" before thAt"custom" can be actionable under 42 U. S. C. § 19,sasThis "state involvement"—aside from the use of statutvs,ordinances, or regulations already covered in terms by

1983—is said to be satisfied only by other forms of"systematic official conduct" that impose sanctions orwithhold benefits. That construction of § 1983 is, toborrow a phrase from the first Mr. Justice Harlan, "t(10

1- The Federalist Papers, No. 15:"It is essential to the idea of a law that it be attended with

sanction; or, in other words, a penalty or punishment for ditiubo.dience. If there be no penalty annexed to disobedience, the remullt.tions or commands which pretend to be laws will, in fact, amount tonothing more than advice or recommendation. This penalty, what-ever, it may be, can only be inflicted in two ways: by the agenuyof the courts and ministers of justice, or by military force; by theCOERCION of the magistracy, or by the COERCION of arms,"

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To: The chir.-rMr. r.,1.77 1(17, Tila',:<Mr. JuF.'tic:)Mr.Mr. `71-Mr. J...

•Mr.

SUPREME COURT OF THE UNITED STATESFrom: Douglas, J.

NO. 79.—OCTOBER TERM, 1969Circulated:

On Writ of Certiorari tilthcrcc culated: United States Court oAppeals for the SecondCircuit.

Sandra Adickes, Petitioner,


[May —, 1970]


The statutory words "under color of any statute, ordi-nance, regulation, custom or usage of any State," 42U. S. C. § 1983, are seriously emasculated by today'sruling. Custom, it is said, must have "the force of law";and "law," as I read the opinion, is used in the Hamil-tonian sense.'

The Court requires "state involvement" in the "de-velopment and maintenance" of a "custom" before that"custom" can be actionable under 42 U. S. C. § 1983.This "state involvement"—aside from the use of statutes,.ordinances, or regulations already covered in terms by§ 1983—is said to be satisfied only by other forms of"systematic official conduct" that impose sanctions orwithhold benefits. That construction of § 1983 is, to-borrow a, phrase from the first Mr. Justice Harlan, "too.

The Federalist Papers, 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 disobe-•dience. If there be no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will, in fact, amount tonothing more than advice or recommendation. This penalty, what-ever, it may be, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by military force; by theCOERCION of the magistracy, or by the COERCION of arms."'

From: Douglas, J.No. 79.—OCTOBER TERM, 1969

To: The Chief JusticeMr. Justice BlackMr. Justice HarlanMr. Justice BrentlanMr. Justice StewartMr. Justice White i12 Mr. Justice MarshallMr. Justice Blackmun

SUPRE}JR COURT OF THE UNITED STATES •

1

Circulated ..0

, On Writ of Certiorari to theSandra Adickes, Petitioner,United Statei T,CtAitt;-=-16f d: ,v.Appeals for the Second t

tS. H. Kress and Company. Circuit. ; tc

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c

The statutory words "under color of any statute, ordi-nance, regulation, custom or usage, of any State," 42U. S. C. § 1983, are seriously emasculated by today'sruling. Custom, it is said, must have "the force of law";and "law," as I read the opinion, is used in the Hamil-tonian sense.'

The Court requires "state involvement" in the "de-velopment and maintenance" of a "custom" before that"custom" can be actionable under 42 U. S. C. § 1983.This "state involvement"—aside from the use of statutes,ordinances, or regulations already covered in terms by§ 1983—is said to be satisfied only by other forms of"systematic official conduct" that impose sanctions orwithhold benefits. That construction of § 1983 is, toborrow a phrase from the first Mr. Justice Harlan, "too

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 disobe-dience. If there be no penalty annexed to disobedience, the resolu-tions or commands which pretend to be laws will, in fact, amount tonothing more than advice or recommendation. This penalty, what-ever it may be, can only be inflicted in two ways: by the agencyof the courts and ministers of justice, or by military force; by theCOERCION of the magistracy, or by the COERCION of arms."

Cr.c

4

[June 1, 1970]


To: The Chief JusticeMr. Justice BlackMr. Justice DouglasMr. Justice Brennan ■e/.

3Mr. Justice StewartMr. Justice White !t

SUPREME COURT OF THE UNITED STATtg' JIL"tic9' c

1

United States CotAppeals for the bccoin7.Circuit.

uiat e dv. tS. H. Kress and Company.

5[March —, 1970]

C

MR. JUSTICE HARLAN delivered the opinion of theCourt.

Petitioner, Sandra Adickes, a white school teacher fromNew York, brought this suit in the United States DistrictCourt for the Southern District of New York againstrespondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for alleged violationsof her constitutional rights. The suit arises out ofKress' refusal to serve lunch to Miss Adickes at itsrestaurant facilities in its Hattiesburg, Mississippi,store on August 14, 1964, and Miss Adickes' subsequentarrest upon her departure from the store by the Hatties-burg police on a charge of vagrancy. At the time ofboth the refusal to serve and her arrest Miss Adickes waswith six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom School" where she wasteaching that summer.

1 42 U. S. C. § 1983 provides:"Every person who, under color of any statute, ordinance, regula-

tion, custom or usage, of any State or Territory, subjects, or causesto be subjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of any rights,privileges, or immunities secured by the Constitution and laws, shallbe liable to the party injured in an action at law, suit in equity,or other proper proceeding for redress."

From: Harlan, J.

tiRA 7 19'11Sandra Adickes, Petitioner, On Writ of Certiorarieribr

th _cuelat ea. :


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No. 79.—OCTOBER TERM, 1969 To: The Chief Justice

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nited States Coii: Justice

BlackSandra .Adickes, Petitioner, On Writ of Certiorari Ito.thalst ice Dougla s 17'

S. H. Kress and Company. Appeals for the Siteri.:.Z

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lst ice Br ennanv. ~,awart

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P. .11-:.strIr it, e

[March —, 1970]

Mr. au .,;t .Ice 1J:arzh

[M

Circuit.

. J.MR. JUSTICE HARLAN delivered the opinijri'af fife:

Court. Circulated:Petitioner, Sandra Adickes, a white school teacher from

New York, brought this suit in the United StatesDistrict*--' 7, 7- '3. 10R-1-94970Court for the Southern District of New York againstrespondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for alleged violationsof her constitutional rights. The suit arises out ofKress' refusal to serve lunch to Miss Adickes at itsrestaurant facilities in its Hattiesburg, Mississippi,.store on August 14, 1964, and Miss Adickes' subsequentarrest upon her departure from the store by the Hatties-burg police on a charge of vagrancy. At the time ofboth the refusal to serve and her arrest Miss Adickes waswith six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom-. School" where she wasteaching that summer.


tion, custom or usage, of any State or Territory, subjects, or causesto be subjected, any citizen of . the United States or other personwithin the jurisdiction thereof to the deprivation of any rights,.privileges, or immunities secured by the Constitution and laws, shallbe liable to the party injured in an action at law, suit in equity,.or other proper proceeding for redress."

STYLISTIC CHANGES THROUGHOuT„

SEE PAGES:

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SUPREME COURT OF THE UNITED STATESc

II

No. 79.—O CTOBER TERM, 1969ii

[March —, 1970]

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C;J::1;.sssiJustice 1; ti al

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Sandra Adickes, Petitioner.

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MR. JUSTICE HARLAN delivered the opinion i C4r6hq Harlan, J S

. 1.,Court.y 4

Petitioner, Sandra Adickes, a white school teacherQUAPlated`"' g

New York, brought this suit in the United States D istrictCourt for the Southern District of New York a

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1 42 U. S. C. § 1983 provides:"Every person who, under color of any statute, ordinance, reg,u1a-

Van, custom or usage, of any State or Territory, subjects, or causesto be subjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of any rights,privileges, or immunities secured by the Constitution and laws, shallbe Fable to the party injured in an action at law, suit in equity,or other proper proceeding for redress."

respondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for alleged violationsof her constitutional rights. The suit arises out ofKress' refusal to serve lunch to Miss Adickes at itsrestaurant facilities in its Hattiesburg, Mississippi,store on August 14, 1964, and Miss Adickes' subsequentarrest upon her departure from the store by the Hatties-burg police on a charge of vagrancy. At the time ofboth the refusal to serve and her arrest Miss Adickes waswith six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom School" where she wasteaching that summer. Unlike Miss Adickes, the stu-dents were offered service, and were not arrested.

STYLISTIC CHANGES THROUGHOUT.SEE PAGES:41 7 -2 2(a d- 2 qta WC., Ma It bq 711- 41%-.(-

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ief JusticeiiSUPREME COURT OF THE UNITED 1'§i; !N N," Stice BlackMr. Justice Douglas ._,,Mr. Justice Brennan 1.-'Mr. Justice Stewart


Mr. Justice Whitec 3 Mqrshall

On Writ of Certiorarimp. tin is.,Sandra Adickes, Petitioner,United States Court of

V. Appeals for the SecondS. H. Kress and Company. Circuit. From: Harlan, J.

[May —, 1970] Circulated:

MR. JUSTICE HARLAN delivered the opiRisonagfuthtellAY 5 1970Court.

Petitioner, Sandra Adickes, a white school teacher fromNew York, brought this suit in the United States DistrictCourt for the Southern District of New York againstrespondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for an alleged viola-tion of her constitutional rights under the Equal Pro-tection Clause of the Fourteenth Amendment. The suitarises out of Kress' refusal to serve lunch to Miss Adickesat its restaurant facilities in its Hattiesburg, Missis-sippi, store on August 14, 1964, and Miss Adickes' sub-sequent arrest upon her departure from the store by theHattiesburg police on a charge of vagrancy. At the timeof both the refusal to serve and her arrest Miss Adickeswas with six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom School" where she wasteaching that summer. Unlike Miss Adickes, the stu-dents were offered service, and were not arrested.



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No. 79.-OCTOBER TERM, 1969

,,On Writ of Certiorari to theSandra Adickes, Petitioner,

United States Court ofV.

SecondtheforAppealsS. H. Kress and Company. Circuit.

- [May —, 1970]


Petitioner, Sandra Adickes, a white school teacher fromNew York, brought this suit in the United States DistrictCourt for the Southern District of New York againstrespondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for an alleged viola-tion of her constitutional rights under the Equal Pro-tection Clause of the Fourteenth Amendment. The suitarises out of Kress' refusal to serve lunch to Miss Adickesat its restaurant facilities in its Hattiesburg, Missis-sippi, store on August 14, 1964, and Miss Adickes' sub-sequent arrest upon her departure from the store by theHattiesburg police on a charge of vagrancy. At the timeof both the refusal to serve and her arrest Miss Adickeswas with six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom School" where she wasteaching that summer. Unlike Miss Adickes, the stu-dents were offered service, and were not arrested.



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On Writ of Certiorari to theUnited States Court ofAppeals for the SecondCircuit.

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[June 1, 1970]


Petitioner, Sandra Adickes, a white school teacher fromNew York, brought this suit in the United States DistrictCourt for the Southern District of New York againstrespondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for an alleged viola-tion of her constitutional rights under the Equal Pro-tection Clause of the Fourteenth Amendment. The suitarises out of Kress' refusal to serve lunch to Miss Adickesat its restaurant facilities in its Hattiesburg, Missis-sippi, store on August 14, 1964, and Miss Adickes' sub-sequent arrest upon her departure from the store by theHattiesburg police on a charge of vagrancy. At the timeof both the refusal to serve and the arrest Miss Adickeswas with six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom School" where she wasteaching that summer. Unlike Miss Adickes, the stu-dents were offered service, and were not arrested.

1 42. U. S. C. § 1983 provides:"Every person who, under color of any statute, ordinance, regula-

tion, custom or usage, of any State or Territory, subjects, or cause&to be subjected, any citizen of the United States or other personwithin 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."

76, (7, 20/2/,23 2r

NOTICE: This opinion is subject to formal revision before putSatito ghe Chief Justicein the preliminary print of the United States Reports. Readers are rer,quested to notify the Reporter of Decisions, Supreme Court of thell-•United States, Washington, D.C. 20543, of any typographical or other,.formal errors, in order that corrections may be made before the preual-•liminary print goes to press. Mr.

SUPREME COURT OF THE UNITED STAIUMr.

No. 79.—OcroBER. TERM, 1969 Mr.



[June 1, 1970]

On Writ of Certiorari to theUnited States (AMA: Marian, J.Appeals for the SecondCircuit. Circulated:

Recirculated-001111MR. JUSTICE HARLAN delivered the opinion of the

Court.Petitioner, Sandra Adickes, a white school teacher from

New York, brought this suit in the United States DistrictCourt for the Southern District of New York againstrespondent S. H. Kress & Co. ("Kress") to recoverdamages under 42 U. S. C. § 1983 1 for an alleged viola-tion of her constitutional rights under the Equal Pro-tection Clause of the Fourteenth Amendment. The suitarises out of Kress' refusal to serve lunch to Miss Adickesat its restaurant facilities in - its Hattiesburg, Missis-sippi, store on August 14, 1964, and Miss Adickes' sub-sequent arrest upon her departure from the store by theHattiesburg police on a charge of vagrancy. At the timeof both the refusal to serve and the arrest, Miss Adickeswas with six young people, all Negroes, who were her stu-dents in a Mississippi "Freedom School" where she wasteaching that summer. Unlike Miss Adickes, the stu-dents were offered service, and were not arrested.

1 42 U. S. C. § 1983 provides:'Every person who, under color of any statute, ordinance, regula-


JusticeJusticeJusticeJusticeJusticeJusticeJustice

BlackDouglasBrennan V.StewartWhiteMarshallBlackmun

4.0

2

SUPREME COURT OF THE UNITED STATE


On Writ of Certiorari to theSandra Adickes, Petitioner,United States Court of

v.Appeals for the Second.

S. H. Kress and Company., Circuit.

[May —, 1970]

MR. JUSTICE BRENNAN, concurring in part and dis-senting in part.

Petitioner contends that in 1964 respondent, whileacting "under color of ... statute" or "under color of[a] custom or usage" of the State of Mississippi, sub-jected her to the deprivation of her right under the EqualProtection Clause of the Fourteenth Amendment not tobe denied service in respondent's restaurant due to racialdiscrimination in which the State of Mississippi was in-volved, and that therefore respondent is liable to her indamages under 42 U. S. C. § 1983. I agree with the opin-ion of MR. JUSTICE HARLAN that to recover under § 1983petitioner must prove two separate and independent ele-ments: first, that respondent subjected her to thedeprivation of a right "secured by the Constitution andlaws"; and, second, that while so doing respondent actedunder color of a statute, ordinance, regulation, custom,or usage of the State of Mississippi. •

Whether a person suing under § 1983 must showstate action in the first element--the deprivation of aright "secured by the Constitution and laws"—dependson the nature of the particular right asserted. Forexample, a person may be deprived of a right secured bythe Constitution and 42 U. S. C. § 1982 by a private per-son acting completely independently of state government.See Jones v. Alfred H. Mayer Company, 392 U. S. 409(1968). On the other hand, the constitutional right toequal protection of the laws, unelaborated by any stat-


No. 79.--OCTOBER TERM, 1969

Certiorari to the •■•Sandra Adickes, Petitioner, On Writ of

v.S. H. Kress and Company.

UnitedAppealsCircuit.

States Court offor the Second. c

• ttttc[June 1, 1970]

Ih

MR. JUSTICE BRENNAN, concurring in part and dis-senting in part.

Petitioner contends that in 1964 respondent, while act-ing "under color of . . . statute" or "under color of ..custom or usage" of the State of Mississippi, sub-jected her to the deprivation of her right under the EqualProtection Clause of the Fourteenth Amendment not to •be denied service in respondent's restaurant due to racialdiscrimination in which the State of Mississippi was in-volved, and that therefore respondent is liable to her indamages under 42 U. S. C. § 1983. To recover under-§ 1983 petitioner must prove two separate and independ-ent elements: first, that respondent subjected her to the-deprivation of a right "secured by the Constitution andlaws"; 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 showstate action in the first element—the deprivation of aright "secured by the Constitution and laws"—depends.on the nature of the particular right asserted. Forexample, a person may be deprived of a right secured bythe Constitution and 42 U. S. C. § 1982 by a private per-son acting completely independently of state government.See Jones v. Alfred H. Mayer Company, 392 U. S. 409(1968). On the other hand, the constitutional right to-

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•

itprtntr Court of tfrr pnarb ;5tatrsPagfrington, I. 20Pi,g

CHAMBERS Or

JUSTICE POTTER STEWART

March 24, 1970

No. 79 - Adickes v. Kress & Co.

Dear John,

I am glad to join the opinion you havewritten for the Court in this case.

Sincerely yours,c,

0 g, c

01

Fs- 1-gCoI-

Mr. Justice Harlan

.Copies to the Conference

CMAIMISERS OP

JUSTICE POTTER STEWART

Sincerely yours,

No. 79 - Adickes v. Kress

Dear John,

I am glad to join your revised opinion_ _ -as circulated May 5.

. May 12 1970

Mr. Justice HarlanCopies to the Conference

I Join your opinion in thiscase, acquiescing in your treatmentof the conspiracy matter cc which Ihad tentative views the other way.

lir Justice Harlan

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