U.S. Supreme Court Adickes v. S. H. Kress & Co., 398
U.S. 144 (1970) Adickes v. S. H. Kress &
Co. No. 79 Argued November 12,
1969 Decided June 1, 1970 398
U.S. 144 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus Petitioner is a white school teacher who was refused service in
respondent's lunchroom when she was accompanied by six Negro
students, and who was arrested for vagrancy by the Hattiesburg,
Mississippi, police when she left respondent's premises. She filed
a complaint in the Federal District Court to recover damages
alleging deprivation of her right under the Equal Protection Clause
not to be discriminated against on the basis of race. The complaint
had two counts, each based on 42 U.S.C. § 1983: (1) that she had
been refused service because she was a "Caucasian in the company of
Negroes" (under which she sought to prove that the refusal to serve
her was pursuant to a "custom of the community to segregate races
in public eating places") and (2) that the refusal of service and
the arrest were the product of a conspiracy between respondent and
the police (under which she alleged that the policeman who arrested
her was in the store at the time of the refusal of service). The
District Court ruled that, to recover under the first count,
petitioner would have to prove a specific "custom of refusing
service to whites who were in the company of Negroes" that was
"enforced by the State" under its criminal trespass statute. The
court directed a verdict for respondent on this count because
petitioner failed to prove other instances of whites having been
refused service while in company of Negroes in Hattiesburg. The
Court of Appeals affirmed, holding that § 1983 requires the
discriminatory custom be proved to exist in the locale where the
discrimination took place and in the State generally, and that
petitioner's proof was deficient on both points. The second count
was dismissed before trial by the District Court on a motion for
summary judgment, since petitioner "failed to allege any facts from
which a conspiracy might be inferred." The Court of Appeals
affirmed this determination. Held: 1. The District Court, on the basis of this record, erred in
granting summary judgment on the conspiracy count. Pp. 398 U. S.
149 -161. Page 398 U. S. 145 (a) The involvement of a policeman, a state official, whether or
not his actions were lawful or authorized, in the alleged
conspiracy would plainly provide the state action needed to show a
direct violation of petitioner's Fourteenth Amendment rights
entitling her to relief under § 1983, and private persons involved
in such a conspiracy are acting "under color" of law, and can be
liable under § 1983. Pp. 398 U. S.
150 -152.

															(b) Respondent did not carry out its burden, as the party moving
for summary judgment of showing the absence of a genuine issue as
to any material fact, as it did not foreclose the possibility that
there was a policeman in the store while the petitioner was
awaiting service (from which the jury could infer an understanding
between the officer and an employee of respondent that petitioner
not be served), and its failure to meet that burden requires
reversal. Pp. 398 U. S.
153 -159.

															(c) Because respondent failed to meet its initial burden as the
party moving for summary judgment, petitioner was not required to
come forward with suitable opposing affidavits under Fed.Rule
Civ.Proc. 56(e). Pp. 398 U. S.
159 -161.

															2. Petitioner will have established a claim under § 1983 for
violation of her equal protection rights if she proves that she was
refused service by respondent because of a state-enforced custom
requiring racial segregation in Hattiesburg restaurants. Pp. 398 U. S.
161 -174.

															(a) Based upon the language of the statute legislative history,
and judicial decisions, the words "under color of a . . . custom or
usage, of [a] State," in § 1983, mean that the "custom or usage"
must have the force of law by virtue of the persistent practices of
state officials. Pp. 398 U. S.
162 -169.

															(b) Petitioner would have shown an abridgment of her
constitutional right of equal protection if she proved that
respondent refused her service because of a state-enforced custom
of racial segregation in public restaurants. Pp. 398 U. S.
169 -171.

															(c) The District Court erred in its implicit assumption that a
custom can have the force of law only if it is enforced by a state
statute. Pp. 398 U. S.
171 -172.

															(d) The District Court's ruling that proving a "custom" in this
case required demonstrating a specific practice of not serving
white persons in the company of Negroes in public restaurants was
too narrow as the relevant inquiry is whether there was a
longstanding and still prevailing state-enforced custom of
segregating the races in public eating places. P. 398 U. S.
173 . Page 398 U. S. 146 (e) The courts below erred in suggesting that the custom must
exist throughout the State, as a custom with the force of law in a
political subdivision can offend the Fourteenth Amendment even
though it lacks state-wide application. P. 398 U. S.
173 .

															409 F.2d 121, reversed and remanded.

															MR. 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 District Court for the
Southern District of New York against respondent S. H. Kress &
Co. ("Kress") to recover damages under 42 U.S.C. § 1983 [ Footnote 1 ] for an alleged violation of
her constitutional rights under the Equal Protection Clause of the
Fourteenth Amendment. The suit arises out of Kress' refusal to
serve lunch to Miss Adickes at its restaurant facilities in its
Hattiesburg, Mississippi, store on August 14, 1964, and Miss
Adickes' subsequent arrest upon her departure from the store by the
Hattiesburg police on a charge of vagrancy. At the time of both the
refusal to serve and the arrest, Miss Adickes was with six young
people, all Negroes, who were her students in a Mississippi
"Freedom School" where she was Page 398 U. S. 147 teaching that summer. Unlike Miss Adickes, the students were
offered service, and were not arrested.

															Petitioner's complaint had two counts, [ Footnote 2 ] each bottomed on § 1983, and each alleging
that Kress had deprived her of the right under the Equal Protection
Clause of the Fourteenth Amendment not to be discriminated against
on the basis of race. The first count charged that Miss Adickes had
been refused service by Kress because she was a "Caucasian in the
company of Negroes." Petitioner sought, inter alia, to
prove that the refusal to serve her was pursuant to a "custom of
the community to segregate the races in public eating places."
However, in a pretrial decision, 252 F.
Supp. 140 (1966), the District Court ruled that, to recover
under this count, Miss Adickes would have to prove that, at the
time she was refused service, there was a specific "custom . . . of
refusing service to whites in the company of Negroes," and that
this custom was "enforced by the State" under Mississippi's
criminal trespass statute. [ Footnote 3 ] Because petitioner was unable to prove at the
trial that there were other instances in Hattiesburg of a white
person having been refused service while in the company of
Negroes, Page 398 U. S. 148 the District Court directed a verdict in favor of respondent. A
divided panel of the Court of Appeals affirmed on this ground, also
holding that § 1983

															"requires that the discriminatory custom or usage be proved to
exist in the locale where the discrimination took place, and in the
State generally,"

															and that petitioner's "proof on both points was deficient," 409
F.2d 121, 124 (1968).

															The second count of her complaint, alleging that both the
refusal of service and her subsequent arrest were the product of a
conspiracy between Kress and the Hattiesburg police, was dismissed
before trial on a motion for summary judgment. The District Court
ruled that petitioner had "failed to allege any facts from which a
conspiracy might be inferred." 252 F. Supp. at 144. This
determination was unanimously affirmed by the Court of Appeals, 409
F.2d at 126-127.

															Miss Adickes, in seeking review here, claims that the District
Court erred both in directing a verdict on the substantive count,
and in granting summary judgment on the conspiracy count. Last Term
we granted certiorari, 394 U.S. 1011 (1969), and we now reverse and
remand for further proceedings on each of the two counts.

															As explained in 398 U. S. because the respondent failed to show the absence of any disputed
material fact, we think the District Court erred in granting
summary judgment. With respect to the substantive count, for
reasons explained in 398 U. S. we
think petitioner will have made out a claim under § 1983 for
violation of her equal protection rights if she proves that she was
refused service by Kress because of a state-enforced custom
requiring racial segregation in Hattiesburg restaurants. We think
the courts below erred (1) in assuming that the only proof relevant
to showing that a custom was state-enforced related to the
Mississippi criminal trespass statute; (2) in defining the
relevant Page 398 U. S. 149 state-enforced custom as requiring proof of a practice both in
Hattiesburg and throughout Mississippi, of refusing to serve white
persons in the company of Negroes, rather than simply proof of
state-enforced segregation of the races in Hattiesburg
restaurants. I Briefly stated, the conspiracy count of petitioner's complaint
made the following allegations: while serving as a volunteer
teacher at a "Freedom School" for Negro children in Hattiesburg,
Mississippi, petitioner went with six of her students to the
Hattiesburg Public Library at about noon on August 14, 1964. The
librarian refused to allow the Negro students to use the library,
and asked them to leave. Because they did not leave, the librarian
called the Hattiesburg chief of police, who told petitioner and her
students that the library was closed, and ordered them to leave.
From the library, petitioner and the students proceeded to
respondent's store, where they wished to eat lunch. According to
the complaint, after the group sat down to eat, a policeman came
into the store "and observed [Miss Adickes] in the company of the
Negro students." A waitress then came to the booth where petitioner
was sitting, took the orders of the Negro students, but refused to
serve petitioner because she was a white person "in the company of
Negroes." The complaint goes on to allege that, after this refusal
of service, petitioner and her students left the Kress store. When
the group reached the sidewalk outside the store, "the Officer of
the Law who had previously entered [the] store" arrested petitioner
on a groundless charge of vagrancy and took her into custody.

															On the basis of these underlying facts, petitioner alleged that
Kress and the Hattiesburg police had conspired (1) "to deprive
[her] of her right to enjoy equal treatment and service in a place
of public accommodation"; Page 398 U. S. 150 and (2) to cause her arrest "on the false charge of
vagrancy." A. CONSPIRACIES BETWEEN PUBLIC OFFICIALS AND PRIVATE PERSONS -- GOVERNING PRINCIPLES The terms of § 1983 make plain two elements that are necessary
for recovery. First, the plaintiff must prove that the defendant
has deprived him of a right secured by the "Constitution and laws"
of the United States. Second, the plaintiff must show that the
defendant deprived him of this constitutional right "under color of
any statute, ordinance, regulation, custom, or usage, of any State
or Territory." This second element requires that the plaintiff show
that the defendant acted "under color of law." [ Footnote 4 ]

															As noted earlier, we read both counts of petitioner's complaint
to allege discrimination based on race in violation of petitioner's
equal protection rights. [ Footnote
5 ] Few principles Page 398 U. S. 151 of law are more firmly stitched into our constitutional fabric
than the proposition that a State must not discriminate against a
person because of his race Page 398 U. S. 152 or the race of his companions, or in any way act to compel or
encourage racial segregation. [ Footnote 6 ] Although this is a lawsuit against a private
party, not the State or one of its officials, our cases make clear
that petitioner will have made out a violation of her Fourteenth
Amendment rights and will be entitled to relief under § 1983 if she
can prove that a Kress employee, in the course of employment, and a
Hattiesburg policeman somehow reached an understanding to deny Miss
Adickes service in the Kress store, or to cause her subsequent
arrest because she was a white person in the company of
Negroes.

															The involvement of a state official in such a conspiracy plainly
provides the state action essential to show a direct violation of
petitioner's Fourteenth Amendment equal protection rights, whether
or not the actions of the police were officially authorized, or
lawful; Monroe v. Pape, 365 U. S. 167 (1961); see United States v. Classic, 313 U.
S. 299 , 313 U. S. 326 (1941); Screws v. United States, 325 U. S.
91 , 325 U. S.
107 -111 (1945); Williams v. United States, 341 U. S. 97 , 341 U. S. 99 -100
(1951). Moreover, a private party involved in such a conspiracy,
even though not an official of the State, can be liable under §
1983.

															"Private persons, jointly engaged with state officials in the
prohibited action, are acting 'under color' of law for purposes of
the statute. To act 'under color' of law does not require that the
accused be an officer of the State. It is enough that he is a
willful participant in joint activity with the State or its
agents," United States v. Price, 383 U.
S. 787 , 383 U. S. 794 (1966). [ Footnote 7 ] Page 398 U. S. 153 SUMMARY JUDGMENT We now proceed to consider whether the District Court erred in
granting summary judgment on the conspiracy count. In granting
respondent's motion, the District Court simply stated that there
was

															"no evidence in the complaint or in the affidavits and other
papers from which a 'reasonably minded person' might draw an
inference of conspiracy,"

															252 F. Supp. at 144, aff'd, 409 F.2d at 126-127. Our
own scrutiny of the factual allegations of petitioner's complaint,
as well as the material found in the affidavits and depositions
presented by Kress to the District Court, however, convinces us
that summary judgment was improper here, for we think respondent
failed to carry its burden of showing the absence of any genuine
issue of fact. Before explaining why this is so, it is useful to
state the factual arguments, made by the parties concerning summary
judgment, and the reasoning of the courts below.

															In moving for summary judgment, Kress argued that "uncontested
facts" established that no conspiracy existed between any Kress
employee and the police. To support this assertion, Kress pointed
first to the statements in the deposition of the store manager (Mr.
Powell) that (a) he had not communicated with the police, [ Footnote 8 ] and that (b) he had, by a
prearranged tacit Page 398 U. S. 154 signal, [ Footnote 9 ] ordered
the food counter supervisor to see that Miss Adickes was refused
service only because he was fearful of a riot in the store by
customers angered at seeing a "mixed group" of whites and blacks
eating together. [ Footnote
10 ] Kress also relied on affidavits from the Hattiesburg Page 398 U. S. 155 chief of police, [ Footnote
11 ] and the two arresting officers, [ Footnote 12 ] to the effect that store manager Powell
had not requested that petitioner be arrested. Finally, Kress
pointed to the statements in petitioner's own deposition that she
had no knowledge of any communication between any Kress employee
and any member of the Hattiesburg police, and was relying on
circumstantial evidence to support her Page 398 U. S. 156 contention that there was an arrangement between Kress and the
police.

															Petitioner, in opposing summary judgment, pointed out that
respondent had failed in its moving papers to dispute the
allegation in petitioner's complaint, a statement at her
deposition, [ Footnote 13 ]
and an unsworn statement by a Kress employee, [ Footnote 14 ] all to the effect that there was a
policeman in the store at the time of the refusal to serve her, and
that this was the policeman who subsequently Page 398 U. S. 157 arrested her. Petitioner argued that, although she had no
knowledge of an agreement between Kress and the police, the
sequence of events created a substantial enough possibility of a
conspiracy to allow her to proceed to trial, especially given the
fact that the noncircumstantial evidence of the conspiracy could
only come from adverse witnesses. Further, she submitted an
affidavit specifically disputing the manager's assertion that the
situation in the store at the time of the refusal was "explosive,"
thus creating an issue of fact as to what his motives might have
been in ordering the refusal of service.

															We think that, on the basis of this record, it was error to
grant summary judgment. As the moving party, respondent had the
burden of showing the absence of a genuine issue as to any material
fact, and, for these purposes, the material it lodged must be
viewed in the light most favorable to the opposing party. [ Footnote 15 ] Respondent here did not
carry its burden, because of its failure to foreclose the
possibility that there was a policeman in the Kress store while
petitioner was awaiting service, and that this policeman reached an
understanding with some Kress employee that petitioner not be
served.

															It is true that Mr. Powell, the store manager, claimed in his
deposition that he had not seen or communicated with a policeman
prior to his tacit signal to Miss Baggett, the supervisor of the
food counter. But respondent did not submit any affidavits from
Miss Baggett, [ Footnote 16 ]
or from Page 398 U. S. 158 Miss Freeman, [ Footnote
17 ] the waitress who actually refused petitioner service,
either of whom might well have seen and communicated with a
policeman in the store. Further, we find it particularly noteworthy
that the two officers involved in the arrest each failed in his
affidavit to foreclose the possibility (1) that he was in the store
while petitioner was there; and (2) that, upon seeing petitioner
with Negroes, he communicated his disapproval to a Kress employee,
thereby influencing the decision not to serve petitioner.

															Given these unexplained gaps in the materials submitted by
respondent, we conclude that respondent failed to fulfill its
initial burden of demonstrating what is a critical element in this
aspect of the case -- that there was no policeman in the store. If
a policeman were present, we think it would be open to a jury, in
light of the sequence that followed, to infer from the
circumstances that the policeman and a Kress employee had a
"meeting of the minds," and thus reached an understanding that
petitioner should be refused service. Because,

															"[o]n summary judgment, the inferences to be drawn from the
underlying facts contained in [the moving party's] materials must
be viewed in the light Page 398 U. S. 159 most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.
S. 654 , 369 U. S. 655 (1962), we think respondent's failure to show there was no
policeman in the store requires reversal.

															Pointing to Rule 56(e), as amended in 1963, [ Footnote 18 ] respondent argues that it was
incumbent on petitioner to come forward with an affidavit properly
asserting the presence of the policeman in the store, if she were
to rely on that fact to avoid summary judgment. Respondent notes in
this regard that none of the materials upon which petitioner relied
met the requirements of Rule 56(e). [ Footnote 19 ]

															This argument does not withstand scrutiny, however, for both the
commentary on and background of the 1963 amendment conclusively
show that it was not intended to modify the burden of the moving
party under Rule 56(c) to show initially the absence of a genuine
issue concerning any material fact. [ Footnote 20 ] The Advisory Committee Page 398 U. S. 160 note on the amendment states that the changes were not designed
to "affect the ordinary standards applicable to the summary
judgment." And, in a comment directed specifically to a contention
like respondent's, the Committee stated that,

															"[w]here the evidentiary matter in support of the motion does
not establish the absence of a genuine issue, summary judgment must
be denied even if no opposing evidentiary matter s
presented. [ Footnote
21 ]"

															Because respondent did not meet its initial burden of
establishing the absence of a policeman in the store, petitioner
here was not required to come forward with suitable opposing
affidavits. [ Footnote
22 ]

															If respondent had met its initial burden by, for example,
submitting affidavits from the policemen denying their presence in
the store at the time in question, Rule 56(e) would then have
required petitioner to have done more than simply rely on the
contrary allegation in her complaint. To have avoided conceding
this fact for purposes of summary judgment, petitioner would have
had to come forward with either (1) the affidavit of someone who
saw the policeman in the store or (2) an affidavit under Rule 56(f)
explaining why at that time it was impractical to do so. Even
though not essential here to defeat Page 398 U. S. 161 respondent's motion, the submission of such an affidavit would
have been the preferable course for petitioner's counsel to have
followed. As one commentator has said:

															"It has always been perilous for the opposing party neither to
proffer any countering evidentiary materials nor file a 56(f)
affidavit. And the peril rightly continues [after the amendment to
Rule 56(e)]. Yet the party moving for summary judgment has the
burden to show that he is entitled to judgment under established
principles; and if he does not discharge that burden, then he is
not entitled to judgment. No defense to an insufficient showing is
required."

															6 J. Moore, Federal Practice � 56.22 [2], pp. 2824-2825 (2d
ed.1966). II There remains to be discussed the substantive count of
petitioner's complaint, and the showing necessary for petitioner to
prove that respondent refused her service "under color of any . . .
custom, or usage, of [the] State" in violation of her rights under
the Equal Protection Clause of the Fourteenth Amendment. [ Footnote 23 ] Page 398 U. S. 162 A. CUSTOM OR USAGE We are first confronted with the issue of whether a "custom" for
purposes of § 1983 must have the force of law, or whether, as
argued in dissent, no state involvement is required. Although this
Court has never explicitly decided this question, we do not
interpret the statute against an amorphous backdrop.

															What is now 42 U.S.C. § 1983 came into existence as § 1 of the
Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The Chairman of
the House Select Committee which drafted this legislation described
[ Footnote 24 ] § 1 as modeled
after § 2 of the Civil Rights Act of 1866 -- a criminal provision
that also contained language that forbade certain acts by any
person "under color of any law, statute, ordinance, regulation, or
custom," 14 Stat. 27. In the Civil Rights Cases, 109 U. S. 3 , 109 U. S. 16 (1883), the Court said of this 1866 statute:

															"This law is clearly corrective in its Page 398 U. S. 163 character, intended to counteract and furnish redress against
State laws and proceedings, and customs having the force of
law, which sanction the wrongful acts specified."

															(Emphasis added.) Moreover, after an exhaustive examination of
the legislative history of the 1866 Act, both the majority and
dissenting opinions [ Footnote
25 ] in Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968), concluded that § 2 of the 1866 Civil
Rights Act was intended to be limited to "deprivations perpetrated under color of law.'" [ Footnote 26 ] (Emphasis added.) Quite apart from this Court's construction of the identical
"under color of" provision of § 2 of the 1866 Act, the legislative
history of § 1 of the 1871 Act, the lineal ancestor of § 1983, also
indicates that the provision in question here was intended to
encompass only conduct supported by state action. That such a
limitation was intended for § 1 can be seen from an examination of
the statements and actions of both the supporters and opponents of
the Ku Klux Klan Act. Page 398 U. S. 164 In first reporting the Committee's recommendations to the House,
Representative Shellabarger, the Chairman of the House Select
Committee which drafted the Ku Klux Klan Act, said that § 1
was,

															" in its terms, carefully confined to giving a civil action
for such wrongs against citizenship as are done under color of
State laws which abridge these rights. [ Footnote 27 ]"

															(Emphasis added.) Senator Edmunds, Chairman of the Senate
Committee on the Judiciary and also a supporter of the bill, said
of this provision:

															"The first section is one that I believe nobody objects to, as
defining the rights secured by the Constitution of the United
States when they are assailed by any State law or under color
of any State law, and it is merely carrying out the principles
of the civil rights bill, which have since become a part of the
Constitution. [ Footnote
28 ]"

															(Emphasis added.) Thus, in each House, the leader of those
favoring the bill expressly stated his understanding that § 1 was
limited to deprivations of rights done under color of law.

															That Congress intended to limit the scope of § 1 to actions
taken under color of law is further seen by contrasting its
legislative history with that of other sections of the same Act. On
the one hand, there was comparatively little debate over § 1 of the
Ku Klux Klan Act, and it was eventually enacted in form identical
to that, in which it was introduced in the House. [ Footnote 29 ] Its history thus stands in
sharp contrast to that of other sections Page 398 U. S. 165 of the Act. [ Footnote 30 ]
For example, § 2 of the 1871 Act, [ Footnote 31 ] a provision aimed at private conspiracies
with no "under color of law" requirement, created a great storm of
controversy, in part because it was thought to encompass private
conduct. Senator Thurman, for example, one of the leaders of the
opposition to the Act, although objecting to § 1 on other grounds,
admitted its constitutionality [ Footnote 32 ] and characterized it as "refer[ring] to a
deprivation under color of law, either statute law or custom or usage' which has become common law. "
[ Footnote 33 ] (Emphasis
added.) This same Senator insisted vociferously on the absence of
congressional power under § 5 of the Fourteenth Page 398 U. S. 166 Amendment to penalize a conspiracy of private individuals to
violate state law. [ Footnote
34 ] The comparative lack of controversy concerning § 1, in the
context of the heated debate over the other provisions, suggests
that the opponents of the Act, with minor exceptions, like its
proponents, understood § 1 to be limited to conduct under color of
law.

															In addition to the legislative history, there exists an unbroken
line of decisions, extending back many years, in which this Court
has declared that action "under color of law" is a predicate for a
cause of action under § 1983, [ Footnote 35 ] or its criminal counterpart, 18 U.S.C. §
242. [ Footnote 36 ] Moreover,
with the possible exception of an exceedingly opaque district court
opinion, [ Footnote 37 ] every
lower court opinion of which we are aware that has considered the
issue has concluded that a "custom or usage," for purposes, of §
1983 requires state involvement, and is not simply a practice that
reflects longstanding social habits, generally Page 398 U. S. 167 observed by the people in a locality. [ Footnote 38 ] Finally, the language of the statute
itself points in the same direction, for it expressly requires that
the "custom or usage" be that "of any state," not simply of the
people living in a state. In sum, against this background, we think
it clear that a "custom, or usage, of [a] State" for purposes of §
1983 must have the force of law by virtue of the persistent
practices of state officials.

															Congress included customs and usages within its definition of
law in § 1983 because of the persistent and widespread
discriminatory practices of state officials in some areas of the
post-bellum South. As Representative Garfield said:

															"[E]ven where the laws are just and equal on their face, yet, by
a systematic maladministration of them, or a neglect or refusal to
enforce their provisions, a portion of the people are denied equal
protection under them. [ Footnote
39 ]"

															Although not authorized by written law, such Page 398 U. S. 168 practices of state officials could well be so permanent and well
settled as to constitute a "custom or usage" with the force of
law.

															This interpretation of custom recognizes that settled practices
of state officials may, by imposing sanctions or withholding
benefits, transform private predilections into compulsory rules of
behavior no less than legislative pronouncements. If authority be
needed for this truism, it can be found in Nashville, C. &
St. L.R. Co. v. Browning, 310 U. S. 362 (1940), where the Court held that, although a statutory provision
suggested a different note, the "law" in Tennessee as established
by longstanding practice of state officials was that railroads and
public utilities were taxed at full cash value. What Justice
Frankfurter wrote there seems equally apt here:

															"It would be a narrow conception of jurisprudence to confine the
notion of 'laws' to what is found written on the statute books, and
to disregard the gloss which life has written upon it. Settled
state practice . . . can establish what is state law. The Equal
Protection Clause did not write an empty formalism into the
Constitution. Deeply embedded traditional ways of carrying out
state policy, such as those of which petitioner complains, are
often tougher and truer law than the dead words of the written
text." Id. at 310 U. S.
369 .

															And in circumstances more closely analogous to the case at hand,
the statements of the chief of police and mayor of New Orleans, as
interpreted by the Court Page 398 U. S. 169 in Lombard v. Louisiana, 373 U.
S. 267 (1963), could well have been taken by restaurant
proprietors as articulating a custom having the force of law. Cf. Garner v. Louisiana, 368 U. S. 157 , 368 U. S.
176 -185 (DOUGLAS, J., concurring) (1961); Wright v.
Georgia, 373 U. S. 284 (1963); Baldwin v. Morgan, 287 F.2d 750, 754 (C.A. 5th
Cir.1961). B. STATE ACTION -- 14TH AMENDMENT VIOLATION For petitioner to recover under the substantive count of her
complaint, she must show a deprivation of a right guaranteed to her
by the Equal Protection Clause of the Fourteenth Amendment. Since
the "action inhibited by the first section of the Fourteenth
Amendment is only such action as may fairly be said to be that of
the States," Shelley v. Kraemer, 334 U. S.
1 , 334 U. S. 13 (1948), we must decide, for purposes of this case, the following
"state action" issue: is there sufficient state action to prove a
violation of petitioner's Fourteenth Amendment rights if she shows
that Kress refused her service because of a state-enforced custom
compelling segregation of the races in Hattiesburg restaurants?

															In analyzing this problem, it is useful to state two polar
propositions, each of which is easily identified and resolved. On
the one hand, the Fourteenth Amendment plainly prohibits a State
itself from discriminating because of race. On the other hand, § 1
of the Fourteenth Amendment does not forbid a private party, not
acting against a backdrop of state compulsion or involvement, to
discriminate on the basis of race in his personal affairs as an
expression of his own personal predilections. As was said in Shelley v. Kraemer, supra, § 1 of "[t]hat Amendment erects
no shield against merely private conduct, however discriminatory or
wrongful." 334 U.S. at 334 U. S. 13 . Page 398 U. S. 170 At what point between these two extremes a State's involvement
in the refusal becomes sufficient to make the private refusal to
serve a violation of the Fourteenth Amendment is far from clear
under our case law. If a State had a law requiring a private person
to refuse service because of race, it is clear beyond dispute that
the law would violate the Fourteenth Amendment, and could be
declared invalid and enjoined from enforcement. Nor can a State
enforce such a law requiring discrimination through either
convictions of proprietors who refuse to discriminate, or trespass
prosecutions of patrons who, after being denied service pursuant to
such a law, refuse to honor a request to leave the premises.
[ Footnote 40 ]

															The question most relevant for this case, however, is a slightly
different one. It is whether the decision of an owner of a
restaurant to discriminate on the basis of race under the
compulsion of state law offends the Fourteenth Amendment. Although
this Court has not explicitly decided the Fourteenth Amendment
state action issue implicit in this question, underlying the
Court's decisions in the sit-in cases is the notion that a State is
responsible for the discriminatory act of a private party when the
State, by its law, has compelled the act. As the Court said in Peterson v. City of Greenville, 373 U.
S. 244 , 373 U. S. 248 (1963):

															"When the State has commanded a particular result, it has saved
to itself the power to determine that result, and thereby, 'to a
significant extent' has 'become involved' in it."

															Moreover, there is much support in lower court opinions for the
conclusion that discriminatory acts by private parties done under
the compulsion of state law offend the Fourteenth Page 398 U. S. 171 Amendment. In Baldwin v. Morgan, supra, the Fifth
Circuit held that

															"[t]he very act of posting and maintaining separate [waiting
room] facilities when done by the [railroad] Terminal as commanded
by these state orders is action by the state."

															The Court then went on to say:

															"As we have pointed out above, the State may not use race or
color as the basis for distinction. It may not do so by direct
action or through the medium of others who are under State
compulsion to do so. " Id. at 755-756 (emphasis added). We think the same
principle governs here.

															For state action purposes, it makes no difference, of course,
whether the racially discriminatory act by the private party is
compelled by a statutory provision or by a custom having the force
of law -- in either case, it is the State that has commanded the
result by its law. Without deciding whether less substantial
involvement of a State might satisfy the state action requirement
of the Fourteenth Amendment, we conclude that petitioner would show
an abridgment of her equal protection right if she proves that
Kress refused her service because of a state-enforced custom of
segregating the races in public restaurants. C. THREE ADDITIONAL POINTS For purposes of remand, we consider it appropriate to make three
additional points.

															First, the District Court's pretrial opinion seems to suggest
that the exclusive means available to petitioner for demonstrating
that state enforcement of the custom relevant here would be by
showing that the State used its criminal trespass statute for this
purpose. We disagree with the District Court's implicit assumption
that a custom can have the force of law only if it is enforced Page 398 U. S. 172 by a state statute. [ Footnote
41 ] Any such limitation is too restrictive, for a state
official might act to give a custom the force of law in a variety
of ways, at least two examples of which are suggested by the record
here. For one thing, petitioner may be able to show that the police
subjected her to false arrest for vagrancy for the purpose of
harassing and punishing her for attempting to eat with black
people. [ Footnote 42 ]
Alternatively, it might be shown on remand that the Hattiesburg
police would intentionally tolerate violence or threats of violence
directed toward those who violated the practice of segregating the
races at restaurants. [ Footnote
43 ] Page 398 U. S. 173 Second, we think the District Court was wrong in ruling that the
only proof relevant to showing a custom in this case was that
demonstrating a specific practice of not serving white persons who
were in the company of black persons in public restaurants. As
Judge Waterman pointed out in his dissent below, petitioner could
not possibly prove a "long and unvarying" habit of serving only the
black persons in a "mixed" party of whites and blacks for the
simple reason that "it was only after the Civil Rights Act of 1964
became law that Afro-Americans had an opportunity to be served in
Mississippi white' restaurants" at all, 409 F.2d at 128. Like
Judge Waterman, we think the District Court viewed the matter too
narrowly, for under petitioner's complaint the relevant inquiry is
whether, at the time of the episode in question, there was a
longstanding and still prevailing state-enforced custom of
segregating the races in public eating places. Such a custom, of
course, would perforce encompass the particular kind of refusal to
serve challenged in this case. Third, both the District Court and the majority opinion in the
Court of Appeals suggested that petitioner would have to show that
the relevant custom existed throughout the State, and that proof
that it had the force of law in Hattiesburg -- a political
subdivision of the State -- was insufficient. This too we think was
error. In the same way that a law whose source is a town ordinance
can offend the Fourteenth Amendment even though it has less than
state-wide application, so too can a custom with the force of law
in a political subdivision of a State offend the Fourteenth
Amendment even though it lacks state-wide application.

															In summary, if petitioner can show (1) the existence of a
state-enforced custom of segregating the races in public eating
places in Hattiesburg at the time of the incident Page 398 U. S. 174 in question; and (2) that Kress' refusal to serve her was
motivated by that state-enforced custom, she will have made out a
claim under § 1083. [ Footnote
44 ]

															For the foregoing reasons, we think petitioner is entitled to a
new trial on the substantive count of her complaint.

															The judgment of the Court of Appeals is reversed, and the case
is remanded to that court for further proceedings consistent with
this opinion. It is so ordered. MR. JUSTICE MARSHALL took no part in the decision of this
case. Page 398 U. S. 175 [ Footnote 1 ]

															Rev.Stat. § 1979 42 U.S.C. § 1983 provides:

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."

															[ Footnote 2 ]

															The District Court denied petitioner's request to amend her
complaint to include a third count seeking liquidated damages under
§§ 1 and 2 of the Civil Rights Act of 1875, 18 Stat. 335. Although,
in her certiorari petition, petitioner challenged this ruling, and
asked this Court to revive this statute by overruling the holding
in the Civil Rights Cases, 109 U. S.
3 (1883), examination of the record shows that
petitioner never raised any issue concerning the 1875 statute
before the Court of Appeals. Accordingly, the Second Circuit did
not rule on these contentions. Where issues are neither raised
before nor considered by the Court of Appeals, this Court will not
ordinarily consider them. Lawn v. United States, 355 U. S. 339 , 355 U. S.
362 -363, n. 16 (1958); Husty v. United States, 282 U. S. 694 , 282 U. S.
701 -702 (1931); Duignan v. United States, 274 U. S. 195 , 274 U. S. 200 (1927). We decline to do so here.

															[ Footnote 3 ]

															The statute, Miss.Code Ann. § 2046.5 (1956), inter
alia, gives the owners, managers, or employees of business
establishments the right to choose customers by refusing
service.

															[ Footnote 4 ] See, e.g., Monroe v. Pape, 365 U.
S. 167 , 365 U. S. 184 , 365 U. S. 187 (1961); United States v. Price, 383 U.
S. 787 , 383 U. S. 793 , 383 U. S. 794 (1966).

															[ Footnote 5 ]

															The first count of petitioner's complaint alleges that Kress'
refusal to serve petitioner

															"deprived [her] of the privilege of equal enjoyment of a place
of public accommodation by reason of her association with Negroes
and [she] was thereby discriminated against because of race in
violation of the Constitution of the United States and of
Title 42 United States Code, Section 1983."

															(App. 4.) (Emphasis added.) The conspiracy count alleges, inter alia, that Kress and the Hattiesburg police
"conspired together to deprive plaintiff of her right to enjoy
equal treatment and service in a place of public
accommodation."

															The language of the complaint might, if read generously, support
the contention that petitioner was alleging a violation of Title
II, the Public Accommodations provisions, of the 1964 Civil Rights
Act, 78 Stat. 243, 42 U.S.C. § 2000a. It is clear, and respondent
seemingly concedes, that its refusal to serve petitioner was a
violation of § 201 of the 1964 Act, 42 U.S.C. § 2000a. It is very
doubtful, however, that Kress' violation of Miss Adickes' rights
under the Public Accommodations Title could properly serve as a
basis for recovery under § 1983. Congress deliberately provided no
damages remedy in the Public Accommodations Act itself, and §
207(b) provides that the injunction remedy of § 206 was the
"exclusive means of enforcing the rights based on this title."
Moreover, the legislative history makes quite plain that Congress
did not intend that violations of the Public Accommodations Title
be enforced through the damages provisions of § 1983. See 110 Cong.Rec. 9767 (remark of floor manager that the language of
207(b) "is necessary because otherwise it . . . would result . . .
in civil liability for damages under 42 U.S.C. § 1983"); see
also 110 Cong.Rec. 7384, 7405.

															In United States v. Johnson, 390 U.
S. 563 (1968), the Court held that violations of §
203(b) of the Public Accommodations Title could serve as the basis
for criminal prosecution under 18 U.S.C. § 241 (another civil
rights statute) against "outsiders," having no relation to owners
and proprietors of places of public accommodations, notwithstanding
the "exclusive" remedy provision of § 207(b). It is doubtful
whether the Johnson reasoning would allow recovery under § 1983 for
Kress' alleged violation of § 201, and indeed the petitioner does
not otherwise contend. The Court, in Johnson, in holding
that the § 207(b) limitation did not apply to violations of § 203,
stated:

															"[T]he exclusive remedy provision of § 207(b) was inserted only to make clear that the substantive rights to public
accommodation defined in § 201 and § 202 are to be enforced
exclusively by injunction. "

															390 U.S. at 390 U. S.
567 .

															In any event, we think it clear that there can be recovery under
§ 1983 for conduct that violates the Fourteenth Amendment, even
though the same conduct might also violate the Public
Accommodations Title, which itself neither provides a damages
remedy nor can be the basis of a § 1983 action. Section 207(b) of
the Public Accommodations Title expressly provides that nothing in
that title

															"shall preclude any individual . . . from asserting any right
based on any other Federal or State law not inconsistent with this
title . . . or from pursuing any remedy, civil or criminal, which
may be available for the vindication or enforcement of such
right."

															Therefore, quite apart from whether § 207 precludes enforcement
of one's rights under the Public Accommodations Title through a
damages action under 42 U.S.C. § 1983, we think it evident that
enforcement of one's constitutional rights under § 1983 is not
"inconsistent" with the Public Accommodations Act.

															[ Footnote 6 ] E.g., Brown v. Board of Education, 347 U.
S. 483 (1954); cf. Barrows v. Jackson, 346 U. S. 249 (1953).

															[ Footnote 7 ]

															Although Price concerned a criminal prosecution
involving 18 U.S.C. § 242, we have previously held that "under
color of law" means the same thing for § 1983. Monroe v. Pape,
supra, at 365 U. S. 185 (majority opinion), 365 U. S. 212 (opinion of Frankfurter, J.); United States v. Price,
supra, at 383 U. S. 794 n. 7.

															[ Footnote 8 ]

															In his deposition, Powell admitted knowing Hugh Herring, chief
of police of Hattiesburg, and said that he had seen and talked to
him on two occasions in 1964 prior to the incident with Miss
Adickes. (App. 123-126.) When asked how often the arresting
officer, Ralph Hillman, came into the store, Powell stated that he
didn't know precisely, but "Maybe every day." However, Powell said
that, on August 14, he didn't recall seeing any policemen either
inside or outside the store (App. 136), and he denied (1) that he
had called the police, (2) that he had agreed with any public
official to deny Miss Adickes the use of the library, (3) that he
had agreed with any public official to refuse Miss Adickes service
in the Kress store on the day in question, or (4) that he had asked
any public official to have Miss Adickes arrested. App.
154-155.

															[ Footnote 9 ]

															The signal, according to Powell, was a nod of his head. Powell
claimed that, at a meeting about a month earlier with Miss Baggett,
the food counter supervisor, he

															"told her not to serve the white person in the group if I shook
my head no, but, if I didn't give her any sign, to go ahead and
serve anybody."

															App. 135.

															Powell stated that he had prearranged this tacit signal with
Miss Baggett because "there was quite a lot of violence . . . in
Hattiesburg" directed towards whites "with colored people, in what
you call a mixed group." App. 131.

															[ Footnote 10 ]

															Powell described the circumstances of his refusal as
follows:

															"On this particular day, just shortly after 12 o'clock, I
estimate there was 75 to 100 people in the store, and the lunch
counter was pretty -- was pretty well to capacity there, full, and
I was going up towards the front of the store in one of the aisles,
and looking towards the front of the store, and there was a group
of colored girls, and a white woman who came into the north door,
which was next to the lunch counter."

															"And the one thing that really stopped me and called my
attention to this group was the fact that they were dressed alike.
They all had on what looked like a light blue denim skirt. And the
best I can remember is that they were -- they were almost
identical, all of them. And they came into the door, and people
coming in stopped to look, and they went on to the booths. And
there happened to be two empty there. And one group of them and the
white woman sat down in one, and the rest of them sat in the second
group."

															"And almost immediately there -- I mean this, it didn't take
just a few seconds from the time they came into the door to sit
down, but already the people began to mill around the store and
started coming over towards the lunch counter. And by that time, I
was up close to the candy counter, and I had a wide open view
there. And the people had real sour looks on their faces, nobody
was joking, or being corny, or carrying on. They looked like a
frightened mob. They really did. I have seen mobs before. I was in
Korea during the riots in 1954 and 1955. And I know what they are.
And this actually got me."

															"I looked out towards the front, and we have what they call
see-through windows. There is no backs to them. You can look out of
the store right into the street. And the north window, it looks
right into the lunch counter. 25 or 30 people were standing there
looking in, and across the street even, in a jewelry store, people
were standing there, and it looked really bad to me. It looked like
one person could have yelled 'Lets get them,' which has happened
before, and cause this group to turn into a mob. And, so, quickly I
just made up my mind to avoid the riot, and protect the people that
were in the store, and my employees, as far as the people in the
mob who were going to get hurt themselves. I just knew that
something was going to break loose there."

															App. 133-134.

															[ Footnote 11 ]

															The affidavit of the chief of police, who it appears was not
present at the arrest, states in relevant part:

															"Mr. Powell had made no request of me to arrest Miss Sandra
Adickes or any other person; in fact, I did not know Mr. Powell
personally until the day of this statement. [ But cf. Powell's statement at his deposition, n 8, supra. ] Mr. Powell and I had not discussed
the arrest of this person until the day of this statement, and we
had never previously discussed her in any way."

															(App. 107.)

															[ Footnote 12 ]

															The affidavits of Sergeant Boone and Officer Hillman each state,
in identical language:

															"I was contacted on this date by Mr. John H. Williams, Jr., a
representative of Genesco, owners of S. H. Kress and Company, who
requested that I make a statement concerning alleged conspiracy in
connection with the aforesaid arrest."

															"This arrest was made on the public streets of Hattiesburg,
Mississippi, and was an officer's discretion arrest. I had not
consulted with Mr. G. T. Powell, Manager of S. H. Kress and Company
in Hattiesburg, and did not know his name until this date. No one
at the Kress store asked that the arrest be made, and I did not
consult with anyone prior to the arrest."

															(App. 110, 112.)

															[ Footnote 13 ]

															When asked whether she saw any policeman in the store up to the
time of the refusal of service, Miss Adickes answered: "My back was
to the door, but one of my students saw a policeman come in." (App.
75.) She went on to identify the student as "Carolyn." At the
trial, Carolyn Moncure, one of the students who was with
petitioner, testified that, "about five minutes" after the group
had sat down and while they were still waiting for service, she saw
a policeman come in the store. She stated:

															"[H]e came in the store, my face was facing the front of the
store, and he came in the store and he passed, and he stopped right
at the end of our booth, and he stood up and he looked around and
he smiled, and he went to the back of the store, he came right back
and he left out."

															(App. 32.) This testimony was corroborated by that of Dianne
Moncure, Carolyn's sister, who was also part of the group. She
testified that, while the group was waiting for service, a
policeman entered the store, stood "for awhile" looking at the
group, and then "walked to the back of the store." (App. 291.)

															[ Footnote 14 ]

															During discovery, respondent gave to petitioner an unsworn
statement by Miss Irene Sullivan, a check-out girl. In this
statement, Miss Sullivan said that she had seen Patrolman Hillman
come into the store "[s]hortly after 12:00 noon," while
petitioner's group was in the store. She said that he had traded a
"hello greeting" with her, and then walked past her check-out
counter toward the back of the store "out of [her] line of vision."
She went on:

															"A few minutes later, Patrolman Hillman left our store by the
northerly front door just slightly ahead of a group composed of
several Negroes accompanied by a white woman. As Hillman stepped
onto the sidewalk outside our store, the police car pulled across
the street and into an alley that is alongside our store. The
police car stopped and Patrolman Hillman escorted the white woman
away from the Negroes and into the police car."

															(App. 178.)

															[ Footnote 15 ] See, e.g., United States v. Diebold, Inc., 369 U.
S. 654 , 369 U. S. 655 (1962); 6 J. Moore, Federal Practice 56.15[3] (2d ed.1966).

															[ Footnote 16 ]

															In a supplemental brief filed in this Court, respondent lodged a
copy of an unsworn statement by Miss Baggett denying any contact
with the police on the day in question. Apart from the fact that
the statement is unsworn, see Fed.Rule Civ.Proc. 56(e),
the statement itself is not in the record of the proceedings below,
and therefore could not have been considered by the trial court.
Manifestly, it cannot be properly considered by us in the
disposition of the case.

															During discovery, petitioner attempted to depose Miss Baggett.
However, Kress successfully resisted this by convincing the
District Court that Miss Baggett was not a "managing agent," and
"was without power to make managerial decisions."

															[ Footnote 17 ]

															The record does contain an unsworn statement by Miss Freeman in
which she states that she "did not contact the police or ask anyone
else to contact the police to make the arrest which
subsequently occurred." (App. 177) (Emphasis added.) This
statement, being unsworn, does not meet the requirements of
Fed.Rule Civ.Proc. 56(e), and was not relied on by respondent in
moving for summary judgment. Moreover, it does not foreclose the
possibility that Miss Freeman was influenced in her refusal to
serve Miss Adickes by some contact with a policeman present in the
store.

															[ Footnote 18 ]

															The amendment added the following to Rule 56(e):

															"When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If
he does not so respond, summary judgment if appropriate shall be
entered against him."

															[ Footnote 19 ]

															Petitioner's statement at her deposition, see n 13, supra, was, of
course, hearsay; and the statement of Miss Sullivan, see n 14, supra, was
unsworn. And, the rule specifies that reliance on allegation in the
complaint is not sufficient. See Fed.Rule Civ.Proc.
56(e).

															[ Footnote 20 ]

															The purpose of the 1963 amendment was to overturn a line of
cases, primarily in the Third Circuit, that had held that a party
opposing summary judgment could successfully create a dispute as to
a material fact asserted in an affidavit by the moving party simply
by relying on a contrary allegation in a well pleaded complaint. E.g., Frederick Hart & Co. v. Recordgraph Corp., 169
F.2d 580 (1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (1958). See Advisory Committee Note on 1963
Amendment to subdivision (e) of Rule 56.

															[ Footnote 21 ] Ibid. (emphasis added).

															[ Footnote 22 ]

															In First National Bank v. Cities Service, 391 U.
S. 253 (1968), the petitioner claimed that the lower
courts had misapplied Rule 56(e) to shift the burden imposed by
Rule 56(c). In rejecting this contention, we said:

															"Essentially all that the lower courts held in this case was
that Rule 56(e) placed upon [petitioner] the burden of producing
evidence of the conspiracy he alleged only after respondent . .
. conclusively showed that the facts upon which he relied to
support his allegation were not susceptible of the interpretation
which he sought to give them. " Id. at 391 U. S. 289 (Emphasis added.) In this case, on the other hand, we hold that
respondent failed to show conclusively that a fact alleged by
petitioner was "not susceptible" of an interpretation that might
give rise to an inference of conspiracy.

															[ Footnote 23 ]

															Petitioner also appears to argue that, quite apart from custom,
she was refused service under color of the state trespass statute, supra, n 2. It should
be noted, however, that this trespass statute, by its terms, does
not compel segregation of the races. Although such a trespass
statute might well have invalid applications if used to compel
segregation of the races through state trespass convictions, see Robinson v. Florida, 378 U. S. 153 (1964), the statute here was not so used in this case. Miss
Adickes, although refused service, was not asked to leave the
store, and was not arrested for a trespass arising from a refusal
to leave pursuant to this statute. The majority below, because it
thought the code provision merely restated the common law "allowing
[restauranteurs] to serve whomever they wished," 409 F.2d at 126,
concluded that a private discrimination on the basis of race
pursuant to this provision would not fulfill the "state action"
requirement necessary to show a violation of the Fourteenth
Amendment. Judge Waterman, in dissent, argued that the statute
changed the common law, and operated to encourage racial
discrimination.

															Because a factual predicate for statutory relief under § 1983
has not yet been established below, we think it inappropriate in
the present posture of this case to decide the constitutional issue
of whether or not proof that a private person knowingly
discriminated on the basis of race pursuant to a state trespass
statute like the one involved here would make out a violation of
the Fourteenth Amendment. Whatever else may also be necessary to
show that a person has acted "under color of [a] statute" for
purposes of § 1983, see n 44, infra we think it essential that he act
with the knowledge of and pursuant to that statute. The courts
below have made no factual determinations concerning whether or not
the Kress refusal to serve Miss Adickes was the result of action by
a Kress employee who had knowledge of the trespass statute, and who
was acting pursuant to it.

															[ Footnote 24 ]

															Cong.Globe, 42d Cong., 1st Sess., App. 68 (statement by Rep.
Shellabarger).

															[ Footnote 25 ]

															392 U.S. at 392 U. S.
424 -426 (majority opinion); id. at 392 U. S.
454 -473 (HARLAN, J., dissenting).

															[ Footnote 26 ] Id. at 392 U. S. 426 .
In arguing that § 1 of the 1866 Act (the predecessor of what is now
42 U.S.C. § 1982) was meant to cover private, as well as
governmental, interference with certain rights, the Court in Jones said:

															"Indeed, if § 1 had been intended to grant nothing more than an
immunity from governmental interference, then much of § 2
would have made no sense at all. For that section, which provided
fines and prison terms for certain individuals who deprived others
of rights 'secured or protected' by § 1, was carefully drafted to
exempt private violations of § 1 from the criminal sanctions it
imposed. . . . Hence, the structure of the 1866 Act, as well as its
language, points to the conclusion . . . [that] only those
deprivations perpetrated 'under color of law' were to be criminally
punishable under § 2." Id. 392 U. S.
424 -426. The Court in Jones cited the
legislative history of § 2 to support its conclusion that the
section "was carefully drafted to exempt private violations" and
punish only " governmental interference. " Id. at 392 U. S.
424 -425 and n. 33.

															[ Footnote 27 ]

															Cong.Globe, 42d Cong., 1st Sess., App. 68.

															[ Footnote 28 ] Id. at 568 (emphasis added), quoted in Monroe v.
Pape, supra, at 365 U. S. 171 ; see also Cong.Globe, supra, at App. 79 (Rep. A.
Perry) (§ 1 understood to remedy injuries done "under color of
State authority").

															[ Footnote 29 ] Compare id. at App. 68 with 17 Stat. 13. See id. at 568; App. 153-154 (Rep. Garfield).

															[ Footnote 30 ]

															Throughout the debates, for example, "moderates" who expressed
no opposition to § 1 objected to other proposals that they saw as
allowing the Federal Government to take over the State's
traditional role of punishing unlawful conduct of private parties. See, e.g., id. at 578-579 (Sen. Trumbull, the author of
the 1866 Act); 514 (Rep. Poland); App. 53 (Rep. Garfield).

															[ Footnote 31 ]

															Section 2 of the Ku Klux Klan Act is as amended, 42 U.S.C. §
1985(3). In Collins v. Hardyman, 341 U.
S. 651 (1951), in order to avoid deciding whether there
was congressional power to allow a civil remedy for purely private
conspiracies, the Court in effect interpreted § 1985(3) to require
action under color of law even though this element is not found in
the express terms of the statute. In a dissent joined by MR.
JUSTICE BLACK and MR. JUSTICE DOUGLAS, Mr. Justice Burton said of §
1985(3):

															"The language of the statute refutes the suggestion that action
under color of state law is a necessary ingredient of the cause of
action which it recognizes. . . . When Congress, at this period,
did intend to limit comparable civil rights legislation to action
under color of state law, it said so in unmistakable terms,"

															citing and quoting what is now § 1983. Id. at 341 U. S.
663 -664. Without intimating any view concerning the
correctness of the Court's interpretation of § 1985(3) in Collins, we agree with the dissenters in that case that
Congress, in enacting what is now § 1983, "said . . . in
unmistakable terms" that action under color of law is
necessary.

															[ Footnote 32 ]

															Cong.Globe, supra, at App. 216.

															[ Footnote 33 ] Id. at App. 217; see also id. at App. 268
(Rep. Sloss).

															[ Footnote 34 ] Id. at App. 218.

															[ Footnote 35 ] E.g., Pierson v. Ray, 386 U. S. 547 , 386 U. S. 554 (1967); Monroe v. Pape, supra; Smith v. Allwright, 321 U. S. 649 (1944).

															[ Footnote 36 ] United States v. Price, 383 U.
S. 787 , 383 U. S. 794 n. 7 (1966); Williams v. United States, supra; Screws v. United
States, supra, at 325 U. S. 109 ; United States v. Classic, supra, at 313 U. S.
326 -329. Section 242 of 18 U.S.C. is the direct
descendant of § 2 of the 1866 Civil Rights Act. See n 26, supra. [ Footnote 37 ]

															In Gannon v. Action, 303 F.
Supp. 1240 (D.C.E.D. Mo.1969), the opinion, on the one hand,
said that "Section 1983 . . . requires that the action for which
redress is sought be under color' of state law." It then went
on to decide that the defendants under color of a "custom of
[ sic] usage of the State of Missouri . . . [of] undisturbed
worship by its citizens according to the dictates of their
consciences" entered a St. Louis cathedral, disrupted a service,
and thus

															"deprived plaintiffs of their constitutional rights of freedom
of assembly, speech, and worship, and to use and enjoy their
property, all in violation of section 1983," id. at 1245. See 23 Vand.L.Rev. 413, 419-420
(1970).

															[ Footnote 38 ] Williams v. Howard Johnson's, Inc., 323 F.2d 102
(C.A.4th Cir.1963); Williams v. Hot Shoppes, Inc., 110
U.S.App.D.C. 358, 363, 293 F.2d 835 840 (1961) ("As to the argument
based upon the custom or usage' language of the statute we join
with the unanimous decision of the Fourth Circuit in. support of
the proposition that -- `The customs of the people of a state do
not constitute state action within the prohibition of the
Fourteenth Amendment,'" quoting from Williams v. Howard
Johnson's Restaurant, 268 F.2d 845, 848 (C.A.4th Cir.1959)),
and 110 U.S.App.D.C. at 367-368, 293 F.2d at 844-845 (Bazelon, J.,
dissenting); see Slack v. Atlantic White Tower
System, 181 F.
Supp. 124 , 127-128, 130 (D.C. Md.), aff'd, 284 F.2d
746 (C.A.4th Cir.1960). It should also be noted that the dissenting opinion below
thought a "custom or usage" had to have the force of law. 409 F.2d
at 128.

															[ Footnote 39 ]

															Cong.Globe, 42d Cong., 1st Sess., App. 153. MR. JUSTICE BRENNAN, post at 398 U. S. 219 , 398 U. S. 230 ,
infers from this statement that Rep. Garfield thought § 1983 was
meant to provide a remedy in circumstances where the State had
failed to take affirmative action to prevent widespread private
discrimination. Such a reading of the statement is too broad,
however. All Rep. Garfield said was that a State, through the
practices of its officials, could deny a person equal protection of
the laws by the "systematic maladministration" of, or "a neglect or
refusal to enforce" written laws that were "just and equal on their
face." Official inaction in the sense of neglecting to enforce laws
already on the books is quite different from the inaction implicit
in the failure to enact corrective legislation.

															[ Footnote 40 ] E.g., Peterson v. City of Greenville, 373 U.
S. 244 (1963); Robinson v. Florida, 378 U. S. 153 (1964); see Lombard v. Louisiana, 373 U.
S. 267 (1963); Shuttlesworth v. Birmingham, 373 U. S. 262 (1963).

															[ Footnote 41 ]

															Because it thought petitioner had failed to prove the existence
of a custom, the majority of the Second Circuit explicitly refused
to decide whether petitioner had to prove "the custom or usage was
enforced by a state statute," 409 F.2d at 125.

															[ Footnote 42 ]

															Together with some other civil rights workers also being
prosecuted on vagrancy charges, Miss Adickes, in a separate action,
removed the state vagrancy prosecution against her to a federal
court on the ground that the arrest and prosecution were in
retaliation for her attempt to exercise her rights under the Public
Accommodations Title of the 1964 Civil Rights Act. The District
Court remanded the charge to the state courts, but the Fifth
Circuit reversed, finding that

															"[t]he utter baselessness of any conceivable contention that the
vagrancy statutes prohibited any conduct in which these persons
were engaged merely buttresses the undisputed evidence before the
trial court when the order of remand was entered that these
protected acts [ i.e., 'attempts to enjoy equal public
accommodations in the Hattiesburg City Library, and a restaurant in
the nationally known Kress store'] constituted the conduct for
which they were then and there being arrested." Achtenberg v. Mississippi, 393 F.2d 468, 474 (C.A. 5th
Cir.1968). Although one judge dissented on the ground that Miss
Adickes' case was not properly removable under Georgia v.
Rachel, 384 U. S. 780 (1966), he too thought that the "vagrancy charges against Miss
Adickes were shown to be baseless and an unsophisticated
subterfuge," id. at 475.

															[ Footnote 43 ] See n 10, supra. [ Footnote 44 ]

															Any notion that a private person is necessarily immune
from liability under § 1983 because of the " under color
of " requirement of the statute was put to rest by our holding
in United States v. Price, supra, see n 7, supra. There, in the context of a
conspiracy, the Court said:

															"To act 'under color' of law does not require that the accused
be an officer of the State. It is enough that he is a willful
participant in joint activity with the State . . ." id. at 383 U. S. 794 .
Because the core of congressional concern in enacting § 1983 was to
provide a remedy for violations of the Equal Protection Clause
arising from racial discrimination, we think that a private person
who discriminates on the basis of race with the knowledge of and
pursuant to a state-enforced custom requiring such discrimination
is a "participant in joint activity with the State," and is acting
"under color of" that custom for purposes of § 1983.

															We intimate no views concerning the relief that might be
appropriate if a violation is shown. See Williams v. Hot
Shoppes, Inc., 110 U.S.App.D.C. 358, 370-371 293 F.2d 835,
847-848 (1961) (Bazelon, J., dissenting). The parties have not
briefed these remedial issues, and if a violation is proved they
are best explored in the first instance below in light of the new
record that will be developed on remand. Nor do we mean to
determine at this juncture whether there are any defenses available
to defendants in § 1983 actions like the one at hand. Cf.
Pierson v. Ray, 386 U. S. 547 (1967).

															MR. JUSTICE BLACK, concurring in the judgment.

															The petitioner, Sandra Adickes, brought suit against the
respondent, S. H. Kress & Co., to recover damages for alleged
violations of 42 U.S.C. § 1983. In one count of her complaint, she
alleged that a police officer of the City of Hattiesburg,
Mississippi, had conspired with employees of Kress to deprive her
of rights secured by the Constitution, and that this joint action
of a state official and private individuals was sufficient to
constitute a violation of § 1983. She further alleged in another
count that Kress' refusal to serve her while she was in the company
of Negroes was action "under color of" a custom of refusing to
serve Negroes and whites together in Mississippi, and that this
action was a violation of § 1983. The trial judge granted a motion
for summary judgment in favor of Kress on the conspiracy allegation
and, after full presentation of evidence by the petitioner, granted
a motion for a directed verdict in favor of the respondent on the
custom allegation. Both decisions rested on conclusions that there
were no issues of fact supported by sufficient evidence to require
a jury trial. I think the trial court and the Court of Appeals
which affirmed were wrong in allowing summary judgment on the
conspiracy allegation. And -- assuming for present purposes that
the trial court's statutory interpretation concerning "custom or
usage" was correct -- it was also error to direct a verdict on that
count. In my judgment, on this record, petitioner should have been
permitted to have the jury consider both her claims.

															Summary judgments may be granted only when

															"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact. . . ."

															Fed.Rule Civ.Proc. 56(c). Petitioner in this case alleged that
she went into Kress in the company of Negroes Page 398 U. S. 176 and that the waitress refused to serve her, stating "[w]e have
to serve the colored, but we are not going to serve the whites that
come in with them." Petitioner then alleged that she left the store
with her friends and as soon as she stepped outside a policeman
arrested her and charged her with vagrancy. On the basis of these
facts she argued that there was a conspiracy between the store and
the officer to deprive her of federally protected rights. The store
filed affidavits denying any such conspiracy and the trial court
granted the motion for summary judgment, concluding that petitioner
had not alleged any basic facts sufficient to support a finding of
conspiracy.

															The existence or nonexistence of a conspiracy is essentially a
factual issue that the jury, not the trial judge, should decide. In
this case, petitioner may have had to prove her case by impeaching
the store's witnesses and appealing to the jury to disbelieve all
that they said was true in the affidavits. The right to confront,
cross-examine and impeach adverse witnesses is one of the most
fundamental rights sought to be preserved by the Seventh Amendment
provision for jury trials in civil cases. The advantages of trial
before a live jury with live witnesses, and all the possibilities
of considering the human factors, should not be eliminated by
substituting trial by affidavit and the sterile bareness of summary
judgment.

															"It is only when the witnesses are present and subject to
cross-examination that their credibility and the weight to be given
their testimony can be appraised. Trial by affidavit is no
substitute for trial by jury which so long has been the hallmark of
'even handed justice.'" Poller v. Columbia Broadcasting, 368 U.
S. 464 , 368 U. S. 473 (1962).

															Second, it was error for the trial judge to direct a verdict in
favor of the respondent on the "custom" Page 398 U. S. 177 count. The trial judge surveyed the evidence and concluded that
it was insufficient to prove the existence of a custom of not
serving white people in the company of Negroes. He thereupon took
the case away from the jury, directing a verdict for the
respondent. The Court of Appeals affirmed this conclusion. In my
opinion this was clear error.

															Petitioner testified at trial as follows:

															"Q. Did you have occasion to know of specific instances where
white persons in the company of Negroes were discriminated against?
A. Yes."

															"Q. How many such instances can you recall? A. I can think of
about three at the moment."

															"Q. Will you describe the three instances to us? A. I know that
people were turned away from a white church, an integrated group
was turned away from a white church in Hattiesburg. I was not
present, but this was explained to me. I saw a rabbi being beaten
because he was in the company of Negroes."

															"Q. This was a white rabbi? A. Yes. And people were turned away
from a drug store in Hattiesburg, an integrated group. I don't
remember the name of the drug store."

															"Q. On the basis of what you studied and on the basis of what
you observed, and on the basis of your conversations with other
persons there, did you come to a conclusion with regard to the
custom and usage with regard to the white community towards serving
persons, white persons, in the company of Negroes? A. Yes."

															"Q. What was that conclusion? A. The conclusion was that white
persons it was a custom and usage not to serve white persons in the
company of Negroes. Page 398 U. S. 178 This evidence, although weakened by the cross-examination, was
sufficient, I think, to require the court to let the case go to the
jury and secure petitioner's constitutionally guaranteed right to a
trial by that jury. See Galloway v. United States, 319 U. S.
372 , 319 U. S. 396 (1943) (BLACK,
J., dissenting)."

															I do not find it necessary at this time to pass on the validity
of the statutory provision concerning "custom or usage" or on the
trial court's views, concurred in by the Court of Appeals, on the
proper interpretation of that term. Assuming that the trial court's
interpretation was correct and that the provision as so interpreted
is valid, there was enough evidence in this record to warrant
submitting the entire question of custom or usage to the jury in
accordance with instructions framed to reflect those views.

															For the foregoing reasons, I concur in the judgment reversing
the Court of Appeals and remanding for a new trial on both
counts.

															MR. JUSTICE DOUGLAS, dissenting in part. I The statutory words "under color of any statute, ordinance,
regulation, custom, or usage, of any State," 42 U.S.C. § 1983, are
seriously emasculated by today's ruling. Custom, it is said, must
have "the force of law"; and "law," as I read the opinion, is used
in the Hamiltonian sense. [ Footnote
2/1 ] Page 398 U. S. 179 The Court requires state involvement in the enforcement of a
"custom" before that "custom" can be actionable under 42 U.S.C. §
1983. That means, according to the Court, that "custom" for the
purposes of § 1983 "must have the force of law by virtue of the
persistent practices of state officials." That construction of §
1983 is, to borrow a phrase from the first Mr. Justice Harlan, "too
narrow and artificial." Civil Rights Cases, 109 U. S.
3 , 109 U. S. 26 (dissenting opinion).

															Section 1983, by its terms, protects all "rights" that are
"secured by the Constitution and laws" of the United States. There
is no more basic "right" than the exemption from discrimination on
account of race -- an exemption that stems not only from the Equal
Protection Clause of the Fourteenth Amendment, but also from the
Thirteenth Amendment and from a myriad of "laws" enacted by
Congress. And, so far as § 1983 is concerned, it is sufficient that
the deprivation of that right be "under color" of "any . . . custom
. . . of any State." The "custom," to be actionable, must obviously
reflect more than the prejudices of a few; it must reflect the
dominant communal sentiment. II The "custom . . . of any State" can, of course, include the
predominant attitude backed by some direct or indirect sanctions
inscribed in law books. Thus, in Garner v. Louisiana, 368 U. S. 157 ,
another restaurant case involving racial discrimination, there was
no state law or municipal ordinance that, in terms, required
segregation of the races in restaurants. But segregation was basic
to the structure of Louisiana as a community, as revealed by a
mosaic of laws. Id. at 368 U. S.
179 -181 (concurring opinion).

															The same is true of Mississippi in the present case.

															In 1964, at the time of the discrimination perpetrated in this
case, there were numerous Mississippi laws that were designed to
continue a regime of segregation of Page 398 U. S. 180 the races. The state legislature had passed a resolution
condemning this Court's Brown v. Board of Education decisions, 347 U. S. 347 U.S.
483, 349 U. S. 349 U.S.
294, as "unconstitutional" infringements on States' rights.
Miss.Laws 1956, c. 466, Senate Concurrent Resolution No. 125. Part
of the Mississippi program to perpetuate the segregated way of life
was the State Sovereignty Commission, Miss.Code Ann. § 9028-31 et seq. (1956), of which the Governor was chairman and
which was charged with the duty

															"to do and perform any and all acts and things deemed necessary
and proper to protect the sovereignty of the State of Mississippi .
. . from encroachment thereon by the Federal Government. . . ." Id. § 9028-35. Miss.Code Ann. § 4065.3 (1956)
required

															"the entire executive branch of the government of the State of
Mississippi . . . to prohibit by any lawful, peaceful, and
constitutional means, the causing of a mixing or integration of the
white and Negro races in public schools, public parks, public
waiting rooms, public places of amusement, recreation or assembly
in this state, by any branch of the federal government. . . ."

															Every word and deed of a state officer, agent, or employee that
was connected with maintaining segregated schools in Mississippi
was deemed to be "the sovereign act . . . of the sovereign State of
Mississippi." Id. § 4065.4 (Supp. 1968). It was unlawful
for a white student to attend any school of high school or lower
level that was also attended by Negro students. Id. §
6220.5. Separate junior college districts were established for
blacks and whites. Id. § 6475-14 (1952). The Ellisville
State School for the feeble-minded was required to provide for
separate maintenance of blacks and whites. Id. § 6766. The
State Insane Hospital was required to keep the two races separate, id. § 6883, as was the South Mississippi Charity Hospital. Id. § 6927. Separate entrances were required to be
maintained at state hospitals Page 398 U. S. 181 for black and white patients. Id. § 6973. It was the
responsibility of those in authority to furnish a sufficient number
of Negro nurses to attend Negro patients, but the Negro nurses were
to be under the supervision of white supervisors. Id. §
6974. It was unlawful for Negro and white convicts to be confined
or worked together. Id. § 7913 (1956). County sheriffs
were required to maintain segregated rooms in the jails. Id. § 4259. It was unlawful for taxicab drivers to carry
black and white passengers together. Id. § 3499. Railroad
depots in cities of 3,000 or more inhabitants were required to have
separate "closets" for blacks and whites. Id. § 7848. And
it was a crime to overthrow the segregation laws of the State. Id. § 2056(7).

															The situation was thus similar to that which existed in Garner. Although there was no law that, in terms required
segregation of the races in restaurants, it was plain that the
discrimination was perpetrated pursuant to a deeply entrenched
custom in Louisiana that was "at least as powerful as any law." Garner v. Louisiana, supra, at 368 U. S. 181 (concurring opinion); cf. Robinson v. Florida, 378 U. S. 153 , 378 U. S.
156 . III The "custom . . . of any State," however, can be much more
pervasive. It includes the unwritten commitment, stronger than
ordinances, statutes, and regulation, by which men live and arrange
their lives. Bronislaw Malinowski, the famed anthropologist, in
speaking of the "cake of custom" of a Melanesian community
"safeguarding life, property and personality" said: [ Footnote 2/2 ]

															"There is no religious sanction to these rules, no fear,
superstitious or rational, enforces them, no Page 398 U. S. 182 tribal punishment visits their breach, nor even the stigma of
public opinion or moral blame. The forces which make these rules
binding we shall lay bare and find them not simple, but clearly
definable, not to be described by one word or one concept, but very
real nonetheless. The binding forces of Melanesian civil law are to
be found in the concatenation of the obligations, in the fact that
they are arranged into chains of mutual services, a give and take
extending over long periods of time and covering wide aspects of
interest and activity. To this there is added the conspicuous and
ceremonial manner in which most of the legal obligations have to be
discharged. This binds people by an appeal to their vanity and
self-regard, to their love of self-enhancement by display. Thus,
the binding force of these rules is due to the natural mental trend
of self-interest, ambition and vanity, set into play by a special
social mechanism into which the obligatory actions are framed."

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

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

															The philosophy of the Black Codes reached much further than the
sanctions actually prescribed in them. Federal judges, who entered
the early school desegregation Page 398 U. S. 183 decrees, often felt the ostracism of the community, though the
local "law" never even purported to place penalties on judges for
doing such acts. Forty years ago in Washington, D.C. a black who
was found after the sun set in the northwest section of the
District on or above Chevy Chase Circle was arrested, though his
only "crime" was waiting for a bus to take him home after caddying
at a plush golf course in the environs. There was no "law"
sanctioning such an arrest. It was done "under color" of a "custom"
of the Nation's Capital.

															Harry Golden [ Footnote 2/3 ]
recently wrote:

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

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

															Title 42 U.S.C. § 1983 was derived from § 1 of the "Ku Klux Klan
Act" of 1871, 17 Stat. 13. The "under color of" provisions of § 1
of the 1871 Act, in turn, were derived from § 2 of the Civil Rights
Act of 1866, 14 Stat. 27. The meaning of "under color of . . .
custom" in the context of the 1866 Act is therefore relevant to the
meaning of that phrase as it is used in § 1983, for, as the Court
states, the "under color of" provisions mean the same thing for §
1983 as they do for 18 U.S.C. § 242, the direct descendant of § 2
of the 1866 Act. [ Footnote 2/4 ] Ante at 398 U. S. 152 n. 7. Page 398 U. S. 184 A "custom" of the community or State was one of the targets of
the Civil Rights Act of 1866. Section 1, which we upheld in Jones v. Alfred H. Mayer Co., 392 U.
S. 409 , provided a civil remedy for specified private
acts of racial discrimination. Section 2 of that Act provided
criminal sanctions for acts done "under color of any" custom of a
State. A Congress that, in 1866, was not bent only on "the
nullification of racist laws," id. at 392 U. S. 429 ,
was not restricting itself strictly to state action; it was out to
ban racial discrimination partly as respects private actions,
partly under state law in the Hamiltonian sense, and partly under
the color of "custom."

															Of course, § 2 of the 1866 Act did not cover purely private
actions as did § 1 of the Act, and that was the point of our
discussion of § 2 in Jones v. Alfred H. Mayer Co. But the
Court does not come to grips with the fact that actions taken
"under color of any . . . custom" were covered by § 2 of the 1866
Act quite apart from Page 398 U. S. 185 actions taken under "color of any statute, ordinance, [or]
regulation" -- in other words, quite apart from actions taken under
"color of law" in the traditional sense. Instead, the Court seems
to divide all actions into two groups -- those constituting "state
action" and those constituting purely "private action" -- with
coverage of § 2 limited to the former. While § 2 did not reach
"private violations," it did reach discrimination based on "color
of custom," which is far beyond the realm of a mere private
predilection or prejudice. And, despite the Court's suggestion to
the contrary, the use of the term "under color of law" by the Court
in Jones v. Alfred H. Mayer Co. was merely a shorthand
reference for all the "under color of" provisions in § 2, and had
no relevance to the specific problem of defining the meaning of
"under color of . . . custom." [ Footnote 2/5 ]

															Section 2, like § 1, involved in Jones v. Alfred H. Mayer
Co., was bottomed on the Thirteenth Amendment, for it was
enacted before the Fourteenth Amendment was adopted. As we stated
in Jones v. Alfred H. Mayer Co.: "Surely Congress has the power under the Thirteenth Amendment
rationally to determine what are the badges and the incidents of
slavery, and the Page 398 U. S. 186 authority to translate that determination into effective
legislation." Id. at 392 U. S.
440 .

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

															If the wrong done to the individual was under "color" of
"custom" alone, the ingredients of the cause of action were
satisfied. [ Footnote 2/6 ] The
adoption of the Fourteenth Amendment Page 398 U. S. 187 expanded the substantive rights covered by § 1 of the 1871 Act vis-a-vis those covered by § 2 of the 1866 Act. But that
expanded coverage did not make "state action" a necessary
ingredient in all of the remedial provisions of § 1 of the 1871
Act. Neither all of § 1 of the 1871 Act nor all of its successor, §
1983, was intended to be conditioned by the need for "state"
complicity.

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

															To repeat, § 1983 was "one of the means whereby Congress
exercised the power vested in it by § 5 of the Fourteenth Amendment
to enforce the provisions of that Amendment." Monroe v. Pape,
supra, at 365 U. S. 171 .
Yet powers exercised by Congress may stem from more than one
constitutional source. McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S. 421 ; Veazie Bank v.
Fenno , 8 Wall. 533, 75 U. S.
548 -549; Edye v. Robertson, 112 U.
S. 580 , 112 U. S.
595 -596; United States v. Gettysburg Electric R.
Co., 160 U. S. 668 , 160 U. S. 683 .
Moreover, § 1983 protects "any rights" that are "secured" by "the
Constitution and laws" Page 398 U. S. 188 of the United States, which makes unmistakably clear that § 1983
does not cover, reach, protect, or secure only Fourteenth Amendment
rights. The Thirteenth Amendment and its enabling legislation cover
a wide range of "rights" designed to rid us of all the badges of
slavery. And, as I have said, the phrase "under color of any . . .
custom" derives from § 2 of the 1866 Act which rested on the
Thirteenth Amendment whose enforcement does not turn on "state
action." [ Footnote 2/7 ] The failure
of the Court to come to face with those realities leads to the
regressive decision announced today.

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

															[ Footnote 2/1 ]

															The Federalist, No. 15:

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

															[ Footnote 2/2 ]

															B. Malinowski, Crime and Custom in Savage Society 66-67
(1932).

															[ Footnote 2/3 ]

															Book Guide, Boston Sunday Herald Traveler, February 22, 1970, p.
2.

															[ Footnote 2/4 ]

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

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

															(Emphasis added.)

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

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."

															(Emphasis added.)

															[ Footnote 2/5 ]

															The meaning of "under color of . . . custom" was not before the
Court in Jones v. Alfred H. Mayer Co., and language from
the Court's opinion in that case, taken out of context, can be
highly misleading. For example, the language quoted in n. 26 of the
Court's opinion in this case distinguished "private violations"
covered by § 1 of the 1866 Act from "deprivations perpetrated under color of law'" covered by § 2 of the Act. The Court here
interprets that use of the phrase "under color of law" to exclude
actions taken "under color of . . . custom" sans state
action. A more realistic interpretation of the quoted language,
however, is that "under color of law" was merely being used by the
Court as a shorthand phrase for "under color of any statute,
ordinance, regulation, custom, or usage, of any State," and that
the Court, without in any way addressing the question of the
meaning of "custom," was merely using the phrase to distinguish
purely private violations. [ Footnote 2/6 ]

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

															[ Footnote 2/7 ]

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

															MR. JUSTICE BRENNAN, concurring in part and dissenting in
part.

															Petitioner contends that, in 1964, respondent, while acting
"under color of . . . statute" or "under color of . . . custom, or
usage" of the State of Mississippi, subjected her to the
deprivation of her right under the Equal Protection Clause of the
Fourteenth Amendment not to be denied service in respondent's
restaurant due to racial discrimination in which the State of
Mississippi was involved, and that, therefore, respondent is liable
to her in damages under 42 U.S.C. § 1983. To recover under 1983,
petitioner must prove two separate and independent elements: first,
that respondent subjected her to the Page 398 U. S. 189 deprivation of a right "secured by the Constitution and laws";
and, second, that, while doing so, respondent acted under color of
a statute, ordinance, regulation, custom, or usage of the State of
Mississippi.

															Whether a person suing under § 1983 must show state action in
the first element -- the deprivation of a right "secured by the
Constitution and laws" -- depends on the nature of the particular
right asserted. For example, a person may be deprived of a right
secured by the Constitution and 42 U.S.C. § 1982 by a private
person acting completely independently of state government. See
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968). On the other hand, the constitutional
right to equal protection of the laws, unelaborated by any statute,
can be violated only by action involving a State. The discussion in United States v. Reese, 92 U. S. 214 , 92 U. S.
249 -252 (1876) (Hunt, J., dissenting), of various
constitutional uses of the word "State" suggests that, as an
original matter, "State" in the Equal Protection Clause might have
been interpreted in any of several ways. Moreover, some have
thought that historical evidence points to an interpretation
covering some categories of state inaction in the face of wholly
private conduct, see, e.g., Bell v. Maryland, 378 U.
S. 226 , 378 U. S.
286 -316 (1964) (Goldberg, J., concurring); R. Harris,
The Quest for Equality 24-56 (1960); J. tenBroek, Equal Under Law
201-239 (1965). However, our cases have held that the Equal
Protection Clause applies only to action by state government or
officials and those significantly involved with them. Shelley
v. Kraemer, 334 U. S. 1 , 334 U. S. 13 (1948); Burton v. Wilmington Parking Authority, 365 U. S. 715 , 365 U. S.
721 -722 (1961). Whether and when a person suing under
1983 must show state action in the second element -- action under
color of a statute, ordinance, regulation, custom, or Page 398 U. S. 190 usage of a State -- depends on an analysis of the text,
legislative history, and policy of § 1983. See 398 U. S. infra. These two inquiries are wholly different, though,
in particular cases, a showing of state action under one element
may suffice under the other.

															In the present case, petitioner alleged as the first element
under § 1983 a deprivation of her right to equal protection.
Therefore, under our cases, she must show state action. She asserts
that there was state action in two different respects. First, she
contends that there was a conspiracy between respondent and local
police to discriminate against her in restaurant service because
she, a white person, sought service while accompanied by Negro
friends. The Court treats this aspect of her claim in 398 U.
S. which I join. [ Footnote
3/1 ] Petitioner contends, alternatively, that respondent's
discrimination was authorized and encouraged by Mississippi
statutes. To that contention I now turn. I The state action doctrine reflects the profound judgment that
denials of equal treatment, and particularly denials on account of
race or color, are singularly grave when government has or shares
responsibility for them. Government is the social organ to which
all in our society look for the promotion of liberty, justice, fair
and equal treatment, and the setting of worthy norms and goals for
social conduct. Therefore something is uniquely amiss in a society
where the government, the authoritative oracle of community values,
involves itself in racial Page 398 U. S. 191 discrimination. Accordingly, in the cases that have come before
us this Court has condemned significant state involvement in racial
discrimination, however subtle and indirect it may have been and
whatever form it may have taken. See, e.g., Burton v.
Wilmington Parking Authority, supra; Evans v. Newton, 382 U. S. 296 (1966); Hunter v. Erickson, 393 U.
S. 385 (1969). These decisions represent vigilant
fidelity to the constitutional principle that no State shall in any
significant way lend its authority to the sordid business of racial
discrimination.

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

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

															"Consequently these convictions cannot stand, even assuming as
respondent contends, that the manager would have acted as he did
independently of the existence of the ordinance."

															373 U.S. at 373 U. S.
248 . Page 398 U. S. 192 Although the case involved trespass convictions, the Court did
not rely on the State's enforcement of its neutral trespass laws in
analyzing the elements of state action present. Nor did it cite Shelley v. Kraemer, supra, the logical starting point for
an analysis in terms of judicial enforcement. The denial of equal
protection occurred when the petitioners were denied service in the
restaurant. That denial of equal protection tainted the subsequent
convictions. And, as we noted in Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 380 (1967), no "proof [was] required that the restaurant owner had
actually been influenced by the state statute. . . ." Thus, Peterson establishes the proposition that, where a State
commands a class of persons to discriminate on the basis of race,
discrimination by a private person within that class is state
action, regardless of whether he was motivated by the command. The
Court's intimation in the present case that private discrimination
might be state action only where the private person acted under
compulsion imposed by the State echoes MR. JUSTICE HARLAN's
argument in Peterson that private discrimination is state
action only where the State motivates the private person to
discriminate. See 373 U.S. at 373 U. S.
251 -253. That argument was squarely rejected by the
Court in Peterson, and I see no reason to resurrect it
now.

															The rationale of Peterson was extended in Lombard
v. Louisiana, 373 U. S. 267 (1963). There, the petitioners were convicted of trespass for
refusing to leave a restaurant after being denied service. Prior to
the arrests, the mayor and superintendent of police of New Orleans
had publicly stated that sit-in demonstrations were undesirable,
and that relevant trespass laws would be fully enforced. Although
these statements, unlike the ordinance in Peterson, were
not discriminatory on their face, the Court interpreted them Page 398 U. S. 193 as evidencing state support for the system of racial segregation
prevalent in the private institutions against which the
petitioners' sit-in was directed. Moreover, the statements, unlike
the ordinance in Peterson, did not command restaurateurs
to discriminate. A restaurateur in New Orleans, unlike one in
Greenville, could integrate his services without violating any law.
Although there was evidence that the restaurateur's actions were
influenced by the official statements, the Court did not rely on
this factor. The Court held on the basis of the statements alone
that the degree of state involvement in the private discriminatory
denial of service to the petitioners was sufficient to make that
denial state action violative of the Fourteenth Amendment. As in Peterson, the Court's analysis of state action did not
turn on the actual enforcement of the State's criminal law. Lombard, therefore, advances at least two propositions.
First, an authoritative expression of state policy that is
nondiscriminatory on its face may be found to be discriminatory
when considered against the factual background of its promulgation. Cf. Guinn v. United States, 238 U.
S. 347 , 238 U. S.
364 -365 (1915); Gomillion v. Lightfoot, 364 U. S. 339 (1960). Second, where a state policy enforces privately chosen
racial discrimination in places of public accommodation, it renders
such private discrimination unconstitutional state action,
regardless of whether the private discriminatory was motivated or
influenced by it.

															The principles of Peterson and Lombard were
extended further in Robinson v. Florida, 378 U.
S. 153 (1964). That case also involved trespass
convictions arising out of a sit-in at a segregated restaurant. At
the time, a Florida regulation required restaurants to maintain
separate lavatory and toilet facilities for each race as well as
each sex. However, the regulation did not require segregation of a
restaurant itself; nor did the Page 398 U. S. 194 convictions of the demonstrators result from anything they did
with respect to the facilities that were the subject of the
regulation. Nevertheless, this Court reversed the convictions on
the ground that, by virtue of the regulation the State had become
sufficiently involved in the privately chosen segregation of the
restaurant to make that segregation state action. The Court
commented:

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

															378 U.S. at 378 U. S. 156 . Robinson involved neither a state command of restaurant
segregation, as in Peterson, nor a state policy of
enforcing restaurant segregation, as in Lombard. It
involved state imposition of burdens amounting to discouragement of
private integration. It is true that the burden in that case
happened to take the form of a requirement of segregated lavatory
facilities; but any other burden -- for example, a tax on
integrated restaurants -- would have sufficed to render the
privately chosen restaurant segregation unconstitutional state
action. Again, the Court's finding of state action did not depend
on the use of the State's trespass law. Robinson thus
stands for the proposition that state discouragement of a
particular kind of privately chosen integration renders that kind
of privately chosen segregation unconstitutional state action.

															The step from Peterson, Lombard, and Robinson to the present case is a small one. Indeed, it may be no step at
all, since those cases together hold that a state Page 398 U. S. 195 policy of discouraging privately chosen integration or
encouraging privately chosen segregation, even though the policy is
expressed in a form nondiscriminatory on its face, is
unconstitutional and taints the privately chosen segregation it
seeks to bring about. These precedents suggest that the question of
state action in this case is whether, as petitioner contends,
Mississippi statutes do in fact, manifest a state policy of
encouraging and supporting restaurant segregation, so that
respondent's alleged privately chosen segregation is
unconstitutional state action.

															To establish the existence in 1964 of a state statutory policy
to maintain segregation in restaurant facilities, petitioner relies
principally on Miss.Code Ann. § 2046.5 (1956), which, on its face,
"authorizes" and "empowers" owners of hotels, restaurants, and
other places of public accommodation and amusement to refuse to
serve whomsoever they choose. [ Footnote
3/2 ] The decision whether to serve a particular Page 398 U. S. 196 individual is left to the unfettered discretion of the
restaurant management, which may refuse service for any reason or
for no reason. Thus, while there is no explicit command in § 2046.5
that segregated eating facilities be maintained, a refusal to serve
on the basis of race alone falls clearly within the broad terms of
the statute. The restaurateur is informed, in essence, that he may
discriminate for racial or any other reasons, and that he may call
upon the police power of the State to make that private decision
effective through the trespass sanctions expressly incorporated in
§ 2046.5. It is clear that, to the extent that the statute
authorizes and empowers restaurateurs to discriminate on the basis
of race, it cannot pass muster under the Fourteenth Amendment. Burton v. Wilmington Parking Authority, supra, at 365 U. S.
726 -727 (STEWART, J., concurring). Burton involved a statute that permitted a restaurateur
to refuse service to "persons whose reception or entertainment by
him would be offensive to the major part of his customers. . . ."
MR. JUSTICE STEWART took the position that the state courts had
"construed this legislative enactment as authorizing discriminatory
classification based exclusively on color." 365 U.S. at 365 U. S.
726 -727. Justices Frankfurter, HARLAN, and Whittaker,
the only other Justices who dealt at length with the statute,
[ Footnote 3/3 ] Page 398 U. S. 197 agreed that it would violate the Fourteenth Amendment if so
construed. However, they thought the construction adopted by the
state courts insufficiently clear to make possible a final
determination of the issue.

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

															A legislative or constitutional provision need not be considered
in isolation, but may be examined "in terms of its immediate
objective,' its `ultimate effect' and its `historical context and
the conditions existing prior to its enactment.'" Reitman v.
Mulkey, supra, at 387 U. S. 373 ; cf. Lombard v. Louisiana, supra. Through the 1950's and
1960's Mississippi had a "steel-hard, inflexible, undeviating
official policy of segregation." United States v. City of
Jackson, 318 F.2d 1, 5 (C.A. 5th Cir.1963) (Wisdom, J.). See generally J. Silver, Mississippi: The Closed Society
(1964). Section 2046.5 itself was originally enacted in 1956 in the
wake of our decisions in Brown v. Board of Education, 347 U. S. 483 (1954); 349 U. S. 349 U.S.
294 (1955). It was passed contemporaneously with numerous statutes
and resolutions condemning Brown, [ Footnote 3/4 ] requiring racial segregation in various
transportation facilities, [ Footnote
3/5 ] and committing the state government to continued adherence
to the principles of racial Page 398 U. S. 198 segregation. [ Footnote 3/6 ]
Together with these other statutes and resolutions, § 2046.5 is
indexed in the 1956 Mississippi Session Laws under "Segregation"
and "Races." [ Footnote 3/7 ]
Prior Page 398 U. S. 199 to 1956, the State had declared unlawful any conspiracy "[t]o
overthrow or violate the segregation laws of this state. . . ."
[ Footnote 3/8 ] Subsequent to the
passage of § 2046.5, breach of the peace, vagrancy, and trespass
statutes similar to § 2046.5 [ Footnote
3/9 ] were enacted or employed to give local officials
additional weapons to combat attempts to desegregate places of
public accommodation. See, e.g., Dilworth v. Riner, 343
F.2d 226 (C.A. 5th Cir.1965). [ Footnote 3/10 ]

															Illustrative of the practical effect of these various provisions
is the incident that gave rise to this litigation. Page 398 U. S. 200 Petitioner was arrested for vagrancy shortly after she had
unsuccessfully sought service at respondent's store. In ordering
dismissal of the charges after removal of the prosecutions to the
federal courts, the Court of Appeals for the Fifth Circuit noted
"[t]he utter baselessness of any conceivable contention that the
vagrancy statutes prohibited any conduct in which these persons
were engaged," and concluded that the arrests had been made solely
because petitioner had attempted to receive service at a city
library and at respondent's store in the company of Negro friends. Achtenberg v. Mississippi, 393 F.2d 468, 474 475 (C.A. 5th
Cir.1968). [ Footnote 3/11 ] In
sum, it may be said of the various statutes and resolutions that
constituted Mississippi's response to Brown that "they are
bound together as the parts of a single plan. The plan may make the
parts unlawful." Swift & Co. v. United States, 196 U. S. 375 , 196 U. S. 396 (1905) (Holmes, J.). Section 2046.5 was an integral part of this
scheme to foster and encourage the practice of segregation in
places of public accommodation and elsewhere, which it furthered by
authorizing discrimination and by affording those who elected to
discriminate on the basis of race a remedy under state law. Indeed,
it is difficult to conceive of any purpose for the enactment of §
2046.5 other than to make clear the authorization of private
discrimination where such express authorization did not exist
previously. Cf. Mulkey v. Reitman, 64 Cal.2d Page 398 U. S. 201 529, 544, 413 P.2d 825, 835-836 (1966), aff'd, 387 U. S. 387 U.S.
369 (1967).

															Judge Waterman, dissenting in the Court of Appeals, states that,
under the common law, an innkeeper, and, by analogy, a
restaurateur, did not have the right to serve only whomever he
wished and to discriminate on the basis of race in selecting his
customers. 409 F.2d 121, 131-133. See Bell v. Maryland, 378 U. S. 226 , 378 U. S.
296 -300 (1964) (Goldberg, J., concurring). Since the
common law is presumed to apply in Mississippi, Western Union
Telegraph Co. v. Goodman, 166 Miss. 782, 146 So. 128 (1933),
Judge Waterman concludes that the State has "drastically changed
the common law" by enacting § 2046.5. [ Footnote 3/12 ] 409 F.2d at 132. Further support for
this view can be found in the preamble to § 2046.5, which states
that that provision " confer[s] upon any person . . . the
further right to refuse to sell or render a service to any person.
. . ." Miss.Laws 1956, c. 257. (Emphasis added.) This formulation
suggests that the legislature intended to alter the existing state
law.

															It is not completely clear, however, that the common law in
regard to innkeepers and restaurateurs, as understood by Judge
Waterman, was ever widely enforced in Mississippi in racial
matters. In Reconstruction times Page 398 U. S. 202 the State enacted a civil rights law that forbade discrimination
in places of public accommodation and amusement. See Miss.Laws 1873, c. LXIII. It was upheld and applied in Donnell
v. State, 48 Miss. 661 (1873). That law, however, quickly fell
into desuetude. [ Footnote 3/13 ]
Thus, some question exists as to whether Mississippi "changed" the
law as it existed in that State in 1956. At least it can be said,
however, that Mississippi, by enacting § 2046.5, clarified the
state law, and, in doing so, elected to place the full authority of
the State behind private acts of discrimination. Since § 2046.5
authorizes discrimination on the basis of race, it is invalid as
applied to authorize such discrimination in particular cases.

															The remaining question concerning this aspect of the present
case is what nexus between § 2046.5 and respondent's alleged
discrimination petitioner must show to establish that that
discrimination is state action violative of the Fourteenth
Amendment. Our prior decisions leave no doubt that the mere
existence of efforts by the State, through legislation or
otherwise, to authorize, encourage, or otherwise support racial
discrimination in a particular facet of life constitutes illegal
state involvement in those pertinent private acts of discrimination
that subsequently occur. See, e.g., Peterson v. City of
Greenville, supra; Lombard v. Louisiana, supra; Robinson v.
Florida, Page 398 U. S. 203 supra. [ Footnote
3/14 ] This is so, as we noted in Reitman v. Mulkey,
supra, at 387 U. S. 380 ,
whether or not the private discriminatory was actually influenced
in the commission of his act by the policy of the State. Thus, when
private action conforms with state policy, it becomes a
manifestation of that policy, and is thereby drawn within the ambit
of state action. In sum, if an individual discriminates on the
basis of race, and does so in conformity with the State's policy to
authorize or encourage such discrimination, neither the State nor
the private party will be heard to say that their mutual
involvement is outside the prohibitions of the Fourteenth
Amendment. Therefore, in light of the statutory scheme including §
2046.5, which authorized and encouraged restaurant segregation,
petitioner will fully satisfy the state action requirement of the
Fourteenth Amendment if she establishes that she was refused
service on the basis of race.

															I turn now to the other elements of petitioner's case under §
1983. II Title 42 U.S.C. § 1983 derives from § 1 of the Civil Rights Act
of 1871, 17 Stat. 13, entitled, "An Act to enforce the Provisions
of the Fourteenth Amendment to the Constitution of the United
States, and for other Purposes." [ Footnote 3/15 ] The 1871 Act, popularly known as the
"Ku Page 398 U. S. 204 Klux Klan Act," was, as its legislative history makes absolutely
clear, a response to the outrages committed by the Klan in many
parts of the South. The conditions that gave rise to the Act were
discussed extensively in Monroe v. Pape, 365 U.
S. 167 , 365 U. S.
172 -183 (1961). In the context of that case, we pointed
out that, although the 1871 Act was engendered by the activities of
the Klan, the language and purposes of § 1983 are not restricted to
that evil. See 365 U.S. at 365 U. S. 183 . See also Page 398 U. S. 205 United States v. Mosley, 238 U.
S. 383 , 238 U. S. 388 (1915), where Mr. Justice Holmes, speaking for the Court, commented
on § 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended,
now 18 U.S.C. § 241, in words applicable to § 1983:

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

															Stirred to action by the wholesale breakdown of protection of
civil rights in the South, Congress carried to completion the
creation of a comprehensive scheme of remedies -- civil, criminal,
and military [ Footnote 3/16 ]
--for the protection of constitutional rights from all major
interference.

															In the 1871 Act, Congress undertook to provide broad federal
civil remedies against interference with the exercise and actual
enjoyment of constitutional rights, particularly the right to equal
protection. Section 1 (now § 1983) provided a civil remedy for
deprivation of any constitutional right by a person acting "under
color of any law, statute, ordinance, regulation, custom, or usage
of any State. . . ." Section 2 (now surviving Page 398 U. S. 206 in part as § 1985(3)) provided a civil and a criminal remedy
against conspiratorial interference with any person's enjoyment of
equal protection. Section 6 (now § 1986) cast the net of civil
liability even more widely by providing a remedy against any person
who, having the ability by reasonable diligence to prevent a
violation of § 2, fails to do so. These remedies were bolstered by
other criminal provisions of § 2, and by previously enacted
criminal laws. Section 2 of the Civil Rights Act of 1866, 14 Stat.
27, reenacted as § 17 of the Enforcement Act of 1870, 16 Stat. 144,
as amended, now 18 U.S.C. § 242, provided a criminal remedy against
what amounts to a violation of § 1983. Section 6 of the Enforcement
Act of 1870, 16 Stat. 141, as amended, now 18 U.S.C. § 241,
provided a criminal remedy against conspiracies to interfere with
the exercise or enjoyment of a federal right. [ Footnote 3/17 ]

															The history of this scheme of remedies for the protection of
civil rights was, until very recently, one of virtual nullification
by this Court. Key provisions were declared unconstitutional or
given an unduly narrow construction wholly out of keeping with
their purposes. [ Footnote 3/18 ]
In United States v. Harris, 106 U.
S. 629 (1883), the Court invalidated the criminal
provision of § 2 of the Page 398 U. S. 207 Ku Klux Klan Act, the criminal analogue to § 1985(3), on the
ground that Congress was not authorized by § 5 of the Fourteenth
Amendment to prohibit interference by private persons with the
exercise of Fourteenth Amendment rights, except perhaps in extreme
and remote circumstances. Essential to the holding was a
recognition that the language of § 2 plainly reaches conspiracies
not involving state officials. See also Baldwin v. Franks, 120 U. S. 678 (1887). The statute (Rev.Stat. § 5519) was repealed in 1909. 35
Stat. 1154. In Collins v. Hardyman, 341 U.
S. 651 (1951), the Court, under the influence of Harris, construed § 1985(3). Pointing out that the
language of § 1985(3) is exactly the same (except for the remedy
provided) as the language of the statute condemned in Harris, the Court thought it necessary to read in a
limitation of the section to conspiracies involving state action,
in order to sustain its constitutionality. This limiting
construction necessarily carried over to § 1986, whose scope is
keyed to that of § 1985.

															Section 241 of 18 U.S.C. fared little better. That statute, as
indicated, deals generally with conspiracies to interfere with the
exercise of federal rights. It was established soon after its
enactment that § 241 reaches conspiracies among private persons to
interfere with "rights which arise from the relationship of the
individual and the Federal Government." United States v.
Williams, 341 U. S. 70 , 341 U. S. 77 (1951) (opinion of Frankfurter, J.). See, e.g., Ex parte
Yarbrough, 110 U. S. 651 (1884); United States v. Waddell, 112 U. S.
76 (1884); Logan v. United States, 144 U.
S. 263 (1892); In re Quarles, 158 U.
S. 532 (1895). However, the concept of "arising from"
was given a very narrow construction in United States v.
Cruikshank, 92 U. S. 542 (1876). Moreover, in United States v. Williams, supra, the
Court divided 4 to 4 on the question whether § 241 reaches private
conspiracies to Page 398 U. S. 208 interfere with the exercise of Fourteenth Amendment rights,
which arise from the relation of an individual and a State. The
four members of the Court who thought § 241 does not protect the
exercise of Fourteenth Amendment rights placed considerable
reliance on the argument that § 241 would be unconstitutional if
construed otherwise. See 341 U.S. at 341 U. S. 77 -78. See also Hodges v. United States, 203 U. S.
1 (1906).

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

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

															In United States v. Guest, 383 U.
S. 745 (1966), and United States v. Price, 383 U. S. 787 (1966), the Court expressly held that § 241 does protect Fourteenth
Amendment rights, thereby squarely resolving the issue that divided
the court in Williams. Because the conspiracy in Guest was alleged to have been carried out by private
persons acting in conjunction with state officials, [ Footnote 3/19 ] the Court found it
unnecessary to consider whether § 241 Page 398 U. S. 209 would be constitutional if construed to reach wholly private
conspiracies to interfere with the exercise of Fourteenth Amendment
rights. However, to put the point beyond doubt, six members of the
Court in Guest expressly stated their view that Congress
has power under § 5 of the Fourteenth Amendment to protect
Fourteenth Amendment rights against interference by private
persons, without regard to state involvement in the private
interference. See United States v. Guest, supra, at 383 U. S.
761 -762 (opinion of Clark, J., joined by BLACK and
Fortas, JJ.), 383 U. S.
774 -786 (opinion of BRENNAN, J., joined by Warren, C.J.,
and DOUGLAS, J.). This general view of congressional power under §
5 was expressly adopted by the Court in Katzenbach v.
Morgan, 384 U. S. 641 (1966), where we said:

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

															384 U.S. at 384 U. S.
650 -651. See also South Carolina v. Katzenbach, 383 U. S. 301 (1966). [ Footnote 3/20 ]

															Thus, the holding of Harris and the Civil Rights
Cases, 109 U. S. 3 (1883),
that Congress cannot, under § 5, protect the exercise of Fourteenth
Amendment rights from private interference has been overruled. See United States v. Guest, supra, at 383 U. S.
782 -783 (opinion of BRENNAN, Page 398 U. S. 210 J.). Consequently, the interpretation of the civil rights
statutes need no longer be warped by unwarranted concern that
Congress lacks power under § 5 to reach conduct by persons other
than public officials. There is no doubt that § 1983 protects
Fourteenth Amendment rights. See Monroe v. Pape, supra, at 365 U. S.
170 -171; id. at 365 U. S.
205 -206 (opinion of Frankfurter, J.). Accordingly, the
only substantial question in this branch of the present case is
whether § 1983 was intended by Congress to reach nonofficial
conduct of the kind at issue here.

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

															Petitioner's claim that respondent acted under color of
Mississippi statutory law is similar to her claim that respondent's
action constituted state action. Indeed, the two claims would be
proved by the same factual showing if respondent were a state
official who acted by virtue of his official capacity or a private
party acting in conjunction with such state official, for when a
state official acts by virtue of his official capacity, it is
precisely the use or misuse of state authority that makes the
action state action. However, when a private party acts alone,
[ Footnote 3/21 ] more must be
shown, in my view, to establish that he acts "under color of" a
state statute or other authority than is needed to show that his
action constitutes state action. Page 398 U. S. 211 As I pointed out in 398 U. S. supra, under the constitutional principle that no State
shall have any significant involvement whatever in racial
discrimination and under our prior cases, the mere existence of a
state policy authorizing, encouraging, or otherwise supporting
racial discrimination in a particular kind of service is sufficient
to render private discrimination in that service state action.
However, the statutory term "under color of any statute" has a
narrower meaning than the constitutional concept of "state action."
The "under color" language of § 1983 serves generally to limit the
kinds of constitutional violation for which the section provides a
remedy. To understand how that language applies to private persons,
it is helpful to consider its application to state officials. In
other legal usage, the word "color," as in "color of authority,"
"color of law," "color of office," "color of title," and
"colorable," suggests a kind of holding out, and means "appearance,
semblance, or simulacrum," but not necessarily the reality. See H. Black, Law Dictionary 331-332 (rev.4th ed.1968).
However, as the word appears in § 1983, it covers both actions
actually authorized by a State, see Myers v. Anderson, 238 U. S. 368 (1915); Nixon v. Herndon, 273 U.
S. 536 (1927); Lane v. Wilson, 307 U.
S. 268 (1939), and misuse of state authority in ways not
intended by the State, see, e.g., Monroe v. Pape, supra; Screws
v. United States, supra, at 325 U. S. 111 .
In some of these latter situations, there is a holding out in that
the official uses his actual authority to give the appearance that
he has authority to take the particular action he is taking. In
other cases, the abuse of power is so palpable that the victim or
any observer may well be aware that the official is exceeding his
authority, so that any holding out of authority would be wholly
transparent. In these cases, the misuse of authority alone is
enough to warrant recovery. See, e.g., Monroe v. Pape,
supra; Page 398 U. S. 212 United States v. Classic, 313 U.
S. 299 , 313 U. S. 326 (1941); Catlette v. United States, 132 F.2d 902 (C.A.4th
Cir.1943). Thus, a public official acting by virtue of his official
capacity always acts under color of a state statute or other law,
whether or not he overtly relies on that authority to support his
action, and whether or not that action violates state law. A
private person acts "under color of" a state statute or other law
when he, like the official, in some way acts consciously pursuant
to some law that gives him aid, comfort, or incentive, cf.
Griffin v. Maryland, 378 U. S. 130 (1964); Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 (C.A.4th Cir.1955), appeal dismissed, 351
U.S. 901 (1956); or when he acts in conjunction with a state
official, as in United States v. Price, supra. In the
present case, Mississippi statutory law did authorize and encourage
respondent to discriminate against petitioner on the basis of race.
Therefore petitioner can establish that respondent acted "under
color of" Mississippi statutory law by showing that respondent was
aware of that body of law as prescribing, encouraging, authorizing,
legitimating, effectuating, or otherwise supporting its refusal to
serve petitioner. The vice of action under color of statute exists
wherever the private discriminatory consciously draws from a state
statute any kind of support for his discrimination. Therefore, it
is irrelevant that petitioner was not arrested under the trespass
provision of § 2046.5.

															Petitioner's second contention, that respondent discriminated
against her "under color of [a] custom, or usage" of Mississippi,
presents more difficulty. I have found few prior cases construing
the phrase "under color of custom, or usage" in the context of §
1983 [ Footnote 3/22 ] and it Page 398 U. S. 213 has not been litigated under 18 U.S.C. § 242, though, in that
context it, was briefly discussed in the opinions in Jones v.
Alfred H. Mayer Co., supra. It is true that, on occasion, this
Court has summed up the statutory language "under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory" as meaning "under color of law," and as incorporating a
requirement of state action akin to that of the Equal Protection
Clause. See, e.g., United States v. Price, supra, at 383 U. S. 794 n. 7. But the loose and vague phrase "under color of law" has
always been used by the Court in the context of cases in which
reliance was put on something other than "custom or usage." The
Court Page 398 U. S. 214 has never held, or even intimated, that "custom or usage" means
"law." Indeed, MR. JUSTICE HARLAN, dissenting in Jones v.
Alfred H. Mayer Co., supra, used a different formula in
summarizing the "under color of" language in § 242; he said it
referred to "action taken pursuant to state or community
authority. " 392 U.S. at 392 U. S. 454 .
Moreover, he referred to "discriminations which were legitimated by
a state or community sanction sufficiently powerful to
deserve the name custom.'" Id. at 392 U. S. 457 .
(Emphasis added.) See also Monroe v. Pape, supra, at 365 U. S. 193 (HARLAN, J., concurring) ("abuses so recurrent as to amount to
`custom, or usage' "). Thus, "under color of law" has not been the
only formula used by members of this Court to summarize the
parallel language in §§ 242 and 1983. [ Footnote 3/23 ] It is also true that the phrase "under
color Page 398 U. S. 215 of law" occurs in the debates on the 1871 Act, see 398
U.S. 144 fn3/25|>n. 25, infra. But since, in the
original version of § 1983, as introduced and enacted, the word
"law" was the first word in the enumeration following "color of,"
[ Footnote 3/24 ] the use of "under
color of law" as a handy formula in debate is readily explained.
More importantly, the phrase has never been taken to be a
considered, comprehensive, and authoritative summation of the
provisions of § 1983. As this Court said over a century ago and has
since repeated,

															"In expounding a statute, we must not be guided by a single
sentence or member of a sentence, but look to the provisions of the
whole law, and to its object and policy." United States v. Boisdore's
Heirs , 8 How. 113, 49 U. S. 122 (1849) (Taney, C.J.); Mastro Plastics Corp. v. NLRB, 350 U. S. 270 , 350 U. S. 285 (1956); Richards v. United States, 369 U. S.
1 , 369 U. S. 11 (1962); Dandridge v. Williams, 397 U.
S. 471 , 397 U. S. 517 (1970) (MARSHALL, J., dissenting).

															The legislative history of § 1983 provides no direct guidance
for the interpretation of the phrase "custom or usage." Much of the
lengthy debate concerned the truth of the allegations of KKK
outrages and the constitutionality and wisdom of other sections of
the Act. Little attention was given to the precise wording of §
1983, and there was no sustained discussion of the meaning of
"custom or usage." [ Footnote
3/25 ] Consequently, in my Page 398 U. S. 216 view, we are called on to analyze the purposes Congress sought
to achieve by enacting § 1983 in the context of the Civil Rights
Act of 1871. Only by relating the Page 398 U. S. 217 phrase "custom or usage" to congressional purposes can we
properly interpret and apply the statutory language today.

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

															"Such, then, is the character of these outrages -- numerous,
repeated, continued from month to month and year to year, extending
over many States; all similar in their character, aimed at a
similar class of citizens; all palliated or excused or Page 398 U. S. 218 justified or absolutely denied by the same class of men. Not
like the local outbreaks sometimes appearing in particular
districts, where a mob or a band of regulators may for a time
commit crimes and defy the law, but having every mark and attribute
of a systematic, persistent, well defined organization, with a
fixed purpose, with a regular plan of action."

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

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

															Cong.Globe, 42d Cong., 1st Sess., 458-459. See also id. at App. 172 (remarks of Sen. Pool, a supporter); id. at
653 (remarks of Sen. Osborn, a supporter); id. at 155-160
(remarks of Sen. Sherman, a supporter). Thus, the mischief that the
legislation of 1871 was intended to remedy derived, not from state
action, but from concerted "private" action that the States were
unwilling or unable to cope with.

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

															"The real evil in the southern States you will find in the
baffled pro-slavery tendency prevailing there; Page 398 U. S. 219 in a diseased public sentiment which partly vents itself in
violent acts, partly winks at them, and partly permits itself to be
overawed by them. That public sentiment is not only terrorizing
timid people, but it is corrupting the jury-box, it is overawing
the witness-stand, and it is thus obstructing the functions of
justice." Id. at 687. Representative [later President] Garfield,
a moderate supporter, focused more specifically on one of the
principal evils § 1983 was designed to remedy:

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

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

															The debates in both Houses also make it clear that many of those
who gave the most careful attention to the conditions that called
for the bill, to the provisions of the bill itself, and to the
problems of constitutionality and policy it presented did not think
that, in § 1983, the Federal Government undertook to provide a
federal remedy for every isolated act by private persons that Page 398 U. S. 220 amounted to interference with the exercise of a constitutional
right. See, e.g., id. at 578-579 (remarks of Sen.
Trumbull, an opponent); id. at 514 (remarks of Rep.
Poland, a supporter and conferee); id. at App. 153
(remarks of Rep. Garfield); id. at App. 79 (remarks of
Rep. A. Perry, a supporter). [ Footnote 3/26 ] Where, for example, the injury to
federal rights was the result of a genuinely individual act of
private prejudice, then it could not be said that the state and
local authorities were failing to give equal protection by
countenancing major interference with the exercise of federal
rights. Indeed, in most instances, it could rightly be said that
the acts of discrimination were isolated precisely because the
State was affirmatively fulfilling its obligation to afford equal
protection. In such circumstances, no useful purpose would be
served by providing a federal remedy for the isolated wrong, and
the resulting federal intrusion into state affairs would be
unjustified.

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

															"I believe, Mr. Speaker, that we have at last secured a bill,
trenchant in its provisions, that reaches down into the very heart
of the Ku Klux organization, and yet is so guarded as to preserve
intact the autonomy of the States, the machinery of the State
governments, and the municipal organizations established under
State laws." Id. at 808. This statute, "trenchant" but measured,
provided a scheme of three civil remedies, currently codified in §§
1983, 1985, and 1986. In view of the purposes these remedies were
designed to achieve, § 1983 would be read too narrowly if it were
restricted to acts of state officials and those acting in concert
with them. Congress did not say, "Every state official and others
acting Page 398 U. S. 221 in concert with him . . ."; Congress said, " [A]ny [now Every ] person who, under color . . ." (emphasis
added). Similarly, it would be read too broadly if interpreted to
reach acts of purely individual discrimination. As I read § 1983,
together with the other sections, against the background of the
congressional debates, I understand them to protect the exercise of
constitutional rights by reaching three kinds of interference that
are sufficiently "major" in their effects to have warranted
congressional action.

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

															The second category is that involving conspiracy, which is
within the ambit of § 1985. It is well recognized in the criminal
law that conspiratorial agreements for concerted action present
aggravated dangers to society, see United States v.
Rabinowich, 238 U. S. 78 , 238 U. S. 88 (1915); Pinkerton v. United States, 328 U.
S. 640 , 328 U. S. 644 (1946); Krulewitch v. United States, 336 U.
S. 440 , 336 U. S.
448 -449 (1949) (Jackson, J., concurring); Note,
Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920,
923-924 (1959), and, for this general reason, as exemplified in the
activities of the Ku Klux Klan, Congress provided for a civil
remedy against conspiratorial interference with the right to equal
protection. [ Footnote 3/27 ] Page 398 U. S. 222 The third category is that where, in the absence of the overt
elements of a conspiracy, constitutional rights are violated by
widespread habitual practices or conventions regarded as
prescribing norms for conduct, and supported by common consent, or
official or unofficial community sanctions -- in short, customs and
usages. Where violation of constitutional rights is customary, the
violation is, by definition, widespread and enduring, and therefore
worthy of congressional response. As I read § 1983, that response
was made in the provision of a remedy against

															"[e]very person who, under color of any . . . custom, or usage,
of any State . . . subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution. . . . [ Footnote 3/28 ]"

															The excerpts from the congressional debate that I have quoted
make clear that Congress wanted a civil remedy not only against
conspiratorial violence, but also against the perhaps more subtle
but potentially more virulent customary infringements of
constitutional rights. The Ku Klux Klan was an extreme reflection
of broadly held attitudes toward Negroes and longstanding practices
of denying them rights that the Constitution secured for all
people. The fundamental evil was a "diseased public sentiment"
reflected in multifarious efforts to confine Negroes in their
former status of inferiority. Accordingly, a statute designed to
reach "down into the very heart of the Ku Klux organization" had to
deal with the widespread manifestations of that diseased public Page 398 U. S. 223 sentiment. Respect for constitutional rights was to be "embodied
not only in the laws, but intrenched in the daily habits of the
American people. . . ." Cong.Globe, 42d Cong., 1st Sess., 339
(remarks of Rep. Kelley). Congress could not legislate popular
sentiments, but in providing generally in the Ku Klux Klan Act for
the protection of constitutional rights against major types of
interference it could, and I think it did in § 1983, provide a
remedy against violations that, in particular States were so common
as to be customary.

															As this Court recently said in construing another of the early
civil rights statutes,

															"We think that history leaves no doubt that, if we are to give
[the statute] the scope that its origins dictate, we must accord it
a sweep as broad as its language." United States v. Price, supra, at 383 U. S. 801 .
The language of § 1983 imposes no obstacle to an interpretation
carrying out the congressional purposes I have identified. I think
it clearly possible for a private person or entity like respondent
to "subject" a person or "[cause him] to be subjected . . . to the
deprivation" of a constitutional right, as those quoted words are
used in § 1983. In Monroe v. Pape, supra, we held that a
cause of action was stated under § 1983 by an allegation that
police officers invaded petitioners' home in violation of the
Fourth and Fourteenth Amendments. Certainly if "deprivation" in §
1983 means something like "extinguishment," then no cause of action
could have been stated, for no policeman, nor even any state
government as a whole, can extinguish a constitutional right, at
least not while this Court sits. Cf. Panhandle Oil Co. v.
Knox, 277 U. S. 218 , 277 U. S. 223 (Holmes, J., dissenting). [ Footnote
3/29 ] A constitutional Page 398 U. S. 224 right can be extinguished only by amendment of the Constitution
itself. If "deprivation" meant "extinguishment," 1983 -- and also
18 U.S. C § 242 -- would be a nullity. Thus, all the cases finding
violations of these sections must be taken to have held that
"deprivation" as used in these statutes means, not
"extinguishment," but rather something like "violation," "denial,"
or "infringement." Cf. Jones v. Alfred H. Mayer Co.,
supra, at 392 U. S.
420 -421; Cong.Globe, 39th Cong., 1st Sess., 605 (remarks
of Sen. Trumbull, manager of 1866 Civil Rights bill, on § 242). As
the present case illustrates, it is possible for private action in
some circumstances to constitute state action violating a
constitutional right, and such action amounts to "deprivation"
within the meaning of § 1983.

															In discussing petitioner's contention that respondent acted
under color of state law, I have already indicated my understanding
of the words "under color of." See supra at 398 U. S.
211 -212. I would apply that understanding here as well.
I read "custom, or usage" in 1983 to mean what it has usually meant
at common law -- a widespread and longstanding practice, commonly
regarded as prescribing norms for conduct, and backed by
sanctions. Page 398 U. S. 225 See, e.g., 37 U. S. Lucas, 12 Pet. 410, 37 U. S. 437 , 37 U. S.
445 -446 (1838); United States v.
Arredondo , 6 Pet. 691, 31 U. S.
713 -714 (1832). The sanctions need not be imposed by the
State. A custom can have the effect or force of law even where it
is not backed by the force of the State. See, e.g., 56 U. S. Otterback, 15 How. 539, 56 U. S. 545 (1854); Merchants' Bank v. State
Bank , 10 Wall. 604, 77 U. S. 651 (1871); cf. Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 423 .
[ Footnote 3/30 ] The power of
custom to generate and impose rules of conduct, even without the
support of the State, has long been recognized. See, e.g., 68 U. S. Hacket, 1 Wall. 83, 68 U. S. 95 (1864); 1 W. Blackstone, Commentaries *64; B. Cardozo, The Nature
of the Judicial Process 58-64 (1921). [ Footnote 3/31 ] Page 398 U. S. 226 Of course, a custom or usage is within § 1983 only if it is a
custom of a "State or Territory." It was recognized during the
debate on the Ku Klux Klan Act that the word "State" does not refer
only to state government. In Texas v.
White , 7 Wall. 700, 74 U. S.
720 -721 (1869), [ Footnote
3/32 ] decided just two years before the debate, this Court said
of the word "State" as used in the Constitution:

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

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

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

															"In the Constitution, the term 'state' most frequently expresses
the combined idea, just noticed, of people, territory, and
government. A state, in the ordinary sense of the Constitution, is
a political community of free citizens, occupying a territory of
defined boundaries, and organized under a Page 398 U. S. 227 government sanctioned and limited by a written constitution, and
established by the consent of the governed."

															This language was quoted in the debate. See Cong.Globe,
42d Cong., 1st Sess., App. 80 (remarks of Rep. A. Perry). When the
word "State" in § 1983 is so understood, then it is not at all
strained or tortured -- indeed, it is perfectly natural -- to read
"custom" as meaning simply "custom" in the enumeration "statute,
ordinance, regulation, custom, or usage, of any State." Moreover, I
agree with the Court that, just as an ordinance can be state
action, so, too, can a custom of a subdivision of a State be a
custom "of [a] State" for purposes of 1983; and, in my view, a
custom of the people living in a subdivision is a custom of the
subdivision. Thus, a person acts under color of a custom or usage
of a State when there is among the people of a State or subdivision
of a State a widespread and longstanding practice regarded as
prescribing norms for conduct and supported by community sentiment
or sanctions, and a person acts in accordance with this custom
either from a belief that the norms it prescribes authorize or
require his conduct or from a belief that the community at large
regards it as authorizing or requiring his conduct. [ Footnote 3/33 ] Page 398 U. S. 228 The Court eschews any attempt to interpret § 1983 against the
background of a rational scheme of congressional purposes. Instead,
it relies basically on three sets of materials to support its
restrictive interpretation of the statute. First are cases; some
make casual use of the vague phrase "under color of law" as a
summation of the "under color" language of § 1983, and the rest
interpret the significance of custom either under an erroneous
theory of constitutional law or outside the specific context of
1983 altogether. I have already shown why these cases are hardly
relevant, much less controlling, here. See supra at 398 U. S.
213 -214 and n. 22. The Court's second set of authorities
consists of three quotations from the legislative history
purporting to explain the scope of § 1983. I have already shown
that such quotations cannot be set up as a reliable guide to
interpretation. See 398
U.S. 144 fn3/25|>n. 25, supra. Given the
demonstrable lack of consensus among the debaters on this precise
issue, it is highly misleading to select two or three statements
arguably favorable to one view and pronounce them authoritative.
Moreover, as I have already indicated, see n. 25 supra, the remarks of
Representative Shellabarger and Senator Edmunds consist merely of a
handy formula for a debate not directed to matters of
draftsmanship, and are themselves subject to varying
interpretation.

															Finally, the Court dwells on the relative lack of controversy
over § 1983 in contrast to the heated debate over § 2 of the 1871
Act. However, despite Senator Edmunds' complacent prediction, §
1983 was opposed, and opposed vigorously. Senator Johnston
commented,

															"The Senator from Vermont [Senator Edmunds] said that there
would be no objection to the first section of the bill. That
section, in my view, has only the slight objection of being
unconstitutional."

															Cong.Globe, 42d Cong., 1st Sess., App. 215. Representative Page 398 U. S. 229 McHenry called § 1983 an "outrage," a "flagrant infraction" of
the Constitution. Id. at 429. Representative Edward Rice
characterized it as bringing "lambs to the slaughter"; it was, he
said,

															"a provision for dragging persons from their homes, from their
neighbors, and from the vicinage of the witnesses for the redress
of private grievances to the Federal courts." Id. at 395. See also id. at App. 216-217
(remarks of Sen. Thurman).

															Moreover, the Court does not adequately characterize the
controversy over § 2 of the Act. As originally proposed, § 2 would
have made a federal crime of any conspiracy in a State to commit an
act that, if committed on a federal enclave, would constitute

															"murder, manslaughter, mayhem, robbery, assault and battery,
perjury, subornation of perjury, criminal obstruction of legal
process or resistance of officers in discharge of official duty,
arson, or larceny." See id. at App. 68-69 (remarks of Rep. Shellabarger).
Extreme opponents of the bill attacked this section, as they
attacked other sections. Moderate opponents objected not because
the section reached private conduct ,but because it ousted the
States from a broad range of their criminal jurisdiction even where
they were successfully meeting their constitutional obligation to
provide equal protection. See, e.g., id. at 366 (remarks
of Rep. Arthur, an opponent). Representative Garfield, for example,
criticized the original § 2, see id. at App. 153, but
praised and voted for the final bill, including § 2, which he
understood to reach private conduct, see id. at 807,
808.

															On its intrinsic merits, the Court's conclusion that custom "for
purposes of § 1983 must have the force of law" would be wholly
acceptable if the phrase "force of law" meant, as at common law,
merely that custom must have the effect of law -- that it be
generally regarded as having normative force, whether or not
enforced Page 398 U. S. 230 or otherwise supported by government. It is clear, however, that
this is not the Court's meaning. The Court takes the position that
custom can acquire the force of law only "by virtue of the
persistent practices of state officials." Little in the debate
supports this narrow reading of the statute. The statement by
Representative Garfield on which the Court relies, ante at 398 U. S. 167 ,
refers not merely to "permanent and well settled" official
practices, but more broadly to "systematic maladministration of
[the laws], or a neglect or refusal to enforce" them. In short,
under Representative Garfield's theory of the Equal Protection
Clause, private customary violations of constitutional rights on
the basis of race were denials of equal protection because of the
failure of the State to prevent or remedy them. Mere state inaction
converted customary private discrimination into a denial of equal
protection, which Congress, under §§ 1 and 5, had power to remedy. See also Cong.Globe, 42d Cong., 1st Sess., 333-334
(remarks of Rep. Hoar, a moderate supporter); id. at 375
(remarks of Rep. Lowe, a supporter). Our cases have never
explicitly held that state inaction alone in the face of purely
private discrimination constitutes a denial of equal protection. But cf. Burton v. Wilmington Parking Authority, supra, at 365 U. S. 725 ; Catlette v. United States, 132 F.2d 902, 907 (C.A.4th
Cir.1943); Lynch v. United States, 189 F.2d 476 (C.A. 5th
Cir.1951); Henkin, Shelley v. Kraemer: Notes for a Revised
Opinion, 110 U.Pa.L.Rev. 473 (1962); see also supra at
189. Nevertheless, the constitutional theory of the men who enacted
§ 1983 remains relevant for our interpretation of its meaning.
Representative Garfield's theory of § 1 of the Fourteenth Amendment
and of congressional power under §§ 1 and 5 had strong support in
the debate. See Harris, supra, n 26. Recognition of that theory -- and a fortiori of the other principal theory among the bill's
supporters, the Page 398 U. S. 231 radical view that the Fourteenth Amendment empowers Congress to
assert plenary jurisdiction over state affairs, see ibid. -- only provides further confirmation for the conclusion that
"custom" in 1983 means custom of the people of a State, not custom
of state officials. III Since this case is being remanded, I think it proper to express
my views on the kinds of relief to which petitioner may be entitled
if she should prevail on the merits.

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

															Section 1983 does not in general impose strict liability on all
who come within its prohibitions; certain broad immunities are
recognized. See Tenney v. Brandhove, supra; Monroe v. Pape,
supra, at 365 U. S.
187 -192; Pierson v. Ray, supra, at 386 U. S.
553 -555. In some types of cases where the wrong under §
1983 is closely analogous to a wrong Page 398 U. S. 232 recognized in the law of torts, it is appropriate for the
federal court to apply the relevant tort doctrines as to the
bearing of particular mental elements on the existence and amount
of liability. See, e.g., Pierson v. Ray, supra; Whirl v.
Kern, 407 F.2d 781 (C.A. 5th Cir.1969). In other types of
cases, however, the common law of torts may be divided on important
questions of defenses and relief, or it may be inadequate to carry
out the purposes of the statute. Thus, the common law is not an
infallible guide for the development of § 1983. In particular,
denial of equal protection on the basis of race was the central
evil that § 1983 was designed to stamp out. Where that is the basis
for recovery, relief should not depend on the vagaries of the
general common law, but should be governed by uniform and effective
federal standards.

															The appropriateness of any particular remedy in a given case
depends on the circumstances of that case, and especially on the
degree of culpability of the defendant. In my view, where a
plaintiff shows a voluntary denial of equal protection on the
ground of race amounting to a violation of § 1983, he is entitled
to recover compensation for actual damages, if any, simply on the
basis of the proved violation. The question of compensatory damages
is one of allocation of actual loss, and, as between the innocent
plaintiff and the defendant who deliberately discriminates on the
basis of race, I think it just and faithful to the statutory
purposes to impose the loss on the discriminator, even if he was
unaware that his discrimination constituted state action denying
equal protection. Proof of an evil motive or of a specific intent
to deprive a person of a constitutional right is generally not
required under § 1983. Monroe v. Pape, supra, at 365 U. S.
183 -187; Whirl v. Kern, supra. And, indeed, in Nixon v. Herndon, 273 U. S. 536 (1927), and Lane v. Wilson, 307 U.
S. 268 (1939), this Court upheld complaints seeking Page 398 U. S. 233 $5,000 recoveries from state election officials who merely
carried out their official duty to prevent the plaintiffs from
voting under discriminatory state statutes which made them
ineligible to vote. Of course, there may be cases where it would be
proper to give declaratory or injunctive relief without damages. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358,
370, 293 F.2d 835, 847 (1961) (Bazelon, J., dissenting).

															To recover punitive damages, I believe a plaintiff must show
more than a bare violation of § 1983. On the other hand, he need
not show that the defendant specifically intended to deprive him of
a recognized federal right, as is required by the word "willfully"
in 18 U.S.C. § 242, see Screws v. United States, supra. Nor need he show actual damages. Basista v. Weir, supra, at 87-88; Tracy v. Robbins, 40 F.R.D. 108, 113 (D.C.
S.C.1966). It is sufficient for the plaintiff to show either that
the defendant acted "under color of [a] statute, ordinance,
regulation, custom, or usage of any State or Territory," with
actual knowledge that he was violating a right "secured by the
Constitution and laws," or that the defendant acted with reckless
disregard of whether he was thus violating such a right. Cf. C. McCormick, Handbook on the Law of Damages § 79
(1935). However, in my view, a proprietor of a place of public
accommodation who discriminates on the basis of race after our
decision in Peterson v. City of Greenville, supra, and the
enactment of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to
2000h-6, does so with reckless disregard as a matter of law, and
therefore may be found liable for punitive damages. [ Footnote 3/34 ] Of course, it is proper
for the factfinder to consider the degree of recklessness or actual
knowledge and other circumstances in assessing the amount of
punitive damages to award in a particular case. Page 398 U. S. 234 It may be argued that it is inequitable to impose punitive
damages on a defendant, a restaurateur for example, who knowingly
or recklessly violates a constitutional right and § 1983 out of
fear that he will lose some of his customers if he does not. That
argument is plainly unacceptable. The protection of constitutional
rights may not be watered down because some members of the public
actively oppose the exercise of constitutional rights by others. Cooper v. Aaron, 358 U. S. 1 (1958).
To give any weight at all to that argument would be to encourage
popular opposition to compliance with the Constitution. Moreover,
the argument is particularly devoid of merit in the context of §
1983, which was enacted by a Congress determined to stamp out
widespread violations of constitutional rights at virtually any
cost, and which imposed liability even on persons who simply failed
to prevent certain violations. See Cong.Globe, 41st Cong.,
1st Sess., 804 (remarks of Rep. Poland). If § 1983 is given an
interpretation befitting its purposes, the threat of withdrawal of
patronage will be largely empty, since no other place of public
accommodation in the community will be in a better position to
discriminate. The prospect of substantial punitive damages may be
the most effective means to persuade all proprietors of places of
public accommodation to respect constitutional rights.

															[ Footnote 3/1 ]

															I do not agree with the statement on page 398 U. S. 150 of the Court's opinion that the "second element [of § 1983]
requires that the plaintiff show that the defendant acted under
color of law.'" See 398 U. S. infra. [ Footnote 3/2 ]

															Section 2046.5 reads as follows:

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

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

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

															[ Footnote 3/3 ]

															The Court found state action on a different ground.

															[ Footnote 3/4 ]

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

															[ Footnote 3/5 ] E.g., Miss.Laws 1956, cc. 258 260 [now Miss.Code Ann.
§§ 7787.5, 2351.5, 2351.7].

															[ Footnote 3/6 ] E.g., Miss.Laws 1956, c. 254 [now Miss.Code Ann. §
4065.3]. See Inaugural Address of former Governor James P.
Coleman, Miss. House Journal 59, 65-68 (1956). See also Miss.Code Ann. § 4065.4 (enacted 1962).

															[ Footnote 3/7 ]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

															[ Footnote 3/8 ]

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

															[ Footnote 3/9 ] E.g., Miss.Code Ann. §§ 2087.5, 2087.7, 2089.5 (enacted
1960); § 2087.9 (enacted 1964).

															[ Footnote 3/10 ] See generally Bailey v. Patterson, 323 F.2d 201 (C.A.
5th Cir.1963).

															[ Footnote 3/11 ] Cf. United States v. City of Jackson, 318 F.2d 1, 6-7
(C.A. 5th Cir.1963), involving segregation in railroad and bus
terminals, where the Court of Appeals noted that

															"one of the sophisticated methods for circumventing the law is
for local police to eschew 'segregation' laws, using in their place
conventional breach of peace or trespass laws as instruments for
enforcing segregation, euphemistically termed 'separation.'" See also Lewis v. Greyhound Corp., 199 F.
Supp. 210 (D.C. M.D. Ala.1961); Bailey v.
Patterson, 199 F.
Supp. 595 , 609-622 (D.C.S.D. Miss.1961) (Rives, J.,
dissenting), vacated and remanded, 369 U. S.
31 (1962).

															[ Footnote 3/12 ] See Donnell v. State, 48 Miss. 661, 680-681 (1873):

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

															[ Footnote 3/13 ]

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

															[ Footnote 3/14 ] Also see McCabe v. Atchison, Topeka & Santa Fe R.
Co., 235 U. S. 151 (1914); Evans v. Abney, 396 U. S. 435 , 396 U. S.
457 -458 (1970) (BRENNAN, J., dissenting); Evans v.
Newton, 382 U. S. 296 , 382 U. S.
302 -312 (1966) (opinion of WHITE, J.); Burton v.
Wilmington Parking Authority, supra, at 365 U. S.
726 -727 (STEWART, J., concurring). See also Mulkey
v. Reitman, supra. [ Footnote 3/15 ]

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

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

															Section 1983 presently provides:

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."

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

															[ Footnote 3/16 ]

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

															[ Footnote 3/17 ]

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

															[ Footnote 3/18 ] See generally Gressman, The Unhappy History of Civil
Rights Legislation, 50 Mich.L.Rev. 1323 (1952).

															[ Footnote 3/19 ] Guest was an appeal from the dismissal of an indictment
for failure to state an offense under the laws of the United
States.

															[ Footnote 3/20 ] See generally Cox, Foreword: Constitutional
Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91
(1966).

															[ Footnote 3/21 ]

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

															[ Footnote 3/22 ]

															Mr. Justice Frankfurter made a passing reference to "custom" in
his separate opinion in Monroe v. Pape, supra, at 365 U. S. 246 ; see infra at 398 U. S. 216 ,
n. 25. In the lower courts, the phrase "custom or usage" has not
received thorough consideration, and has been given different
interpretations. Compare Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363-364, 293 F.2d 835, 840-841 (1961) with Gannon v. Action, 303 F.
Supp. 1240 (D.C.E.D.Mo.1969). In the Hot Shoppes case,
the court construed "custom or usage" to include a state action
requirement; but it did so solely on the basis of doubts about
congressional power to reach private interference with Fourteenth
Amendment rights. Those doubts have now been completely removed by
decisions of this Court. See supra at 398 U. S.
208 -210. In two other cases, Williams v. Howard
Johnson's Restaurant, 268 F.2d 845 (C.A.4th Cir.1959), and Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th
Cir.1963), on subsequent appeal sub nom. Williams v.
Lewis, 342 F.2d 727 (C.A.4th Cir.1965) (en banc), the Court of
Appeals for the Fourth Circuit held that private custom and usage
did not amount to state action. In each case, the court dealt with
custom and usage under the first element of § 1983 -- deprivation
of a constitutional right -- and not under the second element --
action under color of statute, ordinance, regulation, custom, or
usage. Those two decisions were constructions of the Equal
Protection Clause, not of § 1983. The same is true of Slack v.
Atlantic White Tower System, 181 F.
Supp. 124 (D.C. Md.), aff'd, 284 F.2d 746 (C.A.4th
Cir.1960), cited by the Court. Moreover, in that case, the court
had no occasion to consider the elements of a § 1983 custom,
because it took judicial notice of reports showing that, in the
defendant's area, there was, in fact, no custom of restaurant
segregation in any sense. See 181 F. Supp. at 126.

															[ Footnote 3/23 ]

															As presently codified, § 242 begins:

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

															This language differs from the comparable language of § 1983, 398
U.S. 144 fn3/15|>n. 15, supra, in several respects.
For example: "law" precedes "statute" in § 242, but not in § 1983;
"or usage" follows "custom" in § 1983, but not in § 242; the entire
enumeration "statute . . . usage" is qualified by "of any State or
Territory" in § 1983, but not in § 242; § 1983 refers to rights
that are "secured," whereas § 242 refers to rights "secured or
protected"; § 1983 covers rights secured "by the Constitution and laws " (emphasis added), whereas § 242 covers rights
secured or protected "by the Constitution or laws of the
United States" (emphasis added); § 242 reaches only acts done
"willfully," but § 1983 is not so limited. As originally enacted, §
1983 was modeled on the precursor of § 242, with differences of
coverage not material here. See Cong.Globe, 42d Cong., 1st
Sess., App. 68 (remarks of Rep. Shellabarger). Apart from the
inclusion of the word "willfully" in § 242, see Monroe v. Pape,
supra, at 365 U. S. 187 ,
the linguistic differences mentioned here have not been thought to
be substantive. See, e.g.,id. at 365 U. S. 185 ; id. at 365 U. S.
212 -213, n. 18 (opinion of Frankfurter, J.); United
States v. Price, supra, at 383 U. S. 794 n. 7.

															[ Footnote 3/24 ] See 398
U.S. 144 fn3/15|>n. 15 supra. [ Footnote 3/25 ]

															The legislative history concerning the precise congressional
understanding of "custom or usage" is inconclusive. At least four
possible interpretations were suggested. Representative Blair, an
opponent of the bill, argued that § 1983 operated only against
state legislation, and, as such, would be a nullity. See Cong.Globe, 42d Cong., 1st Sess., App. 209; see also id. at App. 268 (remarks of Rep. Sloss, an opponent). Our cases
squarely reject any such limited construction of § 1983. See,
e.g., Monroe v. Pape, supra. A second view was that § 1983
reached deprivations of constitutional rights under "color of law." See, e.g., id. at App. 68 (remarks of Rep. Shellabarger); id. at 568 (remarks of Sen. Edmunds); but see id. at 697-698 (remarks of Sen. Edmunds). Since Representative
Shellabarger and Senator Edmunds were the managers of the bill,
their commentary would ordinarily be entitled to great weight; but
at no point did either explain what he meant by "color of law."
Representative Kerr, an opponent, employed the formula "color of
state laws," but predicted that § 1983 would give rise to a flood
of litigation involving all types of injury to person or property. See id. at App. 50. A third view was reflected in the
comment of Senator Thurman, an opponent, who said in passing that §
1983 "refers to a deprivation under color of law, either statute
law or custom or usage' which has become common law." Id. at App. 217. There is little or no further support in
the debate for this reading of the statute, though it apparently
was adopted without discussion by Mr. Justice Frankfurter, see
Monroe v. Pape, supra, at 365 U. S. 246 (opinion of Frankfurter, J.). The precise meaning of Senator
Thurman's formula is unclear. He may have been referring to customs
that had been expressly recognized and approved by state courts, or
he may have had in mind the ancient principle that a general custom
as such "is really a part of the common law itself." Louisville
& Nashville R. Co. v. Reverman, 243 Ky. 702, 707, 49
S.W.2d 558, 560 (1932). See 1 W. Blackstone, Commentaries
**68-74. Moreover, Senator Thurman joined several others in taking
a fourth position: that § 1983 reaches private persons. See
id. at App. 216-217 (remarks of Sen. Thurman); id. at
App. 215 (remarks of Sen. Johnston, an opponent); id. at
429 (remarks of Rep. McHenry, an opponent); id. at 395
(remarks of Rep. Rice, an opponent); cf. id. at 804
(remarks of Rep. Poland, a supporter and conferee). Other speeches
during the debate and consideration of the purposes of the statute
make it clear that Congress did not intend to reach every private
interference with a constitutional right. See infra at 398 U. S.
219 -220. Finally, two members of the House expressed a
view compatible with any of the preceding positions: they thought
the principal effect of § 1983 was to remove the possible defense
that the defendant acted under state authority. See id. at
416 (remarks of Rep. Biggs, an opponent); id. at App. 310
(remarks of Rep. Maynard, a supporter). Section 1983 was patterned after § 2 of the Civil Rights Act of
1866, 14 Stat. 27. See Cong.Globe, 42d Cong., 1st Sess.,
App. 68 (remarks of Rep. Shellabarger). The legislative history of
the latter section is no more enlightening on the precise meaning
of "under color of any law, statute, ordinance, regulation, or
custom" than are the comments on the similar language in § 1983. See Cong.Globe, 39th Cong., 1st Sess., 1680 (veto message
of President Johnson); id. at 1120 (remarks of Rep. Loan,
a supporter, and Rep. J. Wilson, a manager); id. at 1778
(remarks of Sen. Johnson, an opponent); id. at 1785
(remarks of Sen. Stewart, a supporter); id. at 475, 500,
1758 (remarks of Sen. Trumbull, a manager).

															Similar language appeared in § 8 of the Freedmen's Bureau bill,
which was also debated at the first session of the 39th Congress.
In addition, the word "custom" appeared in § 7 of the bill. See
id. at 209. However, the precise language of both sections
received virtually no attention during debate. There was, though,
some indication that custom was recognized as different from law. See id. at 318 (remarks of Sen. Hendricks, an opponent). See also 398
U.S. 144 fn3/29|>n. 29, infra. [ Footnote 3/26 ] See generally R. Harris, The Quest for Equality 44-50
(1960).

															[ Footnote 3/27 ]

															I consider the narrow construction given to § 1985 in Collins v. Hardyman, 341 U. S. 651 (1951), as no longer binding. See supra at 398 U. S.
206 -210.

															[ Footnote 3/28 ]

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

															[ Footnote 3/29 ]

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

															[ Footnote 3/30 ]

															In Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 423 n. 30, the Court noted that the same session of Congress that
passed the Civil Rights Act of 1866 also passed a Freedmen's Bureau
bill, § 7 of which extended military jurisdiction over parts of the
South where,

															"in consequence of any State or local law, ordinance, police, or
other regulation, custom, or prejudice, any of the civil rights . .
. belonging to white persons . . . are refused or denied to
[N]egroes . . . on account of race, color, or any previous
condition of slavery or involuntary servitude. . . ." See Cong.Globe, 39th Cong., 1st Sess., 209 318. The
Court pointed out that, although the bill was vetoed by President
Johnson, it

															"was nonetheless significant for its recognition that the 'right
to purchase [property]' was a right that could be 'refused or
denied' by 'custom or prejudice' as well as by 'state or local
law.'"

															The Court also observed:

															"Of course, an "abrogation of civil rights made in
consequence of . . . custom, or prejudice' might as easily be
perpetrated by private individuals or by unofficial community
activity as by state officers armed with statute or
ordinance."" [ Footnote 3/31 ]

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

															[ Footnote 3/32 ] Texas v. White was overruled on an unrelated issue in Morgan v. United States, 113 U. S. 476 , 113 U. S. 496 (1885). Thereafter, it was quoted approvingly on the meaning of
"State" in McPherson v. Blacker, 146 U. S.
1 , 146 U. S. 25 (1892).

															[ Footnote 3/33 ]

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

															[ Footnote 3/34 ]

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