398 U.S. 144, 152 (1970)
Sandra Adickes, a white school teacher from New York, was working as a volunteer teacher at a Freedom School for Negro children in Hattiesburg, Mississippi, during the summer of 1964.1 On August 14, 1964, Adickes went with six of her Negro students to the Hattiesburg Public Library, where the librarian refused to allow the students to use the library and summoned the chief of police, who ordered the group to leave.2 The group then went to the S. H. Kress & Co. store in Hattiesburg to have lunch.3 Adickes filed suit against Kress in the United States District Court for the Southern District of New York seeking damages under 42 U.S.C. § 1983.4
After the group sat down at the lunch counter, a policeman entered the store and observed them.5 A waitress took the orders of the Negro students but refused to serve Adickes on the ground that she was a white person in the company of Negroes.6 The group left the store without being served.7 As they reached the sidewalk, the same policeman arrested Adickes on a vagrancy charge.8
The vagrancy charge against Adickes was subsequently changed, and she was tried and acquitted.9 Her complaint contained two counts under § 1983.10 One count alleged that Kress had refused her service pursuant to a custom of the community to segregate the races in public eating places that was enforced by the State.11 The other count alleged that the refusal of service and the arrest were the product of a conspiracy between Kress employees and the Hattiesburg police.12
Kress moved for summary judgment on the conspiracy count and submitted depositions from the store manager, the waitress, and the arresting officers, along with affidavits from police officials, all denying any agreement or communication with the police about refusing service or making the arrest.13 Adickes opposed the motion by pointing to her deposition statement and an unsworn statement from a Kress employee indicating that a policeman had been in the store at the time of the refusal.14 The District Court granted summary judgment on the conspiracy count, holding that Adickes had failed to allege facts from which a conspiracy might be inferred.15 After a trial on the custom count, the District Court directed a verdict for Kress because Adickes had not proved other instances of whites being refused service while in the company of Negroes.16
The Court of Appeals for the Second Circuit affirmed the District Court's rulings on both counts.17 The Supreme Court granted certiorari to review the case.18
Whether the District Court erred in granting summary judgment on the conspiracy count of the complaint?19
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be rendered if 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 and that the moving party is entitled to a judgment as a matter of law.20 The moving party bears the burden of demonstrating the absence of any genuine issue of material fact.21 All inferences must be drawn in favor of the non-moving party.22
Yes. Kress supported its motion with depositions from the store manager, waitress, and arresting officers denying any communication or agreement with the police. These materials left open the possibility that a policeman was present in the store at the time of the refusal of service and reached an understanding with Kress employees.23 Adickes pointed to her deposition and an unsworn employee statement indicating a policeman's presence.
The sequence of events following the refusal permitted a jury to infer a meeting of the minds between Kress and the police.24
The District Court erred in granting summary judgment on the conspiracy count because Kress failed to carry its initial burden under Rule 56(c).25
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Justice Black agreed that the case should be remanded for trial on the conspiracy count but disagreed with the majority's interpretation of Rule 56.26 He maintained that the moving party need only support its motion with depositions and that the non-moving party must then come forward with specific facts showing a genuine issue for trial.27 Adickes relied solely on pleadings and unsworn statements, which Black viewed as insufficient to defeat summary judgment.
Black would have held that Kress met its burden and that the District Court properly granted summary judgment on the conspiracy claim while remanding for trial on the custom claim.28
Whether the District Court erred in directing a verdict on the substantive count alleging a state-enforced custom of racial segregation?29
To recover under 42 U.S.C. § 1983 on a claim of racial discrimination in violation of the Equal Protection Clause, a plaintiff must prove that the defendant acted under color of a state-enforced custom requiring segregation.30 The plaintiff must also prove that the refusal of service was motivated by that custom.31 A custom has the force of law when it is so permanent and well settled as to constitute a custom or usage with the force of law by virtue of persistent practices of state officials.32
Yes. Adickes presented evidence that a policeman entered the store, observed the integrated group, and later arrested her on a baseless vagrancy charge.33 This evidence supported an inference that the refusal of service occurred pursuant to a state-enforced custom of segregation in Hattiesburg restaurants.34 The District Court wrongly required proof of other specific instances of whites refused service with Negroes.35 It also wrongly required proof of the custom throughout Mississippi rather than in Hattiesburg.36
The District Court erred in directing a verdict on the substantive count because Adickes was entitled to a new trial on whether Kress refused her service because of a state-enforced custom of segregation.37
Related opinions on this issue
Justice Brennan joined the majority on the conspiracy count but wrote separately to emphasize that Mississippi statutes, including the trespass provision, authorized and encouraged private racial discrimination in restaurants.38 He argued that the mere existence of such statutes rendered respondent's discrimination state action regardless of whether the specific statute directly compelled the refusal.39 Petitioner need only show racial motivation to satisfy the state-action requirement.
Brennan detailed how the 1956 trespass statute altered the common law and formed part of a broader statutory scheme responding to Brown v. Board of Education to maintain segregation.40
Whether a custom or usage for purposes of 42 U.S.C. § 1983 must have the force of law by virtue of persistent practices of state officials?41
A custom or usage for purposes of 42 U.S.C. § 1983 must have the force of law by virtue of the persistent practices of state officials. Congress included customs within the statute because systematic maladministration or neglect by state officials could deny equal protection even where written laws appeared neutral on their face.42
Yes. The legislative history of the 1871 Act and the Court's prior construction of identical language in the 1866 Act confirm that only conduct supported by state action qualifies.43 Adickes alleged a custom enforced by the Hattiesburg police through false arrest and tolerance of threats.44 This satisfied the requirement that the custom derive from official practices rather than private social habits alone.
A custom or usage under § 1983 must have the force of law through persistent state official practices.45
Related opinions on this issue
Justice Douglas dissented from the majority's narrow construction of custom under § 1983.46 He argued that the statute reaches deprivations under color of any custom of a State without requiring that the custom be enforced by state officials in the Hamiltonian sense of law.47 Douglas maintained that the dominant communal sentiment reflected in Mississippi's web of segregation statutes and practices sufficed to make the discrimination actionable even if not directly compelled by written law.48
He cited the extensive Mississippi statutes mandating segregation in schools, hospitals, jails, and other facilities as evidence of a pervasive custom with the force of law.49
Whether proof of a state-enforced custom of segregation in public restaurants must demonstrate both a specific practice of refusing service to whites accompanied by Negroes and that the custom existed throughout the state?50
Proof of a state-enforced custom of segregation requires only a showing of a longstanding and still prevailing practice of segregating the races in public eating places within Hattiesburg.51 It does not require proof of other specific instances of refusing service to whites with Negroes.52 It also does not require proof that the custom existed statewide.53
No. The District Court and Court of Appeals imposed an unduly narrow requirement by demanding evidence of multiple instances of whites refused service with Negroes.5455 They also demanded proof of the custom throughout Mississippi.56 Adickes could establish the custom by showing a settled practice of segregation in Hattiesburg restaurants that the police enforced.57 Such a showing would necessarily encompass the particular refusal she experienced.58
The lower courts erred by requiring proof of a specific practice of refusing service to whites with Negroes and proof of the custom throughout the entire state.59
Whether state enforcement of a custom of segregation can be shown by means other than application of the criminal trespass statute?60
State enforcement of a custom of segregation can be shown by any persistent official practice that gives the custom the force of law.61 This includes false arrest for vagrancy to harass those violating the custom.62 It also includes intentional tolerance of violence or threats against violators.63 Enforcement need not be limited to the criminal trespass statute.64
Yes. Adickes alleged that the Hattiesburg police enforced the custom by arresting her on a groundless vagrancy charge immediately after the refusal of service.65 This form of enforcement, along with possible tolerance of threats, provided an alternative means to demonstrate state involvement without reliance on the trespass statute.66
State enforcement of a segregation custom may be shown through means other than the criminal trespass statute, such as false arrest or tolerance of threats.67