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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1077

1964]     STATE CIVIL RIGHTS STATUTES     1077

   It should also be noted that while it is happily the exception rather than the rule,t here are business establishments in this state which serve the public generally but are not open to Negroes. While the 1961 report of the Iowa Advisory Committee to the United States Civil Rights commission indicates that the umber of such places is declining,45 it is still a fact that nonwhites are denied equal access to some Iowa business establishments that otherwise cater to the public generally.
     It is readily apparent t hat the previous generalizations about the plight of Negroes and other nonwhites in this country, including Iowa, raise significant questions of public policy. Foremost among them is the extent to which our governments should assure the members of minority racial, religious, and ethnic groups an equal opportunity to obtain such privately controlled essentials as employment, housing, and access to public accommodations. Limitations on governmental action to assure that it treats the members of such minority groups impartially, and without discrimination, are already established in law by the fourteenth amendment's injunction that no state shall "deny to any person within its jurisdiction the equal protection of the laws."46 The national constitution itself, therefore, provides a legally enforceable bar to governmental participation in denials of equal opportunity to Negroes and other minority racial, religious, or ethnic groups.47
     In the absence of statute,48 however, there are few legally enforceable limitations on the ability of privately owned and operated businesses
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An additional 12% refused to be interviewed. Iowa City Press-Citizen, Nov.8, 1963, p.1., col. 2. See also Des Moines Register, March 23, 1964, p.1, col. 1.
45 THE 50 STATES REPORT
46 Brown v. Board of Educ., 347 U.S. 483 (1954); Takahashi v. Fish and Game Comm'n, 334 U.S. 410 (1948); Sherbert v. Verner, 83 Sup. Ct. 1790 (1963), 49 IOWA L. REV. 952 (1964) (the first amendment as incorporated in fourteenth amendment's due-process clause also bars discrimination on basis of religion by any state or local governments). The fifth amendment to the United States Constitution has been authoritatively interpreted to present the same bar on actions by the United States. Bolling v. Sharpe, 347 U.S. 497 (1954).
47 What actions are considered to involve sufficient governmental participation to raise the fourteenth amendment's bar is properly a question of the limits of "state action." See Lewis, The Meaning of State Action, 60 COLUM. L. REV. 1083 *1960). It is enough to note at this point that the fourteenth amendment does not bar purely "private" as opposed to "governmental" restrictions on the opportunities of Negroes. But the recent sit-in cases may indicate a substantial dilution of this principle. See Lombard v. State, 373 U.S. 267 (1963); Peterson v. City of Greenville, 373 U.S. 244 (1963).
48 Or executive orders. See, for example, the recent executive orders issued by several state governors which bar discrimination by publicly licensed business establishments. Exec. Order, California (July 27, 1963); Exec. Order No. 36-485, Kentucky (1963); Exec. Order No.l 4-63, Indiana (1963).

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1964] STATE CIVIL RIGHTS STATUTES 1077 It should also be noted that while it is happily the exception rather than the rule,t here are business establishments in this state which serve the public generally but are not open to Negroes. While the 1961 report of the Iowa Advisory Committee to the United States Civil Rights commission indicates that the umber of such places is declining,45 it is still a fact that nonwhites are denied equal access to some Iowa business establishments that otherwise cater to the public generally. It is readily apparent t hat the previous generalizations about the plight of Negroes and other nonwhites in this country, including Iowa, raise significant questions of public policy. Foremost among them is the extent to which our governments should assure the members of minority racial, religious, and ethnic groups an equal opportunity to obtain such privately controlled essentials as employment, housing, and access to public accommodations. Limitations on governmental action to assure that it treats the members of such minority groups impartially, and without discrimination, are already established in law by the fourteenth amendment's injunction that no state shall "deny to any person within its jurisdiction the equal protection of the laws."46 The national constitution itself, therefore, provides a legally enforceable bar to governmental participation in denials of equal opportunity to Negroes and other minority racial, religious, or ethnic groups.47 In the absence of statute,48 however, there are few legally enforceable limitations on the ability of privately owned and operated businesses _________________________ An additional 12% refused to be interviewed. Iowa City Press-Citizen, Nov.8, 1963, p.1., col. 2. See also Des Moines Register, March 23, 1964, p.1, col. 1. 45 THE 50 STATES REPORT 46 Brown v. Board of Educ., 347 U.S. 483 (1954); Takahashi v. Fish and Game Comm'n, 334 U.S. 410 (1948); Sherbert v. Verner, 83 Sup. Ct. 1790 (1963), 49 IOWA L. REV. 952 (1964) (the first amendment as incorporated in fourteenth amendment's due-process clause also bars discrimination on basis of religion by any state or local governments). The fifth amendment to the United States Constitution has been authoritatively interpreted to present the same bar on actions by the United States. Bolling v. Sharpe, 347 U.S. 497 (1954). 47 What actions are considered to involve sufficient governmental participation to raise the fourteenth amendment's bar is properly a question of the limits of "state action." See Lewis, The Meaning of State Action, 60 COLUM. L. REV. 1083 *1960). It is enough to note at this point that the fourteenth amendment does not bar purely "private" as opposed to "governmental" restrictions on the opportunities of Negroes. But the recent sit-in cases may indicate a substantial dilution of this principle. See Lombard v. State, 373 U.S. 267 (1963); Peterson v. City of Greenville, 373 U.S. 244 (1963). 48 Or executive orders. See, for example, the recent executive orders issued by several state governors which bar discrimination by publicly licensed business establishments. Exec. Order, California (July 27, 1963); Exec. Order No. 36-485, Kentucky (1963); Exec. Order No.l 4-63, Indiana (1963).