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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1090

1090     IOWA LAW REVIEW     [Vol. 49

modations law was considered by the United States Supreme Court, it, too, treated the issue as no longer open. "And certainly so far as the ... Constitution is concerned there is no doubt that legislation which prohibits discrimination on the basis of race in the use of facilities serving a public function is within the public power of the states."90
   Similarly, laws prohibiting discrimination in the sale or rental of housing have also been found to be within the competence of the state's police power.91 Such statutes do not deprive regulated parties of their liberty or property without due process.92 One court has noted:

There are a number of possible findings which, in enacting the statute, the Legislature could have made in the legitimate exercise of the police power .... [Among them are]: 1) Discrimination in ... housing might tend to restrict Negroes to a relatively small area and perhaps to encourage slum conditions through density of population. ... 2) Housing discrimination could impede the relocation of families affected by urban redevelopment programs. ... 3) There might be a shortage in housing from which Negroes could suffer more than other groups.93
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N.W. 231 (1909); Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718 (1890); Messenger v. State, 25 Neb. 674, 41 N.W. 638 (1889). See also Western Turf Ass'n v. Greenberg, 204 U.S. 359 (1907); Public Accommodations Hearings 1381-83 (citing cases); KNOVITZ & LESKES, A CENTURY OF CIVIL RIGHTS 172-77 (1961). Contra, Avins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 CORNELL L.Q. 228 (1964).
90 District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953).
91 See Burks v. Poppy Constr. Co., 57 Cal. 2d 463, 370 P2.d 313, 20 Cal. Rptr. 609 (1962); Swanson v. Comm'n on Civil Rights, (Super. Ct. Conn. 1961) No. 94802, Super. Ct. Conn., July 11, 1961; Massachusetts Comm'n Against Discrimination v. Colangelo, 344 Mass. 387, 182 N.E.2d 595 (1962); Jones v. Haridor Realty Corp., 37 N.J. 384, 181 A.2d 481 (1962); Martin v. City of New York, 22 Misc. 2d 389, 201 N.Y.S.2d 111 (Sup. Ct. 1960); New York State Comm'n Against Discrimination v. Pelham Hall Apartments, 10 Misc. 2d 334, 170 N.Y.S.2d 750 (1958); Stanto Land Co. v. Pittsburgh, 32 U.S.L. WEEK 2314 (Pa. C.P. 1963); see The Courts and Anti-Bias Housing Laws, Trend sin Housing, Sept.-Oct. 1963, p. 6, for a survey of the court rulings on the subject.
92 See sources cited note 91 supra. Commentators agreeing that fair housing laws are constitutional and within the state police powers are as follows: KONVITZ & LESKES, op. cit. supra note 89, 242-51; Kozol, The Massachusetts Fair Housing Practices Law, 47 MASS. L.Q. 295 (1962); McGhee & Ginger, The House I Live In, 46 CORNELL L.Q. 194, 228-36 (1961); Robinson, Housing--The Northern Civil Rights Frontier, 13 W. RES. L. REV. 101, 121-24 (1961); Ross & Freedman, The Constitutionality of a Bill Prohibiting Discrimination in Housing, 18 LAW. GUILD REV. 30 (1958); Saks & Rabkin, Racial and Religious Discrimination in Housing: A Report of Legal Process, 45 IOWA L. REV. 488, 513-23 (1960); Note, 28 GEO. WASH. L. REV. 748, 778 (1960); Note, 74 HARV. L. REV. 526, 586-88 (1961); Note, Racial Discrimination in Housing, 107 U. PA. L. REV. 515, 525-30 (1959; Note, 12 RUTGERS L. REV, 557, 558-67 (1958); Note, 45 VA. L. REV. 428 (1959); Comment, 26 FORDHAM L. REV. 675, 677-80 (1958); Comment, 56 MICH. L. REV. 1223 (1958). Contra, AVINS, OPEN OCCUPANCY VS. FORCED HOUSING UNDER THE FOURTEENTH AMENDMENT (1963).
93 Massachusetts Comm'n Against Discrimination v. Colangelo, 344 Mass. 387, 394, 182 N.E.2d 595, 599-600 (1962).

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1090 IOWA LAW REVIEW [Vol. 49 modations law was considered by the United States Supreme Court, it, too, treated the issue as no longer open. "And certainly so far as the ... Constitution is concerned there is no doubt that legislation which prohibits discrimination on the basis of race in the use of facilities serving a public function is within the public power of the states."90 Similarly, laws prohibiting discrimination in the sale or rental of housing have also been found to be within the competence of the state's police power.91 Such statutes do not deprive regulated parties of their liberty or property without due process.92 One court has noted: There are a number of possible findings which, in enacting the statute, the Legislature could have made in the legitimate exercise of the police power .... [Among them are]: 1) Discrimination in ... housing might tend to restrict Negroes to a relatively small area and perhaps to encourage slum conditions through density of population. ... 2) Housing discrimination could impede the relocation of families affected by urban redevelopment programs. ... 3) There might be a shortage in housing from which Negroes could suffer more than other groups.93 _________________________ N.W. 231 (1909); Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718 (1890); Messenger v. State, 25 Neb. 674, 41 N.W. 638 (1889). See also Western Turf Ass'n v. Greenberg, 204 U.S. 359 (1907); Public Accommodations Hearings 1381-83 (citing cases); KNOVITZ & LESKES, A CENTURY OF CIVIL RIGHTS 172-77 (1961). Contra, Avins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 CORNELL L.Q. 228 (1964). 90 District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953). 91 See Burks v. Poppy Constr. Co., 57 Cal. 2d 463, 370 P2.d 313, 20 Cal. Rptr. 609 (1962); Swanson v. Comm'n on Civil Rights, (Super. Ct. Conn. 1961) No. 94802, Super. Ct. Conn., July 11, 1961; Massachusetts Comm'n Against Discrimination v. Colangelo, 344 Mass. 387, 182 N.E.2d 595 (1962); Jones v. Haridor Realty Corp., 37 N.J. 384, 181 A.2d 481 (1962); Martin v. City of New York, 22 Misc. 2d 389, 201 N.Y.S.2d 111 (Sup. Ct. 1960); New York State Comm'n Against Discrimination v. Pelham Hall Apartments, 10 Misc. 2d 334, 170 N.Y.S.2d 750 (1958); Stanto Land Co. v. Pittsburgh, 32 U.S.L. WEEK 2314 (Pa. C.P. 1963); see The Courts and Anti-Bias Housing Laws, Trend sin Housing, Sept.-Oct. 1963, p. 6, for a survey of the court rulings on the subject. 92 See sources cited note 91 supra. Commentators agreeing that fair housing laws are constitutional and within the state police powers are as follows: KONVITZ & LESKES, op. cit. supra note 89, 242-51; Kozol, The Massachusetts Fair Housing Practices Law, 47 MASS. L.Q. 295 (1962); McGhee & Ginger, The House I Live In, 46 CORNELL L.Q. 194, 228-36 (1961); Robinson, Housing--The Northern Civil Rights Frontier, 13 W. RES. L. REV. 101, 121-24 (1961); Ross & Freedman, The Constitutionality of a Bill Prohibiting Discrimination in Housing, 18 LAW. GUILD REV. 30 (1958); Saks & Rabkin, Racial and Religious Discrimination in Housing: A Report of Legal Process, 45 IOWA L. REV. 488, 513-23 (1960); Note, 28 GEO. WASH. L. REV. 748, 778 (1960); Note, 74 HARV. L. REV. 526, 586-88 (1961); Note, Racial Discrimination in Housing, 107 U. PA. L. REV. 515, 525-30 (1959; Note, 12 RUTGERS L. REV, 557, 558-67 (1958); Note, 45 VA. L. REV. 428 (1959); Comment, 26 FORDHAM L. REV. 675, 677-80 (1958); Comment, 56 MICH. L. REV. 1223 (1958). Contra, AVINS, OPEN OCCUPANCY VS. FORCED HOUSING UNDER THE FOURTEENTH AMENDMENT (1963). 93 Massachusetts Comm'n Against Discrimination v. Colangelo, 344 Mass. 387, 394, 182 N.E.2d 595, 599-600 (1962).