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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1121

1964]     STATE CIVIL RIGHTS STATUTES     1121

   In considering the validity of state antidiscrimination legislation from this point of view, two problems must therefore be considered. First, is the aspect of commerce regulated by such statutes within the exclusive jurisdiction of the federal government, or do the states have concurrent jurisdiction in this area? Second, if the states do have concurrent jurisdiction, has Congress expressly or impliedly pre-empted the field and thus barred state and local laws in the same area?
   It would seem clear that in absence of a discernible federal policy to the contrary, there is concurrent federal and state jurisdiction to prohibit discrimination in businesses affecting interstate commerce. In Colorado Anti-Discrimination Comm'n v. Continental Air Lines,176 the Commission found that in violation of the laws of Colorado an interstate airline had refused to hire a pilot because of his race. As a result, this state agency ordered the airline to give fair consideration to the complainant's application for such employment. The Colorado courts set the order aside on the ground that it would be an undue burden on interstate commerce to apply a state antidiscrimination law to an interstate carrier.
The Supreme Court of the United States reversed the Colorado courts. It pointed out that it was no longer constitutionally permissible for state laws to require segregation or discrimination by any business. As a result, there was no danger that conflicting state laws in this area would burden interstate commerce. Consequently, the Court held that the application of the Colorado statute "to prevent discrimination in hiring on account of race does not impose a constitutionally prohibited burden upon interstate commerce."177
   Also demonstrative of the states' concurrent power to bar discrimination in businesses affecting interstate or foreign commerce is the case of Bob-Lo Excursion Co. v. Michigan.178 In that suit the Supreme Court of the United States upheld the power of Michigan to bar a vessel plying between a port in Michigan and a pleasure resort in Canada from discriminating among passengers on the basis of their race. In doing so, the Court noted:

It is difficult to imagine what national interest or policy, whether of securing uniformity in regulating commerce ... or otherwise, could reasonably be found to be adversely affected by applying Michigan's statute to these facts or to outweigh her interest in doing so. Certainly there is no national interest which overrides the interest of Michigan to forbid the type of discrimination practiced here. And, in view of these facts, the ruling would be strange indeed, to come from this Court, that 
________________________

176 372 U.S. 714 (1963).
177 Id. at 722.
178 333 U.S. 28 (1948).

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1964] STATE CIVIL RIGHTS STATUTES 1121 In considering the validity of state antidiscrimination legislation from this point of view, two problems must therefore be considered. First, is the aspect of commerce regulated by such statutes within the exclusive jurisdiction of the federal government, or do the states have concurrent jurisdiction in this area? Second, if the states do have concurrent jurisdiction, has Congress expressly or impliedly pre-empted the field and thus barred state and local laws in the same area? It would seem clear that in absence of a discernible federal policy to the contrary, there is concurrent federal and state jurisdiction to prohibit discrimination in businesses affecting interstate commerce. In Colorado Anti-Discrimination Comm'n v. Continental Air Lines,176 the Commission found that in violation of the laws of Colorado an interstate airline had refused to hire a pilot because of his race. As a result, this state agency ordered the airline to give fair consideration to the complainant's application for such employment. The Colorado courts set the order aside on the ground that it would be an undue burden on interstate commerce to apply a state antidiscrimination law to an interstate carrier. The Supreme Court of the United States reversed the Colorado courts. It pointed out that it was no longer constitutionally permissible for state laws to require segregation or discrimination by any business. As a result, there was no danger that conflicting state laws in this area would burden interstate commerce. Consequently, the Court held that the application of the Colorado statute "to prevent discrimination in hiring on account of race does not impose a constitutionally prohibited burden upon interstate commerce."177 Also demonstrative of the states' concurrent power to bar discrimination in businesses affecting interstate or foreign commerce is the case of Bob-Lo Excursion Co. v. Michigan.178 In that suit the Supreme Court of the United States upheld the power of Michigan to bar a vessel plying between a port in Michigan and a pleasure resort in Canada from discriminating among passengers on the basis of their race. In doing so, the Court noted: It is difficult to imagine what national interest or policy, whether of securing uniformity in regulating commerce ... or otherwise, could reasonably be found to be adversely affected by applying Michigan's statute to these facts or to outweigh her interest in doing so. Certainly there is no national interest which overrides the interest of Michigan to forbid the type of discrimination practiced here. And, in view of these facts, the ruling would be strange indeed, to come from this Court, that ________________________ 176 372 U.S. 714 (1963). 177 Id. at 722. 178 333 U.S. 28 (1948).