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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1126

1126     IOWA LAW REVIEW     [Vol. 49

to section 368.2 is the correct one it will no longer be necessary to point to a specific statutory grant for any particular exercise of local authority. The primary considerations will then be whether the local ordinance regulates a matter that is deemed "local and internal," and whether the local regulation has been pre-empted or specifically barred by state action.
   Prior discussion demonstrates that whether the 1963 amendment to section 368.2 is deemed a grant of substantive powers or a rule of construction, the relevant inquiry for our purposes here remains the same. Iowa cities and towns can adopt the kinds of legislation proposed by this Article of such legislation concerns their "strictly local and internal affairs," and has not been pre-empted or otherwise barred by the General Assembly. For convenience, the second issue will be dealt with first.
   No statute specifically bars our cities and towns from legislating in respect to discrimination. Consequently, the relevant question must be whether the General Assembly has so comprehensively dealt with discrimination by the public accommodations and fair employment statutes "as to have entirely occupied the field of its subject." This question is obviously an open one.195 No judicial decision purports to settle the issue.
   Discrimination has traditionally been deemed a divisible subject, capable of piecemeal resolution.196 For this reason, the legislative approach to it has uniformly been to bar denials of equal opportunity area by area, one at a time. Consequently, acts barring discrimination in public accommodations were the first to appear both in Iowa and elsewhere.197 The next kind of antidiscrimination laws enacted in point of time were fair employment practices acts.198 Having enacted its public accommodations law in 1884, Iowa moved on to bar discrimination in employment in 1963. So far, the General  Assembly has been silent with regard to discrimination in housing. At present, our legislature has therefore dealt in some manner with two of the three or more divisibly recognizable areas in which discrimination has been deemed a particularly vicious evil.
   Because of the all-embracive nature of the new Iowa employment statute which prohibits any employer whatsoever from discriminating on account of race or religion in employment, it can be persuasively argued that the field of discrimination in employment has been "en-
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195 See Note, 49 IOWA L. REV. 826 (1964).
196 That discrimination has been considered a divisible subject is clear. See KONVITZ & LESKES, A CENTURY OF CIVIL RIGHTS 155-251 (1961).
197 KONVITZ & LESKES, op. cit. supra note 196, at 155-57.
198 See KONVITZ & LESKES, op. cit. supra note 196, at 197-203.

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1126 IOWA LAW REVIEW [Vol. 49 to section 368.2 is the correct one it will no longer be necessary to point to a specific statutory grant for any particular exercise of local authority. The primary considerations will then be whether the local ordinance regulates a matter that is deemed "local and internal," and whether the local regulation has been pre-empted or specifically barred by state action. Prior discussion demonstrates that whether the 1963 amendment to section 368.2 is deemed a grant of substantive powers or a rule of construction, the relevant inquiry for our purposes here remains the same. Iowa cities and towns can adopt the kinds of legislation proposed by this Article of such legislation concerns their "strictly local and internal affairs," and has not been pre-empted or otherwise barred by the General Assembly. For convenience, the second issue will be dealt with first. No statute specifically bars our cities and towns from legislating in respect to discrimination. Consequently, the relevant question must be whether the General Assembly has so comprehensively dealt with discrimination by the public accommodations and fair employment statutes "as to have entirely occupied the field of its subject." This question is obviously an open one.195 No judicial decision purports to settle the issue. Discrimination has traditionally been deemed a divisible subject, capable of piecemeal resolution.196 For this reason, the legislative approach to it has uniformly been to bar denials of equal opportunity area by area, one at a time. Consequently, acts barring discrimination in public accommodations were the first to appear both in Iowa and elsewhere.197 The next kind of antidiscrimination laws enacted in point of time were fair employment practices acts.198 Having enacted its public accommodations law in 1884, Iowa moved on to bar discrimination in employment in 1963. So far, the General Assembly has been silent with regard to discrimination in housing. At present, our legislature has therefore dealt in some manner with two of the three or more divisibly recognizable areas in which discrimination has been deemed a particularly vicious evil. Because of the all-embracive nature of the new Iowa employment statute which prohibits any employer whatsoever from discriminating on account of race or religion in employment, it can be persuasively argued that the field of discrimination in employment has been "en- ________________________ 195 See Note, 49 IOWA L. REV. 826 (1964). 196 That discrimination has been considered a divisible subject is clear. See KONVITZ & LESKES, A CENTURY OF CIVIL RIGHTS 155-251 (1961). 197 KONVITZ & LESKES, op. cit. supra note 196, at 155-57. 198 See KONVITZ & LESKES, op. cit. supra note 196, at 197-203.