Burton v. Wilmington Parking Authority (p. 1156)

 From Oyez:

Facts of the case

In August 1958 William H. Burton, an African American, entered the Eagle Coffee Shoppe, a restaurant leasing space within a parking garage operated by the Wilmington Parking Authority, and was denied service solely because of his race. The Parking Authority is a tax-exempt, private corporation created by legislative action of the City of Wilmington for the purpose of operating the city's parking facilities, and its construction projects are partially funded by contributions from the city. The Parking Authority provided the restaurant heating and gas services and maintained the premises at its own expense. Burton filed suit seeking an injunction preventing the restaurant from operating in a racially discriminatory manner on the ground that doing so violated the Equal Protection Clause of the Fourteenth Amendment. A state court granted the injunction but was reversed on appeal to the Delaware Supreme Court.

Question

Did the Eagle Coffee Shoppe's refusal to serve Burton constitute a violation of the Equal Protection Clause of the Fourteenth Amendment?

Conclusion

In a 6-3 decision authored by Justice Tom C. Clark, the Court concluded that the restaurant, as a recipient of assistance by the parking authority, benefited from the city's aid and constituted a financially integral and indispensable part of the state. As such, the Court found that the restaurant and the parking authority were so physically and financially intertwined that the private entity's conduct could be imputed to the government. Thus, it’s discrimination could be considered state action in violation of the Fourteenth Amendment.

Justice Potter Stewart concurred in the judgment. 

Justice Harlan, joined by Justice Whittaker, dissented. Justice Frankfurter wrote a separate dissenting opinion.

 

I think this case was strongly impacted by the fact that racial discrimination was occurring in a place of public accommodation located on real property owned by the State of Delaware and leased to the private restaurant.

If this case involved a restaurant who refused to serve a customer wearing a racist tee shirt, I doubt the Court would have found sufficient state action to trigger the Free Speech Clause in a suit brought by the customer rejected because of the message expressed by his tee shirt. The Court expressly noted that the State could have insisted on a clause in the lease requiring the lessee to serve all customers without regard to race. As Justice Clark said (p.1157): "By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has  elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized  as a joint participant in the challenged activity, which, on that account, cannot be considered to  have been so “purely  private” as to fall without the scope of the Fourteenth Amendment."

Chemerinsky on Burton: "The Supreme Court found that the government was so entangled with the restaurant that there was a "symbiotic relationship" sufficient to create state action. For example, the government had responsibility for upkeep and maintenance of the building and this was done with public funds. The parking facility was used by the restaurant's customers. At the same time, the government benefited from revenues from the restaurant and its customers."

Of course, all these factors are simply part of the landlord-tenant relationship. The landlord maintains the building and the tenant pays rent. The parking garage was open to all the public. So, it seems that if there was state action in this case, it was because the government leased space in a government building to a restaurant. 

Again, I ask if the restaurant refused service to a customer wearing a racist tee shirt, would there be state action sufficient to trigger the Free Speech Clause?