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13 Buff. L. Rev. 402 (1963-1964)
Role of Law in Regulating Discrimination in Places of Public Accommodation, The

handle is hein.journals/buflr13 and id is 420 raw text is: THE ROLE OF LAW IN REGULATING DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION* THoms P. LEwis** I N A discussion of the role of law in regulating discrimination in places of public accommodation, early definition of public accommodations is im- portant but not uncomplicated. To say that the phrase describes establishments offering goods, services, or accommodations to the general public surely uncovers the central area of concern, but it may mislead because the law may have a proper role in determining the kinds of establishments which do not, but should, offer their product to the general public. This problem is further complicated by the fact that an establishment's past practices may be relevant in determining the role the law should play in regulating the establishment. For example, proof that an organization functions as a private club may be crucial in determining that it can or should be allowed to continue its restricted operation. But other factors, for example the location of the private club in a state park, may lead to the determination that the club should or must become a public accom- modation as defined above. The troublesome concept of state action pervades the subject of the federal law's role in dealing with discrimination in places of public accommodations. It is partly because of the fluidity of this concept that there will be interaction between definition of public accommodations and the tracing out of the law's role. Because the equal protection clause has to some extent predetermined the role of the law in regulating racial discrimination, it is necessary to distinguish between public accommodations privately owned and operated without extraordinary governmental support, and those governmentally owned or supported. This distinction has relevance for the Supreme Court as it determines its role in applying the fourteenth amendment. It is also important to other agencies of government because different intensities of conflicting inter- ests are reflected by the two types of accommodations. It will be convenient to divide the discussion below into two parts which recognize this distinction. Another important interaction is between means and ends. In our country we cannot speak of the law without thinking about its source. Assertions about the role of the law may concern federal law or state law, and within either of these major heads, an author may further qualify his remarks by limiting them to law with its primary source or impetus in the judicial, legislative or executive branches of government. The state action concept again may have an important bearing in determining the qualifications which should surround an assertion about the law's role. There will be wider areas of agreement about the role which state law ought to play than on the role which federal law should play. * This paper, along with the Comments appearing at pages 439 and 443, was presented at a conference on discrimination and the law at the University of Chicago Law School on November 22-23, 1963. The conference was jointly sponsored by the Anti-Defamation League of B'nai B'rith and the University of Chicago Law School. ** Professor of Law, University of Kentucky; Visiting Professor of Law, University of Washington. A.B. 1959, LL.B. 1954, University of Kentucky.

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