US SUPREME COURT DECISIONS

Petitioner is a white school teacher who was refused service in respondent's lunchroom when she was accompanied by six Negro students, and who was arrested for vagrancy by the Hattiesburg, Mississippi, police when she left respondent's premises. She filed a complaint in the Federal District Court to recover damages alleging deprivation of her right under the Equal Protection Clause not to be discriminated against on the basis of race. The complaint had two counts, each based on 42 U.S.C. § 1983: (1) that she had been refused service because she was a "Caucasian in the company of Negroes" (under which she sought to prove that the refusal to serve her was pursuant to a "custom of the community to segregate races in public eating places") and (2) that the refusal of service and the arrest were the product of a conspiracy between respondent and the police (under which she alleged that the policeman who arrested her was in the store at the time of the refusal of service). The District Court ruled that, to recover under the first count, petitioner would have to prove a specific "custom of refusing service to whites who were in the company of Negroes" that was "enforced by the State" under its criminal trespass statute. The court directed a verdict for respondent on this count because petitioner failed to prove other instances of whites having been refused service while in company of Negroes in Hattiesburg. The Court of Appeals affirmed, holding that § 1983 requires the discriminatory custom be proved to exist in the locale where the discrimination took place and in the State generally, and that petitioner's proof was deficient on both points. The second count was dismissed before trial by the District Court on a motion for summary judgment, since petitioner "failed to allege any facts from which a conspiracy might be inferred." The Court of Appeals affirmed this determination.

Held:

1. The District Court, on the basis of this record, erred in granting summary judgment on the conspiracy count. Pp. 398 U. S. 149-161. chanrobles.com-red

Page 398 U. S. 145

(a) The involvement of a policeman, a state official, whether or not his actions were lawful or authorized, in the alleged conspiracy would plainly provide the state action needed to show a direct violation of petitioner's Fourteenth Amendment rights entitling her to relief under § 1983, and private persons involved in such a conspiracy are acting "under color" of law, and can be liable under § 1983. Pp. 398 U. S. 150-152.

(b) Respondent did not carry out its burden, as the party moving for summary judgment of showing the absence of a genuine issue as to any material fact, as it did not foreclose the possibility that there was a policeman in the store while the petitioner was awaiting service (from which the jury could infer an understanding between the officer and an employee of respondent that petitioner not be served), and its failure to meet that burden requires reversal. Pp. 398 U. S. 153-159.

(c) Because respondent failed to meet its initial burden as the party moving for summary judgment, petitioner was not required to come forward with suitable opposing affidavits under Fed.Rule Civ.Proc. 56(e). Pp. 398 U. S. 159-161.

2. Petitioner will have established a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by respondent because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. Pp. 398 U. S. 161-174.

(a) Based upon the language of the statute legislative history, and judicial decisions, the words "under color of a . . . custom or usage, of [a] State," in § 1983, mean that the "custom or usage" must have the force of law by virtue of the persistent practices of state officials. Pp. 398 U. S. 162-169.

(b) Petitioner would have shown an abridgment of her constitutional right of equal protection if she proved that respondent refused her service because of a state-enforced custom of racial segregation in public restaurants. Pp. 398 U. S. 169-171.

(c) The District Court erred in its implicit assumption that a custom can have the force of law only if it is enforced by a state statute. Pp. 398 U. S. 171-172.

(d) The District Court's ruling that proving a "custom" in this case required demonstrating a specific practice of not serving white persons in the company of Negroes in public restaurants was too narrow as the relevant inquiry is whether there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. P. 398 U. S. 173. chanrobles.com-red

Page 398 U. S. 146

(e) The courts below erred in suggesting that the custom must exist throughout the State, as a custom with the force of law in a political subdivision can offend the Fourteenth Amendment even though it lacks state-wide application. P. 398 U. S. 173.

409 F.2d 121, reversed and remanded.