RESPONDENT: North Carolina
LOCATION: Formerly S. H. Kress and Co.
DOCKET NO.: 11
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: North Carolina Supreme Court
CITATION: 373 US 375 (1963)
ARGUED: Nov 05, 1962
DECIDED: May 20, 1963
GRANTED: Jun 25, 1962
Archibald Cox - Solicitor General, Department of Justice, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal.
Jack Greenberg - for the petitioners
Ralph Moody - Assistant Attorney General of North Carolina, for the respondent
Facts of the case
S. H. Kress and Company operated a general variety store on Main Street in Durham, North Carolina. On the first floor, Kress had a stand-up counter where it served food and drinks to both black and white customers. On the basement floor, however, Kress operated a luncheonette department with signs posted stating that it was for employees and invited guests only.
On May 6, 1960, seven students tried to seat themselves at the luncheonette counter. Five, including John Thomas Avent, were black students at North Carolina College for Negroes in Durham. The other two were white students at Duke University. All seven were involved with civil rights student organizations to varying degrees. Before each sat down, the store’s manager W. K. Boger spoke with the students individually. He told them that the luncheonette department was for employees and invited guests only, and asked them to leave. Both white students, however, were only asked to leave when it became clear they were sitting with one or more black customers. When the students refused to leave, Boger called an officer of the Durham police department, who arrested the students and charged them with trespassing.
At trial, Boger testified that it was Kress’ policy to refuse service to black customers at the luncheonette department, and to refuse service to white people in the company of black people. The district court convicted all seven defendants of trespassing. On appeal, the North Carolina Supreme Court affirmed the ruling. Noting that North Carolina had no laws mandating the separation of white and black customers in restaurants, the court upheld proprietors’ common law right to exclude individuals on the basis of race.
Does the Fourteenth Amendment prohibit a white operator of a diner from barring black customers from a “whites only” section of the store?
Media for Avent v. North Carolina
Audio Transcription for Oral Argument - November 05, 1962 in Avent v. North Carolina
From the calendar, John Thomas Avent, et al., Petitioners, versus North Carolina.
May it please the Court.
This case is here on writ of certiorari to the Supreme Court of North Carolina and presents principally a well-defined and circumscribed issue and that is whether in the particular legal and factual context of these sit-in demonstrations the arrest, conviction and sentence to prison of students, or the petitioners here, denied to them equal protection of the law secured by the Fourteenth Amendment and whether these judgments of conviction should be reversed.
At the outset, before stating the facts and elaborating their legal argument, petitioners would like briefly to outline the principle elements of this case which as we stated circumscribe and define the issues here and those elements are that in this case we have first of all state action in the form of an arrest, trial, conviction and unless these convictions are reversed an actual sentence to prison.
John M. Harlan II:
What was the sentence?
Three of the petitioners got 30 days, two of them got 20 days and one of them received 15 days.
And two of them, the young ladies involved, the prayer for judgment was suspended.
Secondly, this state action enforced racial discrimination.
Thirdly, in this case, there has been conceded by the State to exist in North Carolina a statewide custom of racial segregation and we submit this custom has been fostered and infused by a complex network of state segregation laws, including an ordinance of the City of Durham requiring racial segregation in restaurant facilities.
Arthur J. Goldberg:
Mr. Greenberg, was that ordinance ever mentioned in the trial below?
No, it was not, Your Honor and we plan to discuss some of the problems and issues that that may present.
Fourth, the State trial conviction and so forth that I've mentioned protected and asserted property right of Kress' Dime Store.
And this so-called property right upon analysis turns out only to be an asserted right to exclude Negroes and their white companions from a single unseverable portion of an establishment open to the general public in which these very petitioners were welcome to trade except at that particular counter while being seated.
Fifth, the premises in question were extensively licensed and regulated by the State with respect to its service of the public.
And finally, the State of North Carolina contrary to the assumptions made by this Court in the Civil Rights cases does not protect persons against racial discrimination in the premises in question.
Petitioners submit that these very well defined considerations typical to a very substantial extent of almost all of the sit-in cases to find the issues presented to this Court in a way which makes unnecessary for a decision any of the great variety of hypothetical cases imagined by legal writers and opposing counsel.
This case therefore does not involve state enforced racial segregation in private homes or country clubs.
It doesn't involve discrimination against persons because they may be redheads or personally disliked, personal enemies nor does it involve the extent to which the Fourteenth Amendment applies to the law of trusts in the States and so forth and so on.
Such hypothetical cases would call into play countervailing constitutional consideration such as rights of privacy and so forth none of which are involved in the case now at bar.
This case involves only the combination of the legal and factual circumstances of this type of sit-in which I said is typical of virtually all the sit-in cases not only here but throughout the country.
This connection --
John M. Harlan II:
How many sit-in cases did you happen to know?
How many sit-in cases?
I was --
John M. Harlan II:
There are I think 15 or 16 cases in this Court at this time and I was about to say I particularly checked North Carolina because I thought the question might arise.
There are approximately 162 cases pending in North Carolina in seven different jurisdictions in various stages of trial and appeal, all of which have been stayed by stipulation awaiting the outcome of this case.
And similar stipulations, though I don't have a count, have been made in other jurisdictions, other states awaiting the outcome of these cases.