The Original Meaning of "Full and Equal Enjoyment" of Public Accommodations

Abstract

In this reply to Professor Suja Thomas's The Consumer Caste: Legal Discrimination by Public Businesses, I argue that the federal courts have defied the original meaning of Title II of the Civil Rights Act of 1964. Its language of "full and equal enjoyment" of public accommodations carried a fixed meaning in 1964 when Title II became law, due to the nation’s long experience with near-identical state civil rights laws. Looking to state court and commission decisions contemporaneous with or pre-dating the Civil Rights Act, I show that state courts interpreted statutes with the same operative provision to prohibit precisely the practices that the federal courts now permit. Before the Civil Rights Act, courts, commissions, and the public recognized that public accommodations law required both access and undifferentiated treatment. They took the perspective that equality required granting Black customers the same courtesies customarily extended to and expected by White customers. Moreover, decisionmakers did not defer to businesses’ justifications of poor treatment, but instead took a functionalist approach to public accommodations discrimination consistent with those statutes’ common law origins. This history provides a corrective to the federal court’s mistaken interpretation of public accommodations law. It provides context for “full and equal enjoyment” that a dictionary alone cannot. It also suggests alternative methods of analysis of discrimination claims that are more consistent with Title II's text.