Sandra Adickes v. S. H. Kress and Company

WATERMAN, Circuit Judge

(dissenting) :

I respectfully dissent.

I.

I would reverse the judgment below and remand for further proceedings in the district court. I agree with my brothers’ discussion in Part II of their majority opinion and with the result they reached there. I also agree with the result reached by them in Parts VI and VII. I must dissent, however, from the remainder of the majority opinion and from the order affirming the judgment for the defendant that was entered after the jury returned the defendant’s verdict which the trial court had ordered.

In my view, the initial rulings on defendant’s motion for summary judgment were erroneous, 252 F.Supp. 140. As a direct consequence of these erroneous rulings to which Chief Judge Ryan and Judge Tenney adhered, Chief Judge Ryan at the pretrial conference he held, and Judge Tenney at trial, deprived plaintiff of any opportunity effectively to present or to prove her case. Inasmuch as my brothers now approve the initial rulings and those made subsequent thereto, bottomed thereon, I believe it essential for me to file a rather exhaustive opinion, setting forth my position.

Plaintiff’s claim for damages against Kress was based upon an alleged violation by Kress of the Civil Rights Act of 1871, 42 U.S.C. § 1983. In support of her claim, plaintiff contended that Kress discriminated against her “under the color” of either “custom” or “statute, ordinance, [or] regulation,” i. e. “law” of the State of Mississippi, or both. These two grounds for recovery are separate and distinguishable from each other; they require different kinds of proof and they deserve individual attention and treatment. In Part II of this opinion I propose to examine the proof required to make a prima facie case “under the color of custom” allegation, and in Part III, I will explore the proof necessary to make one “under the color of law” allegation. The relevant discussions will examine the errors of the lower court judges and how these errors hindered the development of plaintiff’s case.

II.

Although the Civil Rights Act of 1871 was the subject of extensive and intensive Congressional debate (see, The Reconstruction Amendments’ Debates, 484-570 (1967),1 the exact dimensions of the term “custom” appear to have received scant attention. See id,.; see also, id. at *128161-171, 174-183, 186-191, 198-209, 210, 584, 586, 609. Considering the passions aroused by the Reconstruction Amendments and the Civil Rights Bills and having in mind the close scrutiny Congress gave each Amendment and bill, it seems strange that more was not said in Congress about the meaning and scope of the term “custom.” Of course, the logical reason for this must be that “custom” had a reasonably well fixed and definite meaning at the time the Civil Rights Act of 1871 was debated and enacted. The definition in Black’s Law Dictionary 461 (4th Ed. 1951) defining “custom” is

A usage or practice of the people which, by common adoption and acquiescence, and by long and unvarying habit, has become compulsory, and has acquired the force of a law with respect to the place or subject-matter to which it relates. Adams v. [Pittsburgh] Insurance Co., 95 Pa. [348] 355, 40 Am.Rep. 662 (1880); King v. Shelton, Tex.Civ.App., 252 S.W. 194, 195; Conahan v. Fisher, 233 Mass. 234, 124 N.E. 13,15; Lawrence v. Portland Ry., Light & Power Co., 91 Or. 559, 179 P. 485, 486; U.S. Shipping Board Emergency Fleet Corporation v. Levensaler, 53 App.D.C. 322, 290 F. 297, 300.

This definition appears to be a definition that would have been acceptable to the legislators in 1871. See The Reconstruction Amendments’ Debates, 164-65, 176-77, 182-83, 198, 204-05, 210, 216, 492-93, 498, 519, 553-54, 584, 586 (1967); cf. Civil Rights Cases, 109 U.S. 3, 16-17, 3 S.Ct. 18, 27 L.Ed. 835 (1883); 17 Corpus Juris, Customs and Usages § 1-6 (1919); see also, Vol. 10A, Words and Phrases, Perm.Ed. Custom Cf. Wilcox v. Wood, 9 Wend. (N.Y.) 346, 349.

Accepting this definition as correct and compatible with Section 1983, it becomes immediately apparent that the practice Judge Bonsai ordered plaintiff to prove could not possibly qualify as a “custom” of the State of Mississippi or any part thereof. As the majority implicitly admits, a custom of not serving white persons who were in the company of Afro-Americans could not be proven because it was only after the Civil Rights Act of 1964 became law that Afro-Americans had an opportunity to be served in Mississippi “white” restaurants. See, e. g. N.A.A.C.P. v. Thompson, 357 F.2d 831, 835 (5 Cir.), cert. denied sub nom. Johnson v. N.A.A.C.P., 385 U.S. 820, 87 S.Ct. 45, 17 L.Ed.2d 58 (1966); Dilworth v. Riner, 343 F.2d 226 (5 Cir. 1965). Consequently the requirement that the practice intended to be proven as a “custom” be of “long and unvarying habit” could not be satisfied if, in fact, the relevant practice required to be proved by Section 1983 was that delineated by Judge Bonsai.

In making his ruling Judge Bonsai rejected plaintiff’s assertion of the relevant Mississippi practice which had gained the status of a “custom” there. Plaintiff contended that the practice of fostering the segregation of races in places of public assembly was the relevant “custom.” I agree. This longstanding practice which has been the subject of numerous writings, (see, e. g., J. Silver, Mississippi: The Closed Society (1964); see, U.S. Senator Edward M. Kennedy, Book Review of “Coming of Age in Mississippi,” by Anne Moody, The New York Times Book Review, January 5,1969, at 5, col. 2,) and the root of many legal controversies (see e. g. United States v. Price 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Achtenberg v. Mississippi, 393 F.2d 468 (5 Cir. 1968); cf. Sunflower County Colored Baptist Association v. Trustees of Indianola M.S.S.D., 369 F.2d 795 (5 Cir. 1966)) is manifested in many ways. The refusal to serve the plaintiff is but one illustration.

Civil Rights laws, especially the Civil Rights Act of 1964, and the pressures exerted by local and national civil rights organizations have made it more difficult to refuse to serve Afro-Americans at what was formerly an all-white lunch area. However, by more subtle means, restaurant owners can and do let Afro-*129Americans and their white friends know that the ancient custom of racial segregation is not yet dead. This information was conveyed to the mixed group here by the simple expedient of refusing to take the order of a white woman who would flaunt custom and, in a dining establishment in the center of Hattiesburg, sit down at the same table with and plan to break bread with young Afro-American friends.2 The end result of these tactics and of other similar tactics was to cause by, for instance, the act here, the continued discriminatory separation in 1964 of the Afro-American diners from the white diners within the area of a so-called “integrated” eating establishment by prohibiting individual members of the races from dining together at the same tables or booths. Thus the custom, which has existed in the “closed society” of Mississippi since, admittedly, at least 1880, of not permitting the races to mix socially was reinforced and perpetuated.

Plaintiff’s proffered evidence of the existence of a custom of separating the races in places of public assembly, Mississippi State Senate Resolution No. 125 (1956); Miss.Code § 4065.3 (1956); Miss.Code § 2056.7 (1954), does not conclusively establish the fact that the custom of keeping the races separated existed in 1964. However, in the light of the cases which have involved one aspect or another of the custom, e. g., City of Greenwood v. Peacock, supra; United States v. Richberg, 398 F.2d 523 (5 Cir. 1968); N.A.A.C.P. v. Thompson, supra; Brown v. City of Meridian, 356 F.2d 602 (5 Cir. 1966); Dilworth v. Riner, supra; cf. e. g., Sunflower County Colored Baptist Association v. Trustees of Indianola M.S.S.D., supra; Norton v. McShane, 332 F.2d 855 (5 Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); United States v. Faneca, 332 F.2d 872 (5 Cir. 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965), and the extensive writing concerning the general subject of segregation (see, e. g. Silver, supra; E. Kennedy, supra), the district court should have taken judicial notice of the prima facie fact that such a custom existed in Mississippi in 1964 and that the experience of the plaintiff was, prima facie, one illustration of the custom in action. See, e. g., Meredith v. Fair, 298 F.2d 696, 701 (5 Cir. 1962); United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5 Cir. 1959); Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326, 332 (5 Cir. 1959).

The error committed by Judge Bonsai in defining the relevant custom was compounded by his erroneous ruling that the relevant custom must be shown to exist both in the State of Mississippi and in Hattiesburg. Such proof is not required by Section 1983. Section 1983 only demands proof of a custom in the locality where plaintiff experienced the invidious racial discrimination. This proof could consist either of one or two types of evidence. First, plaintiff could produce evidence establishing the existence of a “general” custom which prevails throughout the State, see, e. g., Bodfish v. Fox, 23 Me. (10 Shep.) 90, 95; 39 Am.Dec. 611 (1843); see also Black’s Law Dictionary 461 (4th Ed. 1951), and which, a fortiori, would be rebuttably presumed to exist as a custom in the locality where the discriminatory event occurred. Second, plaintiff could produce evidence that established the discriminatory practice to be a local custom prevailing only in the particular locality where plaintiff ex*130perienced the discrimination. See, e. g. 1 Blackstone, Commentaries 74; Black’s Law Dictionary, supra. Judge Bonsai’s ruling to the extent that it required proof beyond that stated above was clearly erroneous and greatly hindered the presentation of plaintiff’s case.

The lower court also erred in holding that the plaintiff, in order to satisfy the requirement of “state action,” had to prove that the “custom” was enforced by means of Section 2046.5. By definition custom is a practice that has the force of law. Black’s Law Dictionary, supra; see, e. g., The Reconstruction Amendments’ Debates, supra, at 553-54; Civil Rights Cases, supra. When a practice has the force of law the practice, i. e., the custom, will be enforced by the imposition of some type of sanctions upon those who would violate the custom. However, since it is custom — unwritten law — with which we are dealing, the sanctions imposed for violation of the custom would not normally be spelled out as such in a written statutory code, or body of ordinances, or set of regulations. Enforcement of custom may be accomplished by a variety of methods “within the law.” For instance, here the custom could be enforced through the use of Section 2046.5, if, presumably, the restaurant operator complained directly to the police, see, e. g. Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964); Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed. 323 (1963); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L. Ed.2d 338 (1963). But it could also be enforced by other means as by arresting custom violators for breach of the peace, see, e. g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L.Ed.2d 349 (1963); Taylor v. Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395 (1962); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Brown v. City of Meridian, supra, or arresting violators on charges of disorderly conduct, see, e. g., Pierson v. Ray, 352 F.2d 213 (5 Cir. 1965) reversed in part, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Nesmith v. Alford, 318 F.2d 110 (5 Cir. 1963), or arresting, as here, on charges of vagrancy, see, e. g. Achtenberg, Adickes et al. v. Mississippi, supra; Robertson v. Johnston, 376 F.2d 43 (5 Cir. 1967), or by official harassment short of arrest, as, for instance, officer surveillance. The defendant hints of the possibility that those mixed racial groups who would dine together, as Miss Adickes and her Afro-American students, may not be the only persons who feel the force of sanctions imposed for the violation of custom. Restaurant operators such as Kress could be harassed, threatened with license revocation or unnecessary but disruptive health inspections etc., if they violate custom by serving such mixed racial groups.3 Endless is the variety of ways by which public officials can ensure that custom has the force of a law. See Lombard v. Louisiana, supra. Of course, when custom is perpetuated and enforced only through the use of strictly private pressures4 *131with violators experiencing the icy chill of social ostracism administered by members of a particular stratum of society, such a practice, although a way of life that exists within a State, would not be one that is classified as being a custom “of a State.”

Nevertheless, one need not be confused between a social stratum’s way of life and the custom of a State. To prove that a plaintiff is entitled to proceed in an action for redress under Section 1983, a plaintiff need but present a prima facie case that the State, or its instrumentalities, or its agencies, or its individual officers, directly or indirectly, lend either their authority, or the threat of power or the aura of prestige to the perpetuation and enforcement of the custom. See, e. g. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Garner v. Louisiana, supra, 368 U.S., at 176-182, 82 S.Ct. 248 (Douglas, J., concurring) (1961); Baldwin v. Morgan, 287 F.2d 750, 756-760 (5 Cir. 1961). See generally, Comment, State Action Under the Equal Protection Clause of the Fourteenth Amendment and the Remaining Scope of Private Choice, 50 Cornell L.Q. 472 (1965). And, a custom, if well known, is provable by the taking of judicial notice of it, as is also, if well known, the state-sponsorship thereof. If the plaintiff presents a prima facie case that there is the discriminatory custom and that proprietors of business establishments understand that the State seeks to preserve that custom, then the plaintiff has established plaintiff’s initial burden of proof under Section 1983. So, if plaintiff establishes the existence of an understood state “custom” then it follows that, prima facie, the eating establishment operator, Kress, acted pursuant to that custom when it refused to serve Miss Adickes. See, Lombard v. Louisiana, supra; Garner v. Louisiana, supra 368 U.S. at 181, 82 S.Ct. 248 (Douglas, J., concurring); Bullock v. Tamiami Trail Tours, Inc., supra; cf Rolfe v. County Board of Education of Lincoln County, 391 F.2d 77, 80 (6 Cir. 1968). If Kress acted pursuant to a state-sponsored or state-encouraged custom, it has subjected itself to possible liability to Miss Adickes under Section 1983. Consequently not only did plaintiff state a good cause of action under Section 1983 by alleging in Count I that Kress discriminated against her under the color of a custom but, in all likelihood, she would have been able to prove the cause of action at trial if she had not been restricted in her proof of its scope by erroneous pre-trial rulings of the lower court.

III.

Plaintiff also alleged in her complaint that Kress violated Section 1983 because its refusal to serve her was “under the color of law.” This claim is correctly recognized by the majority as separate from the “under the color of custom” claim but the majority rejects it on the ground that plaintiff has failed to show any state involvement in the discrimination practiced by Kress. Since I believe that a prima facie case of “state action” was proved, I file my dissenting views.

According to the majority, the Reitman v. Mulkey, supra, analysis suggested by plaintiff is inapplicable because Mississippi in enacting Section 2046.5 of the Mississippi Code only restated the common law and “put in statutory form an existing policy of neutrality with respect to private discriminations.” 5 Premised upon this belief, the majority holds that “the state must do more than it has done for the required state action to be found” (p. 756). My ground for disagreement with the majority’s conclusion that “state action” is lacking here is premised on what seems to me to be an incomplete analysis of the common law and of the nationally-known history of Mississippi’s past policies with respect to “private discrimination.”

*132Certainly common law rule, a rule presumed to apply in Mississippi, see Western Union Telegraph Co. v. Goodman, 166 Miss. 782, 146 So. 128 (1933), is not completely unequivocal in pronouncing that a restaurateur could serve whomever he wished. Blackstone stated:

* * * if an innkeeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action lies against him for damages if he, without good reason, refuses to admit a traveler. (Emphasis supplied.)

3 Blackstone Commentaries 164 (Lewis ed. 1902) at 166. See also Letaiyo—W. Moore v. Wood, 58 Misc.2d 170, 294 N.Y.S.2d 1009 (S.Ct. 1968); Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718, 9 L.R.A. 589 (1890). In Tidswell, The Innkeeper’s Legal Guide 22 (1964) a “victualling house” is defined as a place “where people are provided with food and liquors, but not with lodgings,” and in 3' Stroud, Judicial Dictionary (1903) as “a house where persons are provided with victuals, but without lodging.” In the shorter Oxford English Dictionary (1939), “victualler” is defined as “A purveyor of victuals or provisions; spec, the keeper of an eating-house, inn, or tavern; a licensed victualler.” And see Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100 (1918). Therefore, a “restaurateur” is the equivalent of a “victualler” and, insofar as Blackstone’s Commentaries may be the “common law” of the United States, the Blackstone common law rule applicable to a victualler and a “victual-ling house” is applicable to a restaurateur and a place where food is served for consumption on the premises. It, if applicable, requires the restaurateur to serve all persons unless he can show “good reason” for denying service.

Most assuredly the common law allows the restaurateur to refuse to serve a person for good reason. “Good reason” of course means that the restaurateur may refuse to serve a person who is “ * * * unclean, untidy, intoxicated, or affected by disease * * *” (Noble v. Higgens, 95 Misc. 328, 158 N.Y.S. 867-868 (1961)); see also Regina v. Rymer, 2 Q.B. 136, 40 L.J.M.C. 108 (1877); but a refusal of service based upon racial discrimination is just as assuredly not a “good reason.” Id.; see Letaiyo—W. Moore v. Wood, supra. Therefore, to the extent that Mississippi Code Section 2046.5 allows a restaurateur a full discretion for any peculiar idiosyncrasy or prejudice of his own to pick and choose whom he wishes to serve, I submit that Mississippi has drastically changed the common law.

The majority’s intimation that the passage of Section 2046.5 merely represented the placing into statutory form of an existing policy of neutrality toward private discrimination “defies history and common knowledge.” Meredith v. Fair, 305 F.2d 343, 360 (5 Cir. 1962). Until Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and its progeny, Mississippi openly maintained a state policy of segregation and actively supported private racial discrimination. See, e. g., Meredith v. Fair, supra, and cases and materials cited in Part II of my dissent.

Since racial discrimination as a straightforward state policy has been denied by the Constitution, there has followed a subtle but deliberate delegation of the enforcement of the policy to private hands. The legislative “repeal” of the common-law duties of innkeepers is only one recent example of a time-tested practice elsewhere manifest in the history of voting rights.

W. Van Alstyne and K. Karst, State Action, 14 Stan.L.Rev. 3, 4 (1961). Miss. Code Section 2046.5 is nothing more than another legal subterfuge designed to avoid and to frustrate the federal constitutionally required policy of equal treatment of the races and the right of equal access to and enjoyment of the facilities available in public places and en*133terprises holding themselves out as “engaged in public business.”

Although my brothers may believe that Miss.Code Section 2046.5 appears on its face to take a neutral position with respect to private racial discrimination, it is clear that, like Proposition 14 in Reitman v. Mulkey, supra, Section 2046.5 is an affirmative action taken by the State which is intended to encourage, authorize, and to continue to make legally possible private racial discrimination by the proprietors of businesses there listed. Additionally (and this shows that Section 2046.5 is even more declaratory of the state’s determination to preserve racial discrimination than was demonstrable in Proposition 14), Section 2046.5 promises the discriminator the support of the police power of the State of Mississippi by authorizing the arrest for “trespass” of a person who refuses to leave a restaurant after being refused service irrespective of the reason for the refusal. Examination of the authorities, see, e. g., Reitman v. Mulkey, supra; Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914), leaves no doubt that the “state action” requirement is fulfilled in this case and that the State of Mississippi, by enacting Section 2046.5 has significantly involved itself in private discriminations.

The only remaining question is whether the relationship which occurred here between the “state action” and the private discrimination is sufficiently close to conclude that the defendant, Kress, acted under the “color of law.” Miss Adickes was subjected to “state action” immediately after the racial discrimination, and her immediate arrest was condemned by the Judges of the Fifth Circuit, the Federal Appellate Court most cognizant of Mississippi law and custom. I maintain that I, in this dissent, and the plaintiff in her pleadings and at trial, have the right to rely upon the judgment of that Court and that it is not for Judges of the Second Circuit to deny Miss Adickes .her day in court when the Judges of the Fifth Circuit have so demonstrably spoken. See Achtenberg, Adickes et al. v. Mississippi, supra; cf. Bernhardt v. Polygraphic Company of America, 350 U.S. 198, at 212, 76 S.Ct. 273, 100 L.Ed. 199 (1956) (Frankfurter, J., concurring). I repeat the statement I made earlier in this case:

I dissent and would remand for further proceedings below. See Achtenberg, Adickes et al. v. State of Mississippi, 393 F.2d 468 (5 Cir. 1968).
Miss Adickes was engaged in “protected activity”; Section 2046.5 of the Mississippi Code encouraged the defendant’s employees to make the invidious discrimination; and her arrest upon her immediate exit from the store on the unsupportable trumped-up charge of vagrancy was a flagrant misuse of the State’s criminal process in order to perpetuate by subterfuge Mississippi’s well-known practice of preventing Caueasions and Afro-Americans from grouping themselves together in company in places of public resort.

If plaintiff could show that Kress acted pursuant to the powers granted by Section 2046.5 to pick and choose whom it wished to serve then Kress was acting under the “color of law” and is liable under Section 1983. See, e. g., United States v. Price, supra; Burton v. Wilmington Parking Authority, supra; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); see also cases summarized in Black, Foreword, “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv.L.Rev. 69, 86 (1967). In establishing that Kress acted pursuant to powers granted by Section 2046.5 plaintiff, in order to establish a prima facie case, need not prove that Kress actually knew of Section 2046.5 specifically or of its penalties; all that need be proven by direct or circumstantial evidence is that the employees of Kress had knowl*134edge that under Mississippi law Kress did not have to serve Miss Adiekes if she chose to be accompanied by her Negro friends. Cf. Reitman v. Mulkey, supra; Peterson v. City of Greenville, supra; Robinson v. Florida, 378 U.S. 153, 84 S. Ct. 1693, 12 L.Ed.2d 771.

. The Reconstruction Amendments’ Debates is a 1967 publication of the Virginia Commission on Constitutional Government (now defunct). The edition is comprised of edited reprints and relevant legislative history of the important contemporary Senate and House debates discussing the 13th, 14th, and 15th Amendments and the related Reconstruction bills and acts of Congress.

. The courts must he attuned to the subtle discriminations attempted by those intent on frustrating national policy; otherwise the rights guaranteed by the Constitution to all Americans will be hollow indeed. In examining possible discriminatory action the courts should remember:

One intent on violating [laws prohibiting discrimination] cannot be expected to declare or announce his purpose. Ear more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive — for we deal with an area in which “subtleties of conduct * * * play no small part.” Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584, 44 A.L.R.2d 1130 (1954) (Euld, J.).

. The activities of the Mississippi State Sovereignty Commission, a curious arm of the state legislature, and of the White Citizens Council are of interest when one has the duty to probe the official or state involvement in the enforcement of the custom of segregating the races. It appears to be common knowledge that, in addition to its own activities promoting segregation, the Mississippi State Sovereignty Commission, an agency created in 1956 and financed by state tax revenues, used a part of its funds to finance some of the activities of various groups, including the White Citizens Council, which promote adherence to the ancient custom of proscribing the mixing of the races in places of public assembly; and that these groups, especially the White Citizens Council, use economic and social power to pressure those who might attempt to disregard custom into adhering to custom. See, generally, J. Silver, Mississippi: The Closed Society, 8, 32, 39-40, 42, 43, 65, 79, 94, 97, 110, 133, 151, 217 (1964).

. Obviously any group would not be using state funds when so engaged. See note 3, supra.

. Reitman v. Mulkey, 387 U.S. 369, 376, 87 S.Ct. 1627, 1631, 18 L.Ed.2d 830 (1967) quoted in Part Y of the majority opinion.