If the government was going to force Southern businesses to “serve Negroes,” then the government should have to pay the businesses for each Negro they allowed on their property.
That, at least, was the Supreme Court argument of Moreton Rolleston Jr. shortly after Congress passed the Civil Rights Act of 1964. The white owner of an Atlanta motel, Mr. Rolleston took pride in never serving Black customers. Yet the new civil rights law prohibited him from discriminating on the basis of race.
Mr. Rolleston promptly sued the government. Among his claims, he argued that a business’s right to exclude unwanted visitors was a “property right.” Because the Fifth Amendment declares that “private property” cannot be “taken for public use without just compensation,” he wanted the government to pay him $1 million for taking away his right to exclude Negroes.
No doubt muffling its laughter, the Supreme Court responded simply, “The cases are to the contrary.” The cases it cited interpreted the Fifth Amendment to require “just compensation” only for literal seizures of land. These cases permitted the government to pass civil rights laws, fair housing laws and anti-retaliation laws. They did not require the government to pay people not to discriminate.
But the Supreme Court controls what cases it takes. And the court of today is far more conservative than the court of 1964. No one will be laughing on Monday, when the justices will consider whether to resurrect Mr. Rolleston’s argument as the law of the land.
The new case, Cedar Point Nursery v. Hassid, involves California agribusinesses that each employ hundreds of farmworkers. Instead of discriminating against Black people, these businesses want to discriminate against union organizers.
The fight between California’s agribusinesses and its unions began just after Mr. Rolleston brought his case in 1964. At the time, the thousands of farmworkers who put food on America’s tables had few legal protections. They received meager wages to work unlimited hours without any right to bargain collectively or report unsanitary conditions.
This began to change in 1965, when Cesar Chavez, Dolores Huerta and other organizers of what became the United Farm Workers led strikes and boycotts to force agribusinesses to treat farmworkers with dignity. The campaigns were so successful that in 1975, California’s governor, Jerry Brown, sat down with Mr. Chavez and the agribusinesses to negotiate a legal arrangement they could all live with.
The result was the California Agricultural Labor Relations Act, one of the first laws in the country to protect the labor rights of farmworkers. The act also created the Agricultural Labor Relations Board, which enacted regulations to protect farmworkers from abusive employers.
One of those regulations, the “access rule,” gave union organizers a limited right to talk to farmworkers on company property. Up to four times a year, for 30 days at a time, properly identified organizers are allowed to approach farmworkers during their lunch breaks and for an hour before and after work.
Echoing Mr. Rolleston’s campaign against the Civil Rights Act, many agribusinesses complained that the access rule took away their property right to keep unwanted people off their land. But as in Mr. Rolleston’s case, California’s Supreme Court upheld the access rule in 1976. The U.S. Supreme Court dismissed an appeal “for want of a substantial federal question.”
Now, more than 40 years later, the same access rule is back before the U.S. Supreme Court. One of the largest grape growers in the nation, the Fowler Packing Company, has prevented the United Farm Workers from meeting with workers on company land. When the union filed a complaint with the state, Fowler joined another agribusiness, Cedar Point Nursery, and sued to strike down the access rule. They again argue that California must pay them not to discriminate against union organizers.
Yet in contrast with Mr. Rolleston’s blunt language, the agribusinesses’ lawyers have so far avoided much public scrutiny by speaking high legalese. The access rule “appropriates an easement in gross without compensation,” they write. They claim that “the right to exclude is too important to be left at the mercy of government officials who will inevitably seek as much public access as possible without paying for it.”
One explanation for why the Supreme Court agreed to reconsider Mr. Rolleston’s argument in this form is that the conservative justices are in the middle of a campaign to undermine labor unions. Workplaces have long been the main forum in which organizers encourage workers to act and bargain collectively. If governments must pay businesses untold sums for each on-site organizing campaign, then governments might withdraw the meager legal protections such campaigns now receive.
That might sound great for opponents of organized labor. But Mr. Rolleston’s rule would affect far more than union organizing. For example, health and safety laws require businesses to give unwanted inspectors “access” to their workplaces. Mr. Rolleston’s rule would require the government to pay “just compensation” every time a health inspector searches for rats.
Affordable housing laws similarly require landlords to give low-income tenants “access” to their rental properties. Mr. Rolleston’s rule would require the government to pay landlords who would rather exclude these or any other tenants.
And laws that prohibit employers from firing workers who complain of harassment also, in effect, protect these workers’ “access” to the workplace. Mr. Rolleston’s rule would require the government to pay employers to rehire anyone they illegally fired.
Thankfully, Mr. Rolleston lost his lawsuit back in 1964. The country has been better off for it. We should not have to pay businesses to obey the law.
Nikolas Bowie is an assistant professor at Harvard Law School, where he teaches courses on federal and state constitutional law and local government law.
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