State action arguments failed again in 1960 when two travelers from New York brought a
suit to desegregate the White Tower restaurants. The federal district court found that the
restaurant was a private entity not bound by any rule of common law to serve anyone who asked
for service. Plaintiffs chief argument below was that private acts of segregation were a product
of the earlier segregation laws. The court responded that "much water has gone under the bridge"
since the decisions in the 30's and 40's sustaining state sponsored segregation, and that businesses
were now responsible for their own acts of segregation.160

While an appeal was pending from the Maryland decision, the Supreme Court decided
Boynton v. Virginia, which held that a restaurant in a bus terminal was covered by the Interstate
Commerce Act's prohibition of discrimination by "any common carrier by motor vehicle engaged
in interstate or foreign commerce."161 Citing Henderson. the Court said that carriers could not
discriminate in dining facilities, whether provided on the carrier or in their terminals. Defendants
argued that they were not covered because they leased the facilities in the terminal from the bus
company and were not themselves a carrier. The Supreme Court responded that a restaurant
designed to serve bus passengers in a bus terminal stood "in the place of the bus company in the
performance of its transportation obligations." The Fourth Circuit distinguished Boynton from
the White Tower case, pointing to Justice Black's statement in Bovnton that "We are not holding
that every time a bus stops at a wholly independent roadside restaurant the Interstate Commerce
Act requires that restaurant service be supplied in harmony with the Act." The Fourth Circuit
concluded that the White Tower restaurants could maintain their policy of segregation.

Not every state action suit met failure. In Jones v. Marva Theatres. Inc..162 plaintiffs,
represented by Juanita Jackson Mitchell, Tucker R. Dealing and Jack Greenberg sued to
desegregate a motion picture theater in Frederick, Maryland. The theatre was located in City
Hall and had been leased from the city of Frederick. The city, represented by Charles Mathias,
had agreed to end the policy of segregation, but the theatre owner refused to comply. Judge
Thomsen noted that the lease referred to facilities and equipment in the theatre as "box office"
and "colored box office," "men's room" and "colored men's room," and "ladies room" and
"colored ladies room." The city also reserved the right to use the theatre four times during the
year for public functions. The district court enjoined the theatre from its policy of segregation,
stating that "A place of public assembly, a part of City Hall, leased under an agreement which
contemplated segregation, comes within the rule" that the right not to be discriminated against in
public places cannot be abridged by leasing the public facility to private entities.163

Despite this success, lawsuits to desegregate places of public accommodations based on
state action theories were of limited value. Effective application of the principle of
nondiscrimination to open all such places on a desegregated basis would have rendered the state
action limitation in the fourteenth amendment a virtual nullity.

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