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New Article: Luke Anderson, Note, Private Business for your Private Business: Expanding Bathroom Access for People Experiencing Homelessness by Banning Customers-Only Policies, 124 Colum. L. Rev. 85 (2024). Abstract below:
For people experiencing homelessness, lack of access to public bathroom facilities often forces the humiliating need to urinate or defecate in public. The bathroom options available to those experiencing homelessness do not meet the population’s needs. One solution that scholars and local leaders have proposed is to ban customers-only bathroom policies. Such bans pose difficult legal and political questions. Most significantly, the recent Supreme Court case Cedar Point Nursery v. Hassid—which expanded takings doctrine and made government regulation of access rights more difficult—creates a complex legal roadblock for local lawmakers seeking to ban customers-only bathrooms. The academics, lawmakers, and activists who have discussed limitations or bans on customers-only bathrooms have yet to address the challenge posed by Cedar Point.
This Note seeks to fill that gap by analyzing the landscape of takings jurisprudence after Cedar Point. It reaches two related conclusions. First, banning customers-only bathrooms would likely not be a taking. While Cedar Point ostensibly limited a host of access-rights regulations, it carved out several exceptions. Bans on customers-only bathrooms would likely fall into one such exception. The Court’s broad holding may thus be less exacting than it appears. Second, regardless of whether these bans are takings, municipal leaders can best serve the public by providing just compensation for the access rights these bans carve out. This solution avoids the indeterminacies of Cedar Point, softens the political blow to business owners, and centers the experience and dignity of those living in homelessness.
Poverty Law 