Andrew Hawkins v. Town of Shaw, Mississippi

BROWN, R. Chiеf Before JOHN TUTTLE, WISDOM, Judge, GEW- and COLEMAN, IN, BELL, THORNBERRY, GODBOLD, AINSWORTH, GOLDBERG, CLARK, DYER, SIMPSON, MORGAN, Judg- INGRAHAM, RONEY, Circuit es.

PER CURIAM: court, having En been convened having oral Banc heard additional argument additional and considered briefs, judgment entered reaffirms original panel court, 5 Cir. this court, how- 437 F.2d 1286. The following ever, makes statements dealing raised some issues originally either or for Re- Petition hearing. judging conduct, intent, In mo- human subjective purpose are tive elusive usually concepts, their can existence proven from As inferred facts. original opinion, stated in the record direct evi- before us does contain faith, ill dence establishes bad part on evil motive public town of officials. However, proof clearly the record does judi- establish conduct which cannot be cially approved. prevail in a order type necessary prove in is not

tent, purpose to discriminate motive part feel on the We officials. point clear, for on this the law “ ‘equal protection means Leventhal, Jackson, Miss., of the laws’ Melvyn R. govern merely Shapiro, more the absence New than Greenberg, Jack Jonathan discriminate; designed mental action City, plaintiffs-appellants. York recognize firmly persons sought plaintiffs . ‘we now the class of thoughtlessness arbitrary quality ques- relief as to some of the services private municipal government and unfair to tion pri- disastrous from the can rights per filing Although public and to interest as suit. the district versity (Empha contrary, court found of a willful scheme’.” to the we do not supplied.) finding Nor think that sis Norwalk CORE v. stand can as to all Agency, Redevelopment 2 Cir. walk view the evidence Kennedy point 920, can, this 395 F.2d See also the record. 931. There City Association, therefore, question of Park Inc. v. be no Homes about the claim 1970) being ripe Lackawanna, (2 presentation York Cir. here New to the 108, 114, provi- United 436 F.2d cert. den. 401 U.S. States under Courts 1010, 1256, L.Ed.2d 546 sions of 42 91 28 U.S.C. S.Ct. 28 U.S.C. § (1971) requirements may 1343. and United ex rel. Seals Whatever ex- § States Wiman, plaintiff 1962, at 65. ist as to the v. 5 Cir. 304 F.2d 53 need of a to demon- “finality” strate thаt there is such judgment Moreover, in our deprivation complains of which he as certainly squarely us facts before “ripe” make the cause of action support infer the reasonable and logical bringing (cf. of a federal law suit neglect that involv ence there'wasTiere discussion in Stevenson v. Board of Ed- ing clear discrimi overtones of racial County, ucation of Georgia, Wheeler govern nation in of the administration 1970, 1154, Cir. 426 F.2d cert. den. of re mental affairs the town of Shaw 957, 355, 265; sulting in the same which charac evils Garson, 1970, and Hall v. 5 Cir. 430 F.2d purposeful terize an intentional and regard dis 436), 430, problem no such exists here. protec principle of Hop tion of Yick the laws. See Wo Thus, posture this of the ease obviates kins, 1064, L.Ed. S.Ct. necessity attempting of our to articu- (1886); Loving Virginia, 220 1, 10, 388 U.S. generally applicable principle late a 18 L.Ed.2d 1010 “finality” “ripeness” beyond what has (1966); Hughes, Snowden already been said in cited For cases. 497; Ken L.Ed. many us to so in do view of the differ- nedy Associаtion, Park Inc. v. Homes rights” ent kinds of “civil actions City Lackawanna, Rodriguez supra; comprehended are under Section Brown, 273; 5 Cir. 429 F.2d only difficult, extremely would not Redevelop Norwalk CORE v. Norwalk but, types as to other fact situations page Agency, supra ment 395 F.2d actions, any by statement us would merely amount to dictum and would be to enter Federal Courts are reluctant purely advisory. We reiterate what government operations. the field local previously said—that before “an The conduct extremely affairs is manage.” ease can be a federal court considered vehicle to awkward original opinion, apparent It from depri- our. under Section forbidden here, repeat do not im- and we ply that we complete vation must be and final. Oth- suggest every disparity erwise, merely the courts would be ad- a town or V/services between citizens vancing advisory opinions, they city to the fed- access creates not do under Article Sectiоn eral for redress. We deal courts of the Constitution. Shaw, Mississippi, and the town of developed foregoing standards, the facts record. Applying opinion con- is our that the case under

II type in which sideration is of case jurisdiction exercised. federal should be carefully reviewed We have Having reached that conclusion all here, appears that various record and it WISDOM, Judge (specially Circuit appropriate rem- an to choose remains is concurring) appropriate : edy relief.1 to frame opin- fully agree I Tuttle’s Ill panel adopting it ion for the favor opinion of the en banc Court. panel original directed Here agree Although result reach- I with the plan eliminate defendants submit banc, disagree ed the Court en I This disparities court. district some of the statements contained opinion by facts approach under the was a sound en the Court banc. course, say, of is not this case. This opinion First, states, A. “In or involving depriva that in another case prevail type it is in a case of this der rights re tion under Section necessary prove intent, motive plan quirement of a submission part purpose discriminate on the governmental authori the defendant accept ac officials.” as an This ty appropriate reme be the most would opin curate of the The statement law. situations, dy. presenting a sim In some goes state, however, ion over, on to “More finally ple issue, may dis the case judgment our the facts before posed appeal. on In others the of squarely certainly support the us and to the district well be remanded logical and reasonable inference that rights court, a after determination neglect involving here there was clear per parties, purpose of of for the the of discrimination in the overtones racial mitting exercise the trial to governmental administration of affairs equitable in in the first full discretion rеsulting of town in the Shaw Here, had however, matter stance. same an evils which characterize inten dis attention received extended disregard purposeful tional of possible avail All facts were trict court. principle equal protection of of the laws.” according Also, to to the able court. ambiguous. This It statement should is argument, time of oral statements at the imply not be read to that our decision acial-committee, appointed bi-r has been part in this case was based even governing authorities motive, proof purpose, of To or intent. mayor and counsel advise imply proof motive, purpose, of or city regarding A black services. citizen necessary is intent establish basis city council. had elected been in a relief case such as this is facts, together, would seem These taken unambiguous misstate the law clear feasibility to indicate the of subject. Thomp on the Palmer v. See municipal authorities whеreunder 217, 225, son, 1971, 403 91 U.S. S.Ct. plan to eliminate will formulate 1940, 1945, 445; 438, 29 L.Ed.2d Grif formulated, plan disparities. Once County fin v. Board of School Prince will, subject approval course, of County, 218, 1964, Edward 84 377 U.S. the district court. 256; 1226, 12 S.Ct. L.Ed.2d Gomillion 1960, judgment Lightfoot, 339, and remand- The reversed S.Ct. is U.S. 110; Button, proceedings 125, incon- ed for not further NAACP v. 1963, 328, 415, sistent herewith. 9 L.Ed. 371 U.S. S.Ct. attempting Stone) Without determine to what Mr. and see Justice Garren enforcing Winston-Salem, 1971, extent 1983 and its Section Sec 4th Cir. 439 F.2d only “prop 140, tion 1343 are available when conclude that this not a we is “right immunity personal erty rights” Garson, one of case. See Hall v. liberty, dependent 1971, not its existence 5 Cir. F.2d 430 and Sniadach upon rights”, Family infringement property Corporation, 1969, Finance Hague CIO, 496, 954, 337, 1820, U.S. S.Ct. 89 S.Ct. 23 L.Ed.2d 349. (concurring opinion 83 L.Ed.

H75 Education, 405; pre-maturity. Supreme Bd. of 2d Brown v. The Court 686, L. 483, said: Education, 873; Bd. Ed. Brown v. power ultimately courts, L. 349 U.S. pass upon of this Court consti- Ed. 1083.1 tutionality Congress arises acts states, opinion only litigants “It Second, when interests of B. original quire opinion, judicial from use of this authori- apparent our imply ty against protection do not for their repeat here, that we actual we disparity hypothetical every of services suggest interference. A threat enough. cre- not a town ... It would not citizens between judicial responsibility federal courts accord with of access ‍‌​‌‌‌​‌‌​​​​​​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​‌​​​‌​‌​​‌‌‌‍to ates adjudge, involving town with the a matter consti- deal for redress. We tutionality, Shaw, facts Mississippi, and the between freedom of agree that requirements I developed in and the this record.” individual public except provide equal mu- order when definite failure rights appear upon in a cause nicipal result one side prejudicial federal upon 1983 in definite under section interferences action agree that what other. do court. panel opinion and what in the said United Public Workers of America v. say to the facts here is confined Mitchell, 89-90, pro- is not town case. 91 L.Ed. 767. See one-eyed “red-haired, man with verbial Education, v. also Adler Bd. 342 U.S. case, tBy we limp”. in this our decision 485, 380, 517; 72 S.Ct. L.Ed. Poe v. 96 recognize right citizen Ullman, 1961, 497, 1752, 367 U.S. 81 S.Ct. municipal serv- gardless of race to 989; Donohue, Lathrop 6 L.Ed.2d v. course, will, to be The line ices. 1826, 1961, 820, 367 U.S. 81 6 L.Ed. S.Ct. disparities which between those drawn 1191; Party 2d Communist v. Subver action federal a create Bd., 1961, sive Activities Control 367 by case not. Case those which do 625; 1, 1357, 81 U.S. S.Ct. 6 L.Ed.2d development define the contours will 1963, Books, Bantam Sullivan, Inc. v. action; this case a federal cause of 631, 584; 58, 372 U.S. 83 9 S.Ct. L.Ed.2d precise for the vehicle definition^ Service, Railroad Transfer Inc. v. Chi “ripeness” cago, 1967, 1095, 351, ais The doctrine 386 87 C. U.S. S.Ct. 143; Currie, and “contro- component of the “cases” 18 L.Ed.2d Courts Federal III, 14-17, requirement (1968); Bickel, of Article Sec- 46-50 Least The versies” essentially problem of Dangerous (1962); 71, and is 2 Branch 111-198 tion motive, say proof City 177; is not 1. This Chambers v. Hendersonville purpose Educ., 1966, 189; reinforce intent Bd. of 4 364 F.2d Cir. finding 1964, or serve Education, discrimination of racial 10 Downs v. Bd. of Cir. finding. Taylor Hall 988; See a basis such F.2d as 336 of Educa- Bd. v. Board, tion, 1961, 36; Brest, E.D. 2 v. La.1961, Helena Parish School F.2d St. Cir. 294 649, per F.Supp. Thompson: approach curi aff’d 197 An Palmer v. 515, 529, Legis- L.Ed. 82 S.Ct. 7 Problem am 368 U.S. of Unconstitutional Schnell, (1965) ; Motivation, S.D. Davis v. lative Rev. 95 521 1971 S.Ct. 2d (1971) ; Ely, 872, per Legislative Ala.1949, F.Supp. curi 81 aff’d and Adminis- 749, 933, L.Ed. 93 trative in Constitutional U.S. 69 S.Ct. Motivation am 336 Law, (1970) ; 1093; 1205 Note Assist 79 Yale v. La. Financial L..T. Poindexter E.D.La.1967, F.Supp. Legislative Purpose Comm., and Federal Consti- 275 ance Adjudication, 571, per 833, tutional 83 Harv.L.Rev. 88 aff’d curiam 389 U.S. (1970) ; Comment, 693, (1968); the Constitution- Hob 1887 ality 19 S.Ct. L.Ed.2d 780 Separation D.D.C.1967, F.Supp. Hansen, De- Sex School v. 269 son segregation Plans, Hobson, 1969, 296 nom, 37 U.Chi.L.Rev. v. aff’d sub 401 Smuck 175; (1970). 372, U.S.App.D.C. 408 F.2d 132 Branch, 1966, F.2d v. 4 364 Johnson Cir. 1176 622; 1433, Treatise Damico Law 10 L.Ed.2d v.

3 Davis on Administrative S.Ct. 1967, 416, (1958). California, 88 S.Ct. 116-208 389 U.S. 647; Houghton 526, L.Ed.2d Shaf- 19 v. '¿The plaintiffs in case have the instant 1968, 2119, er, 639, ac- and continue suffer suffered 1319; Smith, King 1968, v. complain. injury they tual about which 309, 2128, L.Ed.2d 392 1118; 20 U.S. question There is no to whether 1970, Garson, Hall v. 5 Cir. injury occur, will harm whether the 430; Henckel, F.2d 5 Cir. Moreno v. plaintiffs, or whether affect these 1970, 431 F.2d 1299. it. n. will have before Court concrete facts adjudication, “ripe” This case opin en banc Footnote D. alleged spectre ion raises the “finality” a little- The doctrine of rights exception” “property to section component of or “con used “cases” C.I.O., Hague jurisdiction. doctrine, See requirement. The troversies” 954, L. Hayburn’s Case, traceable to concurring). (Stone, J., Dall.) (2 provides 409, 1 L.Ed. Ed. have, on previous cases this Court if not act the federal courts will rejected exception. facts, See their subjected are to executive their decisions Hornsby Allen, F.2d legislative 5 Cir. review. This limitation 605; Sadler, “jurisdiction” 5 Cir. corrollary McGuire Arti is a Saunders, 902; F.2d Mansell v. provisions independence of 337 cle III 573; Mer judges. Cir. 372 F.2d Barnes no relevance doctrine has | 8; ritt, Hall v. sugges F.2d 5 Cir. to the instant There is no case.( Garson, 430 F.2d tion that Cir. this Court will orders of subject other branches. review Finally, requiring district E. “Finality” is, sense, in a matter of plan for court to receive and consider degree. money judgment example, For equalization against government the federal can be not, Shaw, do the town of legislative avoided if the chooses branch suggest, indicate seem Gewin would any appropriate money pay to refuse to ability in the lack of confidence judgment or a decree of a federal court, other in the district this or court can have execu little if the force case, remedy in line with to fashion a power tive to refuses use its to enforce recognize Rather, we our directives. question “finality” it. There no planning concept represents a in the instant case. this case. useful tool in such as situations “ripeness” oblique The The district court the benefit references to will have “finality” opinion and in and of those who the en banc of the ideas abilities sug- plan attempt should not be draft as who criti read as an to as those well gest plan puts requirement that an ex- a exhaustion cize it. Submission of Any sugges- proposal in and ists a case such concrete the Court as this. before plaintiff parties tion that a section must for discussion as focus judicial development. importantly, the exhaust state or administrative and [More procedures commencing plan adopted provide before a federal as the district will Supreme court suit was control buried court with remedy device for long ago. Court and for measur this Court See as well as a standard Pape, 1961, ing compliance ) Monroe v. It also facilitate will — 492; concept appellate planning L.Ed.2d McNeese review. The Education, Bd. of suited to case.2 is well Judge quotes opinion Gewin in Ken and decision district nedy City Assoc., approved Park Homes Inc. v. to relief. detailed order as Lackawanna, Here, 2 Cir. 436 F.2d 108 the district de- court found authority carefully fendants, for Ms the form of view we do de- not have a veloped with, relief “is for District Court”. to decree the dis- deal and judge Lackawanna the Second Circuit affirmed be anew. trict forced to start (con- Judge voluntarily, BROWN, Chief much been accom JOHN has R. plished curring concurring part in dis- in and and Town Shaw. A bi Judge opin- senting part racial committee formed in WISDOM’S been to ad to has mayor ion) respect vise council : with city services, and a black citizen has opinion the Court I in the concur city been elected to the council. Judge special concurrence Wisdom’s my think, parts view it A, B, D, E. I would be more desira- '(in ripeness”, deference, ble “the leave matter of the he overstates judge “finality” aspects. Federal Courts local district who is well known fairness, expertise, open But it is his redress. understand- are § county, ing, city, unqualified wrongs of a adherence the re- redress wrongs quirement board, state, not that all be or a citizens accorded a school equal protection county highway city engineer, the laws. Federal appellate supervisor, of utili- courts should exercise or the director utmost state care not to be too ties. meddlesomgi possession power mere does dic- through (While the can act State tate I its use. hold confident con- may these human bеar functionaries who distinguished judge, viction that titles, body that the it must clear still working cooperation in close with local spe- having response responsibility, municipal authorities, can and will reme- legal entity complaints, cific for the dy the evils which been found to involved, take cor- failed or refused to exist. As the late Justice Harlan Mr. light my rective The street action. Wyandotte observed in Ohio v. Chem- unequal inadequate, and block Corp., icals neighborhood, I can another but until a federal court should Judge, from a federal seek 1983 order § ambitiously grasp opportunity of Houston must least allow impose its notions of what should be good to turn me This sense. downJ done in case. In that na- case the good good nine- It It is federalism. problem obviously pollution, tional eighty-threeism. teen grave public importance, one of in- jurisdiction volved. The court had (with GEWIN, whom Circuit controversy but it decided not to ex- Judges, DYER, COLEMAN and Circuit power possessed. ercise The Court concurring join, dissenting part concluded: part): cannot, agreement here What has been said I am in substantial denigrating course, in the be taken as I and II what has been said sections slightest public importance of the opinion (the opinion). per the curiam underlying problem have expres Ohio would respectfully the dissent from increasing Reversing us the tackle. in the court sions section (cid:127)LH'"/wherein is (defendants) contamination of our environment appellees directs the sub manifestly a matter of fundamental plan in order mit a to the district court import urgency. is disparities and utmost What eliminate the which only dealt with considera- only apparent above are been found to exist. The respecting appropriate role tions the assigned opinion in for direct reason the this in Court can assume efforts ing require the district the mu court to blights. plan” eradicate such environmental nicipal authorities “to submit suggest that our com- We mean the fаct matter had “the received petence limited, necessarily not that in extended attention the district court.” kept our However, concern should be within recognizes opinion un bounds, added) (emphasis court, guidance narrow der of the district County, Montgomery States of tlie use of the United For an illustration planning concept desegregation 89 S.Ct. in school litigation culminating L.Ed.2d 263. in see extensive Topeka, L. v. Board Education of 91 S.Ct. 401 U.S. at 753, 99 L.Ed. 1083 U.S. 75 S.Ct. Ed.2d at 266. Wyandotte (1955). also Ohio v. See fashioning appropriate entirely Corp., supra. It is Chemicals applied, take court this should proper to direct the district court to (Ret.) in Clark from Mr. Justice opinion cue jurisdiction ap- tain propriate period for an of the case Kennedy Park Homes his Assoc., per- of time in order Lackawanna, City Inc. mit the officials of the Town Shaw 1970), (2d denied cert. F.2d 108 Cir. discharge responsibilities in their eradi- 1256, 28 L.Ed.2d cating prevalent discriminatory practices remarkably case is similar 546. That by specific unfettered and unrestrained Speaking at hand. the case appellate Dur- court decrees orders. . stated: Second Circuit Mr. Justice Clark ing period the actions of such accept City’s al- Even were we to subject to the close would be officials legation here discrimination court, present scrutiny of district ffaf thoughtlessness rather resulted from practices remedial continue without local City scheme, purposeful than action, court, having retained the district may escape plac- responsibility for jurisdiction, and enforce fashion should ing citizens its black under severe necessary remedy. the dis- When disadvantage justify. it which cannot good trict that effective court satisfied CORE, supra; Ala- Norwalk Southern ade- faith been made and efforts have Organization Spanish Speaking meda litigation achieved, quate this results City City, California, 424 of Union terminated.) may be City (9th 1970). F.2d 291 Cir. type of case which This is not provide sewerage must facilities indefinitely the fed- should continue plaintiffs conformity fashioning requiring eral courts Equal. Protection Four- Clause plans, to the same submission provide it as teenth Amendment and hearings approval court for thereon as to appli- any other soon as it does resulting disapproval, or gation liti- extended California, Oyama cant. appeals. and numerous (1948). 92 L.Ed. 249 particular this which manner in RONEY, Judge (with whom Circuit is done is the District Court. Judges CLARK, Circuit SIMPSON added). (Emphasis join, dissenting): 436 F.2d at ap- respectfully it fa because dissent pears this Court clear to me that (i inappropriate to consider it outline precedents in misapplied the established specificity dis- relief stand- this and created an unsound trict in the exercise fashion na- ard for matters of review of its sound and wise diseretion.^ln- ^ ture.1 deed, essentially na- local view problem presented, for the the offi- more no ture verbalizes The Court by plaintiffs ac- can cials of the Town complish best submitted data statistical prima facie presented neces- remedial measures than that sa^yj responsibility, But then In this case the racial discrimination. case of cases, desegregation prima con- like in facie school boards that treats primarily vio- proof the racial classification rests Town of Shaw of a clusive Equal Clause and its officials. Brown v. Board Protection lative by 483, justify a com- Topeka, 74 Education of 347 U.S. which defendants must 686, (1954); Brown pelling S.Ct. 98 L.Ed. interest. 873 state resolving manageable 1. in Justice Brennan’s discussion Baker v. standards and problems ques- political Carr, (1962) p. 217, at involve 369 U.S. 186 82 -which 691, 663, S.Ct. 7 L.Ed.2d demonstrates ‍‌​‌‌‌​‌‌​​​​​​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​‌​​​‌​‌​​‌‌‌‍tions. necessity judicially the discoverable

1179 enough tion, problems “Surely, was evidence which is related to the shifting proof prima the evi- of racial burdens of a facie case establish only question dence, prima a ease de- The facie discrimination. protection, equal is wheth- nial which in racial remains to be examined that possibly justification by compel- disparities requires can cases or not a er these any ling way, compelling interest, put justified by state be state another Shaw, showing requires that interests.” v. Town which the condi- Hawkins (5th 1286, “unequal Mississippi, protec- F.2d 1288 tion results in 437 that the 1971). compelling pur- tion” Cir. achieves state J pose.3 entirely de- the Thus the Court forecloses disprove opportunity fendants’ At the outset it seems to that we me prima of racial discrimination facie case recognize uniqueness, must inherent by preponderance The of the evidence J* Equal context, of eases Protection government law is clear that before involving municipal those which by justified action here should have to be pro require capital expenditures! showing compelling interest state municipal prop vision of services to the impact of the order to withstand erty largely question of residents is Equal Clause, must there first Protection system_.of-govern priorities which our finding discriminat- that the action be by ment should be determined conceives against their race.2 ed because of citizens responsive people. elected officials Court, my mind the En Banc To portray daily news media well original pan- adopting position of the every city having estab difficulties compelling interest el, has converted lishing priorities. It is doubtful such standard of evidence into a doctrine any priority could determination despoiled process- procedure has compelling in justified ever on well obliterate of law and could es cases laid down standard as terest given confused case. has in a truth '|lt pro classifica- doctrine.4 In prima of racial facie evidence fathered the Alabama, pretermit 22 of whether 389 U.S. 2. discussion 3. v. Coleman Cf. 3, 23, 2, p. equal ‘‘compelling (1967) p. 19 at interest” 88 S.Ct. iwotection character ‘testimony vintage,” itself 22: doctrine “recent “This L.Ed.2d analyzed by prima Harlan in of the denial facie case ized and Justice out а made Thompson, protection Shapiro Consti 394 which the his dissent v. Alabama, 658-663, (1969), pp. guarantees.’ v. Norris 89 S.Ct. 618 tution U.S. 581, 600, 579, appropriately 587, [, 1322, 22 55 S.Ct. L.Ed.2d could 591 294 U.S. applied evi case on absence of in a service 1074.] 79 L.Ed. wealth, Harper “suspect” adequate to criterion of adduced State dence Virginia Elections, case, petitioner prima 383 v. Board U.S. facie rebut 663, 1079, L.Ed.2d 169 have his 86 16 therefore entitled to conviction S.Ct. (1966) right” Carolina, North 376 or on a “fundamental reversed. Arnold v. 186, theory, Carr, 77;] [, 1032, 82 12 L.Ed.2d Baker v. 369 U.S. 84 S.Ct. U.S. 773 691, Rey [, (1962) Louisiana, 78 L.Ed.2d 663 v. 356 U.S. 584 S.Ct. Eubanks 7 991;] Sims, 533, 1362, 970, v. v. 2 Reece nolds 377 U.S. S.Ct. L.Ed.2d S.Ct. Georgia, [, (1964) ; 85, [right 12 L.Ed.2d 350 U.S. 87-88 vote] 535, Oklahoma, 77;] 167, 169, Hernandez v. Skinner v. 316 U.S. 100 L.Ed. [right [, 667, 1110, (1942) 475, Texas, 86 L.Ed. 347 U.S. 74 S.Ct. marry procreate] ; Shapiro 866;] Texas, 671, v. Hill v. L.Ed. Thompson, supra [right [, 1159, 1162, to interstate 62 S.Ct. ; Illinois, ] travel v. 1559.]” Griffin L.Ed. (1956) and 76 S.Ct. 100 L.Ed. 891 Douglas Illinois, McLaughlin Florida, 83 S.Ct. 372 U.S. 379 U.S. (1963) [right (1964); 9 L.Ed.2d 811 to have Lov S.Ct. ing Virginia, hearings]. criminal presented This case been solely ; (1967) us the basis of 18 L.Ed.2d 1010 Godwin, Jackson (5th ; 1968) racial That is all 400 F.2d 529 Cir. classification. although to, Virginia Elections, Harper evidence complaint itself the addressed Board of v. poverty asserted both race and 383 U.S. grounds ; Carr, (1966) relief. for Baker 369 U.S. streets, sewers, lights, say 'vision of water not does not This is to § given against provide re facilities, limited an avenue for relief un- and other sources, city simplwhas with constitutional in the of the action rendition to start understanding something municipal services, municipal im but an some As place./ problems priorities provements installed, of are re the of must serve originated, backdrop improved application paired, modernized, in as a for the it is given judicial process any Equal and for Protection Clause trinsic the that at being point unequal, a of consideration of whether those time will be services unequally con- probably-does served are victims of condition which serve the not stitutionally impermissible any compelling state action. While there interest.5 recognized compelling The ciding in de- in difference must could be no interest state precedential prior starting provision the of of in value with services the Legal segregat principles which serve well with cases. the white areas of a town case, in neighborhoods, in one not another. ed neither could there any compelling a interest to start state apply the com- determination to fThe particular place. if a other Even there is pelling the re- dictates state interest test compelling given priority, it reason for a practical purposes. Since sult all questionable, a is if this is tantamount picture progres- stop-action compelling law state interest.6 process is almost certain sive urban ^For require that the town must show a com services, municipal disparity in show pelling justify priorities interest to pre- upon to determine us incumbent making capital improve it establishes cisely disparity result is the whether that simply requires impossible.¡I ments proscription of action intended For the Courts to assume control of those Equal it is sub- Protection Clause before substituting merely-results priorities compelling interest test. mitted to the non-compelling priorities for one list of highlighted necessity care is another. sought by the plaintiffs, fact granted by En Banc equality a can is not case where /This damage irreparable to the Court, causes by invalidating re- be obtained law of the citizens fundamental ordering conduct, by real- human even to-govern themselves. locating pool expenditure cur- holding agree operational es- difference rent funds. The to a cannot remedy. principle It law that problem is more than as a tablishes compelling goes Disparity required apply ne- substance. limiting prima cessary facie result of factors test to a mere interest state distri- in the classification resources and case of racial time.^\ ; (1962) grant been L.Ed.2d 663 federal S.Ct. that a are told problem Reynolds Sims, approved to resolve hydrants. (1964) ; pressure gard fire 12 L.Ed.2d 506 Skin to water Oklahoma, 535, 62 ner v. Prattville, City Compare Hadnott (1942). 86 L.Ed. 1655 (M.D.Ala.1970) F.Supp. where popula- fully system property used assessmеnt 5. A mature with stable determining tion which can trend factor for installation resist current expansion might virtually compelled corporate limits, ap- services prima equality quantitative proach disproving priorities, facie basis on a thus race, probably disparity based but continued modernization case of qualitative inequality. Priest, 96 Cal. It necessitate Cal.3d Serrano (1971) fairly Rptr. 601, can be from assumed the record that 487 P.2d Hatfield, F.Supp. progress Shaw will continue Van Dusartz v. point 10-12-71) (D.C.Minn. the states where all ade- where citizens will have compelling quate, exactly equal, municipal state interest if could show equal financing system law- which was kind involved begin determining paving ly suit. Modern street did not educational coercive priorities disparities based until town but resulted in 1960. Prior had municipal sanitary no sewer services. We on wealth.

1181 requiring ly upon white, services bution of black and or even substan- capital principle tially expenditures. Such a so!' With the limited resources permits Equal improvement Protection Clause Shaw and the conservative system political policy citizens, entire swallow the for followed of its all government democracy local in state and there is no reason at this believe that procedural point everyone on a determination. in time would have services, absent racial discrimination^ Taking disparity that notice of services II. typical non-segregated many towns plaintiffs’ proof consisted almost (The Shaw, otherwise like there is rea- some dispar- solely of statistical evidence regard son to believe that without ity provision of mu- races in the between race, income, plaintiffs if the were of low capital expen- nicipal requiring services social, economic, with the educational ditures.] political characteristics which figures speak indicate, they scant would principle record would among in cas who from persuasively evоlved those would suffer in court was clearly disparity demonstrated services town it es where was among figures not no differ were with differences its citi- would racial 8 some There was zens.7 be of com- While little racial discrimination.7 judge street, what fort to man without a on which reasonable basis they drainage sewer, poor figures been what and a have with would sig- dis poor supply, racial have been absent water it is nonetheless would be- nificant to our of this case review crimination. accept cause we are asked to the statis- case, comparative was base no In this proof tics as discrim- conclusive racial argued aas in evidence submitted contrary to ination disparity all other reasons rea- law, Court nor matter of trigger compel- in order against any Nor hypothetical base. soned ling on To state interest test. reverse experience a clear conclusion. lead to does figures require seem to аlone would many America across towns There are hypoth- exclusion of reasonable neighbor- racially no identifiable plain- except esis that asserted great mu- disparities in hoods that tiffs. disparity nicipal fact of services—so point racial discrimina- alone does III. were no indication tion. There mu- per- proper racial discrimination it not'for the statistics ([Placing proportionate- nicipal spective, fall would are then bound the clear- Beto, (5th population 1 Cir. F.2d 366 constituted 7. Brooks v. but 37.3% juror single Negro grand 1966) registered voters.] of the [Not less than 1% Negro county Mississippi, in a ever served United State States 10% (S.D.Miss.1964), population.] F.Supp. rev’d 229 925 States, F.2d Alabama v. United L.Ed.2d aff’d, Mississippi’s (5th 1962), [Only 371 U.S. Cir. adult 717 Negro 5% registered population than [Less 9 L.Ed.2d was Negroes voting age were vote.] 10% Although Negroes registered Roadway Inc., Bing Express, vote. 444 F.2d they population, (5th 1971) [Among up the al- made Cir. 83% only registered hired the com- most 300 road drivers constituted 25% single Negrо.] pany, ex rel. United States Seals there was not a voters.] 1962), (5th Wiman, F.2d 53 Cir. v. Ironworkers United States Local (9th den., 1971) [Of some cert. F.8d 544 Cir. [Negroes black.] 3 were constituted 3720 union members qualified more those than 31% jury Although poverty im- service but less than of those was asserted as an 2% below, proper jury on classification the court rolls.] Edwards, virtually point, on the United States v. 333 F.2d record is silent argument appeal. (5th up dropped 1964) [Negroes Cir. made ly provided sissippi, (N.D.Miss. erroneous standard of review F.Supp. 303 Although by 52(a), 1969), permit Rule we does not reversal under F.R.Civ.P.^ clearly from have held that straining impact are free the re- erroneous of standard review. clearly light erroneous of We must in view the evidence simply rule where ultimate fact is and with all reasonable most inferences by legal processes judgment the reasoning from, of result reached favorable to the below. Wheel interpretation Holland, or the er (5th of v. 218 F.2d 482 Cir. significance evidentiary legal 1955); Company thе facts,9 Firemen’s of Insurance concerning Newark, ‍‌​‌‌‌​‌‌​​​​​​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​‌​​​‌​‌​​‌‌‌‍Jersey facts the rendition New v. Robbins Coal municipal by 1961), Company, (5th of are sim- services 288 F.2d 349 Cir. ply complex social, of that not kind. den. 368 U.S. cert. S.Ct. economic, scientific, geographical, Boeing (1961); cf., 7 L.Ed.2d 77 v.Co. political input 1969). required Shipman, (5th to es- in order 411 F.2d 365 Cir. priorities expenditure might tablish in of That we reach different conclu public justify funds casts the determination as sion as a trier of fact not does differing priorities Corp. those into a mold on reversal review. Zenith Radio substantially Research, Inc., the kind ultimate from of v. Hazeltine fact to which that rule addresses itself. L.Ed.2d 129 only (1969). Here the district court heard testimony personally all the but viewed V. findings Town whole of Shaw. His say, Needless to if this case decides of fact should not be disturbed on review that every there is a constitutional clearly unless erroneous. regardless equal citizen race to of Judge municipal services, as indicated IV. concurring opinion, much time Wisdom’s being considering (It race wasted being virtually impossible to make unequal of those who have services. priority determinations in terms com disparity as to race would be irrelevant. pulsion, justification a rational is all that everyone right to If has a constitutional required prima can be facie meet equal services then class broadens Although factual the law is clear caseS^ races, both in Shaw there because include figures that in the face which indicate less are both and blacks who have whites prima facie discrimina racial case of various than general accept tion the Court as then kinds. It would make no difference by public sertions of non-dis officials what the race of the citizen without evi crimination but must look to other dence, However, I do not understand service. Alabama, Norris v. so based decision Court (1935); Her 79 L.Ed. 1074 principleasserted nor that Texas, nandez v. plaintiffs prin- in this case./ The correct (1953), evidеnce 98 L.Ed. 866 ciple appear citi- would compelling need not be nature. zen has a be deniedjservices case kind it should be sufficient right(not race, denial of and that because prima facie of racial meet only aas have occurred services must public discrimination that actions of all resolution result nonracial upon rested rational considera officials poli- competing influences tions, irrespective This is the of race. self-government) tics of applied trial standard that was judge! case, contrary disposition ei of this A liability is not indi ther as to A read fair evaluation of the evidence court, as Norwalk CORE against findings such cases cated trial Agency, F. Redevelopment Norwalk Memorandum set forth in detail his Kennedy 1968), (2nd Park Shaw, 2d Opinion, Mis- Cir. Town Hawkins v. 1954). Scofield, (5th Corporation F.2d 217 Cir. Oaks Galena Association, City discrimination, Homes Inc. Lack racial pur- and for the York, awanna, (2nd pose New devising 436 F.2d 108 appropriate of then rem- 1970), City Cir. Hadnott of Pratt proven edies directed effects ville, F.Supp. (M.D.Ala.1970). pro- the constitutional violation against tection future violations. pleadings Norwalk was decided di- specific project rected to a urban renewal CLARK, (with alleged equal protection Circuit denial of whom SIMPSON, Negroes Judge, displaced joins, and Circuit dissent- Puerto Ricans ing) by Presumably : program. proof the of allegations precede ap- these plication would the of The en banc court’s reaffirmance compelling of the state interest original panel opinion the embarks this test. surely circuit on an- what must become weary journey Kennedy other to an inefficient Park Homes affirmed lower remedy fully findings, supported by problem that insufficient court ord, a rec- find in cannot a solution in the courts. that racial motivation resulted depriving plaintiffs observes prop- Wisdom is when he of the of use concurring erty housing denying by in that of project Town Shaw fоr a the Rather, present unique this does not case. them It was after sewers. typical finding of compelling Shaw is of thousands towns that state interest applied. of in this nation. hundreds cities test was gathering any An of examination urban simply permitted of evidence Hadnott people highlight inequalities of disparity to over- rational reasons among places they where live. prima come the facie of discrimina- case degree poverty affluence of each of except municipal in tion all the community family uni- in almost public which, by park, in a in same formly in its home. Whether reflected proof, of discrimination was standard good bad, it one such variance counts found. living hallmark of our in standards is a VI. liberty. in It inheres American egalitarian Only society. in free some devising remedy, as as decid- well equal Utopia sur- live in do all families liability, adopted ing this Court has recognize roundings. this A failure to protection” “proportional doctrine heart mistake fact at the of the supersede the constitutional mandate choosing in course court makes equal protection. in- This case would today. launches municipal if each service dicate that provided equal percentage of an both Judge Roney aptly demonstrates As “deny races, then would not Shaw clearly dissent, erro- Part III of his jurisdiction person its within here, j applies District rule neous Judge approach protection This of the laws.” refusing wrong clearly was not precedent. The has no authoritative findings upon cast his statistics to base may “equalization” directed the Court essence, he found into a mold. In racial remedy may of racial effects people Town of that because bring con- Shaw into discrimination and living that varied had standards Shaw goes line. Such a stitutional according financial individual to their rather discrimination the evidence of values, some social conditions its effect. than to required occupied properties which them municipal permitted level a lower agreed that if I with the Court Even dis- properties. These relief, than other service plaintiffs are entitled demand formed in need similarities to the district remand the case would finding taking of his basis ad- purpose such court for against in- necessary discriminated had not fathers evidence ditional race, de- either exactly on the basis findings services habitants what make thought- through arbitrary liberately or place it not were now be would sociological why problems approach is not that under-lie this That lessness. clearly recognized preponderant citi- number of black has been error through Shaw, Mississippi poorer on zens abandonment are

plaintiffs their principal of their than the whites who there are facts basis live appeal of a this life, dis- albeit for a court—that uncomfortable ones trial contest before justice. upon For nation concerned social wealth. was based crimination context, However, more alone no service these statistics least in incompatible constitutionally impermis- demonstrate poverty claim is providing sible racial discrimination in distinctions.] .racial support Mississippi Shaw, civic than shows overview J^?An readily showing in would the same made physical looked at the of fact trier Chicago, Angeles, Illinois Cali- or Los municipal services characteristics Newark, Houston, fornia or Texas or the Town provided the inhabitants Jersey. They New cannot combined the actions and concluded ever-present less with the well-developed fact that the gov- providing public officials com- areas of urban proper- various the services ernmental many munity mu- level of receive lower corporate limits ty within its owners nicipal for make out a case functions to upon considerations rational rested racial discrimination there wherе is none. involved— varying physical factors the race; appeal this on irrespective of worse, What’s this travel toward disparities these that saw court hope wrong false foot. starts the by more grouped show race could be Negroes incorrectly court faulted district is mu- lesser received than whites legal applying, an erroneous standard. nicipal statistical services. From this holding simply This will not withstand possibility concluded the this court that impartial analysis Bell demon- Yet, was in in reach- trial court ing error. paragraph strated second of his determination, its the district court original concurring opinion F.2d at 437 acknowledged study expressly and con- 1293, Judge Roney’s dis- See also racially very com- sideration of the same opinion sent. The of the district court partmented information statistical which legal expressly prece- is on correct based en banc court finds decisive. Any necessarily dent. reversal should court that the lower difference upon have been based our demonstration ignore the situations fused to dissimilar clearly erroneous resolution of housing geography, patterns, anti- approach That this is the correct facts. streets, quated limited finances tacitly by least conceded conservative, unprogres- of a existence panel opinion court which en banc resolving municipal policy in sive adopts, opinion spent since that far more proved plaintiffs of whether basic issue length majority attempt- than of its by the unconstitutional discrimination ing dif- rationalize inferences factual defendants. trial ferent from those reached court. determination The district court’s not a basis racial discrimination was symptom error Another which municipal equality lack services pervades approach appears in the court’s throughout support- Town of majority the opinion from the en banc sentence rational ed in this recоrd substantial declares: which explain quality considerations which Moreover, judgment facts in our quantity present municipal func- sup- certainly squarely us before plain part to on our tions. It is error logical port infer- reasonable support upset factual district neglect in- solely ence there here because of decision court’s volving ability disparities dis- racial

plaintiffs’ clear overtones of cast these mold. The economic a racial administration into crimination governmental affairs of the town of projects es specifically dealt with and (Emphasis mine.) Shaw .... also spectrum for that wide of services and facilities that aren’t even mentioned. The mere fact that the court believes opinion Our many leaves too areas in “support” appellate can be found in the these classes wide-open permit too in- drawing differing record for inference telligent planning. requiring city While of fact from that the district drawn officials to devise and the district court justify court does not In or- reversal. approve program “eliminate wrong judge der for the district to be disparities,” only give we not no real facts, on the this court must be able to guidance as expected to what but say that the record demon- ‍‌​‌‌‌​‌‌​​​​​​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​‌​​​‌​‌​​‌‌‌‍before us impediments development create to the contrary finding strates the dis- programs effective in the areas we clearly trict court to be erroneous. On discuss. point, panel opinion this same “ example: For paving As to affirms, the en banc court . stated: —Does . pave enough intend for the adequate this court has standards to de- inadequate streets of width in fairly termine by Negro the areas inhabited citizens to discriminatory been allocated in a length of similar narrow streets says manner.” This likewise far too paved neighbor- which were in white A little. determination of the existence 1930s, hoods in the or should Shaw now “adequate to determine standards plan to property condemn sufficient fairly” finding wrong that a fact could be Negro neighborhoods to construct a mod- provide appel- does not the basis for an system ern street in those areas ? late reversal on A the facts. careful analysis sanitary demonstrates that this court As to city sewers—Can the simply misleading comply has taken by constructing the same with our wishes approach by sanitary sewerage statistical tendered collection lines plaintiff reject- having which the plumbing, district houses no indoor or ed, erroneously city adopt housing has arrived a “proper must the a finding of fact different from that made code”? by responsi- the court vested with this drainage As to surface suffi- it—Is bility. city cient for the to construct surface drainage lowlying water structures remitting Mr. and the Hawkins equal areas which will be to the drain- members of his a at the class to solution age city; structures in other areas of the box, dangling ballot rather than the car- legаl or must some new route be found by judicial injunction rot of reform be- empower city engage to major in the them, fore the district court followed dredg- improvement channel practicality. of wisdom and course ing city outside its limits the dis- which reality plan Hard fore-ordains that no key trict court found was the real can be devised which solve the com- will flooding elimination of areas these plex “equalizing” municipal variables of essentially town; of this or flat ap- services. This court’s broad-brush city required be to undertake land proach guarantees to this case such fills the lower areas to correct these generally By fruitless result. ing describ- deficient elevations? the service areas the court uses justify overturning sup- the district court’s As to water mains—Must water finding, ply multiplied present fact sized house this court mains be problems planning equality, function for the count basis to reach impos- they anticipated requires, if it has rendered it sized on basis of again, Its Shаw’s finite. demand for water? Here sible. resources are daily ought public explicit serv- as to whether a new needs must be met to be long-range anticipate housing required man- ants who must would code using quirements, facil- of class- residential both for the handful date more water holding simple sinks, Now ities, crimination tubs i. e. toilets. way require perfect tois be advised should is also the time develop program any priorities to “elim- plan’s place list of town disparities.” new proposed inate construction for the large storage well water tank and water and those set For all these reasons delayed already litigation has which by concur, I Roney, in out which years. two dissent. required to all basis On a broader cer- ingredients, court should

plan our explicit tainly whether make now proportionately ade- is to

criterion

quate individual service to the town’s they de-

parcels property as are now ; upon

veloped service based occupants; property

race of the something yet from these.

different Lynch v. Household Finance FUQUA, While Beverly L. In the Matter Bankrupt. Corp., 405 U.S. 424, decided March L.Ed.2d Trustee, Appellee, JOHNSON, Arthur G. ju- academic renders distinсtion absolutely purposes, risdictional there is way escape that this no the conclusion FIRST BANK OF HOW- NATIONAL rights purely property It is ARD, case. Claimant-Appellant. requires the mu- property No. 71-1560. nearly nicipal instance service Appeals, United States Court and, brought interest- this record out Tenth Circuit. ingly enough, we have no information June properties race of the owner occupants. involved, only the race if exist A novel situation indeed would plan required mu- to furnish our parcel property

nicipal services to property did want owner Yet this not afford to utilize.

could probable only possible, it is sult is

here. things

In our haste to that all mandate ought equal, pause Shaw become changes require

to realize that we

living patterns property utilization property can- that the individual owners time,

not afford to use. At the same generalized adoptedi approach

under the failing plan up bring\ wind could

meaningful very improvements to the brought

parties These who this action. highlight observations are meant finding approaching need property problems on

solutions for such specific basis. rather ‍‌​‌‌‌​‌‌​​​​​​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​‌​​​‌​‌​​‌‌‌‍than wholesale analogy adopting

We err equalization municipal akin desegregation jury dis-

to school

Case Details

Case Name: Andrew Hawkins v. Town of Shaw, Mississippi

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 27, 1972

Citation: 461 F.2d 1171

Docket Number: 29013

Court Abbreviation: 5th Cir.