GILMORE ET AL. v. CITY OF MONTGOMERY, ALABAMA, ET AL.
No. 72-1517
Supreme Court of the United States
Argued January 15-16, 1974—Decided June 17, 1974
417 U.S. 556
Joseph J. Levin, Jr., argued the cause for petitioners. With him on the briefs was Morris S. Dees, Jr.
Joseph D. Phelps argued the cause for respondents. With him on the brief were Drayton N. Hamilton and Walter J. Knabe.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The present phase of this prolonged litigation concerns the propriety of a federal court‘s enjoining a municipality from permitting the use of public park recreational facilities by private segregated school groups and by other nonschool groups that allegedly discriminate in their membership on the basis of race. We granted certiorari to consider this important issue. 414 U. S. 907 (1973).
I
Petitioners are Negro citizens of Montgomery, Alabama. In December 1958, now over 15 years ago, they instituted this class action to desegregate Montgomery‘s public parks. The defendants are the city, its Board of Commissioners and the members thereof, the Parks and Recreation Board and its members, and the Superintendent of the Parks and Recreational Program.
By their original complaint, the petitioners specifically challenged, on
In 1970, the petitioners sought to reopen the litigation. They filed a motion asking, among other relief, that the respondents be cited for contempt “for deliberately avoiding and violating this Court‘s Judgment and Order in this case.”3 The motion contained allegations that some of the municipal parks had been reopened “in such a manner to avoid the total and full integration of said parks“; that the city had conspired with the Montgomery YMCA to segregate swimming and other recreational facilities and programs; that recreational facilities were unequally allocated as between white and Negro neighborhoods; and that the city discriminated in its employment of personnel in recreational programs. The basis for these claims arose from other, separate litigation initiated in 1969 and resulting in the granting of affirmative relief to the plaintiffs in that suit. See Smith v. Young Men‘s Christian Assn., 316 F. Supp. 899 (MD Ala. 1970), aff‘d as modified, 462 F. 2d 634 (CA5 1972). In that action the District Court found that the “coordinated effort” of the city and of the YMCA, 316 F. Supp., at 908, and an agreement between them, reached shortly before the closing of the city parks and the entry of the court‘s 1959 decree, had effectuated “the perpetuation of segregated recreational facilities and programs in the City of Montgomery,” id., at 909, and that it was “unmistakably clear that its purpose was to circumvent the Supreme Court‘s
“[T]he YMCA, as a result of the cooperative agreement, has been performing a statutorily declared ‘public function‘; the Montgomery Park and Recreation Board has, in effect, transferred some of its statutory authority and responsibility to the YMCA, thereby investing the YMCA with a municipal character; and therefore the YMCA has been serving as a municipal rather than a private agency in assisting the Park Board in providing recreational programs for the city.
The modification by the Court of Appeals related only to the disapproval of a provision in the District Court‘s order directing a specific Negro-white ratio in the YMCA‘s board and executive committee. No review was sought here.
The claims raised by the petitioners in their 1970 motion were settled by agreement dated January 29, 1971.5 On July 29, the respondents filed their first written progress report. On September 8, the petitioners filed a “Motion for Supplemental Relief.” App. 15. This motion forms the basis for the present phase of the litigation. The petitioners complained that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. They requested injunctive relief against “the use of City owned and operated recreational facilities by any private school group, club, or organiza-
The District Court granted the petitioners the relief they requested. 337 F. Supp. 22 (MD Ala. 1972). The court reasoned that Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system. The court, consequently, enjoined the city and its officials “from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy.” Id., at 26. The court went on, however, with sparse findings and brief discussion, and similarly enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities “by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy.” Ibid.6
On appeal, the Court of Appeals reversed in part and remanded the case with directions. 473 F. 2d 832 (CA5
“The injunction issued by this Court does not prohibit the City of Montgomery from permitting non-exclusive access to public recreational facilities and general government services by private schools or school affiliated groups.”
The plaintiffs petitioned for certiorari; the defendants did not cross-petition.
II
The Equal Protection Clause of the
A
The Court of Appeals affirmed the District Court insofar as the latter enjoined the “exclusive possession of public recreational facilities such as football stadiums, baseball diamonds, basketball courts, and tennis courts for official athletic contests and similar functions sponsored by racially segregated private schools.” 473 F. 2d, at 836-837. The boundaries of this “exclusive” use approach, however, are not self-evident. We find the concept helpful not so much as a controlling legal principle but as a description of a type of use and, in the context of this case, suggestive of a means of allocating public recreational facilities. The term “exclusive use” implies that an entire facility is exclusively, and completely, in the possession, control, and use of a private group.7 It also implies, without mandating, a decisionmaking role for the city in allocating such facilities among private and, for that matter, public groups.
Upon this understanding of the term, we agree with petitioners that the city‘s policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, “enclaves of segregation” and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitu-
Instead of prompt and orderly compliance with the District Court‘s mandate, however, the city of Montgomery engaged in an elaborate subterfuge to anticipate and circumvent the court‘s order. Segregated recreational programs continued to be presented through the conveniently cooperating private agency of the local YMCA. All public swimming pools were closed allegedly to prevent the mixing of races. Facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. In light of these facts, made part of the record in this case,8 it was entirely appropriate for the District Court carefully to scrutinize any practice or policy that would tend to abandon to segregated private groups facilities normally open to members of all races on an equal basis. Here, the exclusive use and control of city recreational facilities, however temporary, by private segregated schools were little different from the city‘s agreement with the YMCA to run a “coordinated” but, in effect, segregated recreational program. Such use and control carried the brand of “separate but equal” and, in
Particularly important is the fact that the city‘s policies operated directly to contravene an outstanding school desegregation order. See Carr v. Montgomery County Board of Education, 232 F. Supp. 705 (MD Ala. 1964); 253 F. Supp. 306 (1966); 289 F. Supp. 647 (1968), aff‘d as modified, 400 F. 2d 1 and 402 F. 2d 782, 784, 787 (CA5 1968), rev‘d and remanded sub nom. United States v. Montgomery County Board of Education, with directions to affirm the judgment of the District Court, 395 U. S. 225 (1969).9 Certainly, the city‘s officials were aware of this order and were responsible for seeing that no actions on their part would significantly impede the progress of school desegregation in the city. Cooper v. Aaron, 358 U. S. 1 (1958); Green v. County School Board of New Kent County, 391 U. S., at 437-438; Alexander v. Holmes County Board of Education, 396 U. S. 19, 20 (1969). Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. “[T]he constitutional rights of children not to be discriminated against... can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.‘” Cooper v. Aaron, 358 U. S., at 17. This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is consti-
Here, the city‘s actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs. The city‘s provision of stadiums and recreational fields resulted in capital savings for those schools and enabled them to divert their own funds to other educational programs. It also provided the opportunity for the schools to operate concessions that generated revenue. We are persuaded, as were both the District Court and the Court of Appeals, that this assistance significantly tended to undermine the federal court order mandating the establishment and maintenance of a unitary school system in Montgomery. It therefore was wholly proper for the city to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools and by groups affiliated with such schools.
B
Although the Court of Appeals ruled out the exclusive use of city facilities by private schools, it went on to modify the District Court order “to make clear that the City of Montgomery is not prohibited from permitting nonexclusive access to public recreational facilities and general government services by private schools or school affiliated groups,” 473 F. 2d, at 840, or from permitting access to these facilities by private organizations that have a racially discriminatory admissions policy. Id., at 839.
It would be improper to determine at this stage the appropriateness of further relief in all the many and varied situations where facilities are used in common by school groups or used exclusively or in common by private groups. It is possible that certain uses of city facilities will be judged to be in contravention of the parks desegregation order or the school desegregation order, or in some way to constitute impermissible “state action” ascribing to the city the discriminatory actions of the groups. The record before us does not contain sufficient facts upon which to predicate legal judgments of this kind. The questions to be resolved and the decisions to be made rest upon careful identification of the different types of city facilities that are available and the various uses to which they might be put by private groups.10
Relief would also be appropriate if a particular use constitutes a vestige of the type of state-sponsored racial segregation in public recreational facilities that was prohibited in the parks decree and likewise condemned in Watson v. Memphis, 373 U. S. 526 (1963). See also Dawson v. Mayor and City Council of Baltimore, 220 F. 2d 386 (CA4), aff‘d, 350 U. S. 877 (1955); Muir v. Louisville Park Theatrical Assn., 347 U. S. 971 (1954); Holmes v. City of Atlanta, 350 U. S. 879 (1955); New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958). For example, the record contains indications that there are all-white private and all-Negro public Dixie Youth and Babe Ruth baseball leagues for children, all of which use city-provided ballfields and lighting, balls, bats, mitts, and other aid. Were the District Court to determine that this dual system came about as a means of evading the parks decree, or of serving to perpetuate the separate-but-equal use of city facilities on the basis of race, through the aid and assistance of the city, further relief would be appropriate.
The problem of private group use is much more complex. The Court of Appeals relied on Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), in concluding that the use of city facilities by private clubs did not reflect a “symbiotic relationship” between government and those groups so as to constitute state action. 473 F. 2d, at 838-839.
We feel that Moose Lodge is not fully applicable here. In that case, we generally followed the approach taken
“Owing to the very ‘largeness’ of government, a multitude of relationships might appear to some to fall within the Amendment‘s embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present.” 365 U. S., at 725-726.
In Moose Lodge the litigation was directly against a private organization, and it was alleged that the organization‘s racially discriminatory policies constituted state action. We held that there was no state action in the mere fact that the fraternal organization‘s beverage bar was licensed and regulated by the State. In contrast, here, as in Burton, the question of the existence of state action centers in the extent of the city‘s involvement in discriminatory actions by private agencies using public facilities, and in whether that involvement makes the city “a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the
If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation. Here, for example, petitioners allege that the city engages in scheduling softball games for an all-white church league and provides balls, equipment, fields, and lighting. The city‘s role in that situation would be dangerously close to what was found to exist in Burton, where the city had “elected to place its power, property and prestige behind the admitted discrimination.” 365 U. S., at 725. We are reminded, however, that the Court has never attempted to formulate “an infallible test for determining whether the State... has become significantly involved in private discriminations” so as to constitute state action. Reitman v. Mulkey, 387 U. S., at 378. “‘Only by sifting facts and weighing circumstances’ on a case-by-case basis can a ‘nonobvious involvement of the State in private conduct be attributed its true significance.‘” Ibid., quoting Burton, 365 U. S., at 722. This is the task for the District Court on remand.
We close with this word of caution. It should be obvious that the exclusion of any person or group—all-Negro, all-Oriental, or all-white—from public facilities infringes upon the freedom of the individual to associate as he chooses. MR. JUSTICE DOUGLAS emphasized this in his dissent, joined by MR. JUSTICE MARSHALL, in Moose Lodge. He observed: “The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires.” 407 U. S., at 179-180. The freedom to associate applies to the beliefs we share, and to those we consider reprehensible. It tends to produce the diversity of opinion that oils the machinery of democratic government and insures peaceful, orderly change. Because its exercise is largely dependent on the right to own or use property, Healy v. James, 408 U. S. 169, 181-183 (1972), any denial of access to public facilities must withstand close scrutiny and be carefully circumscribed. Certainly, a person‘s mere membership in an organization which possesses a discriminatory admissions policy would not alone be ground for his exclusion from public facilities. Having said this, however, we must also be aware that the very exercise of the freedom to associate by some may serve to infringe that freedom for others. Invidious discrimination takes its own toll on the freedom to associate, and it is not subject to affirmative constitutional protection when it involves state action. Norwood v. Harrison, 413 U. S., at 470.
The judgment of the Court of Appeals is therefore reversed in part. The case is remanded to that court
It is so ordered.
MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
Although I am in general agreement with the views expressed in my Brother WHITE‘S opinion, I wish to address certain other considerations which I believe should govern appellate review of the order entered by the District Court in this case. That court, which has an unfortunately longstanding and by now intimate familiarity with the problems presented in this case, issued the supplemental relief at issue here in response to a motion by petitioners bringing to its attention the practice of the city of Montgomery of allowing private schools and clubs with racially discriminatory admissions policies or with segregated memberships to use football facilities maintained at city expense. For all that appears in the record, this practice, and the related practice of allowing private segregated schools and clubs to use baseball fields, basketball courts, and athletic equipment maintained and purchased at city expense, were the only problems before the District Court and the only problems intended to be cured by its supplemental order.
Both the Court of Appeals and this Court, rather than limiting their review of the order in conformity with its intended scope, have sought to project the order to a wide variety of problems not before the District Court—including so-called nonexclusive access by private school groups or nonschool organizations to zoos, museums, parks, nature walks, and other similar municipal facilities—and to review the order as so projected.
By rendering an advisory opinion on matters never presented to the District Court, the Court of Appeals
Since I find the District Court‘s order a permissible and appropriate remedy for the instances of unconstitutional state action brought to its attention, I would sustain and reinstate its order in its entirety.
MR. JUSTICE BRENNAN, concurring in the judgment.
The Court today affirms the Court of Appeals’ judgment insofar as it affirmed paragraphs 1 and 2 of the District Court‘s order, ante, at 563-564, n. 6, as applied to enjoin respondents from permitting private segregated school groups to make “exclusive use” of Montgomery‘s recreational facilities. Unlike the Court, I do not think that remand is required for a determination whether certain “nonexclusive uses” by segregated school groups should also be proscribed, for I would also sustain paragraphs 1 and 2 insofar as they enjoin any school-sponsored or school-directed uses of the city recreational facilities that enable private segregated schools to duplicate public school operations at public expense.
Norwood v. Harrison, 413 U. S. 455 (1973), struck down a state program which loaned textbooks to students without regard to whether the students attended private schools with racially discriminatory policies. Finding that free textbooks, like tuition grants to private school students, were a “form of financial assistance inuring to the benefit of the private schools themselves,” id., at 464,
Whether it is necessary to go even further and enjoin all school-sponsored and school-directed nonexclusive uses of municipal recreational facilities—as would my Brothers WHITE and DOUGLAS—is a question I would have the District Judge decide on remand. Private segregated schools are not likely to maintain their own zoos, museums, or nature walks. Consequently, permitting segregated schools to take their students on field trips to city facilities of that kind would not result in a direct financial benefit to the schools themselves. An injunction against use by segregated schools of such city facilities would be appropriate, in my view, only if the District Court should find that the relief is necessary to insure full effectuation of the Montgomery desegregation decrees.
I agree with the Court‘s vacation of the Court of Appeals’ judgment reversing paragraphs 3 and 4 of the District Court‘s order relating to segregated nonschool groups,
“[T]he city‘s policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, ‘enclaves of segregation’ and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional duty to eliminate every ‘custom, practice, policy or usage’ reflecting an ‘impermissible obeisance to the now thoroughly discredited doctrine of “separate but equal.” ‘... This obviously meant that discriminatory practices in Montgomery parks and recreational facilities were to be eliminated ‘root and branch,’ to use the phrase employed in Green v.
Surely, respondents’ failure to extirpate “enclaves of segregation” created by “exclusive use” of city recreational facilities by private nonschool groups is no less a violation of the city‘s affirmative duty to desegregate the parks than its proved failure to eliminate “enclaves” created by the “exclusive use” of such facilities by school groups. Thus, unlike the Court, I see no reason for deferring an immediate expression on the significance of the city‘s involvement in the private discrimination of the nonschool groups, see ante, at 574, pending a more fully developed factual record. The justifications for finding that “exclusive use” by school groups violated the 1959 parks desegregation order plainly also require that, if private nonschool groups are in fact making “exclusive use” of municipal facilities, these uses, too, be found to violate the 1959 decree. In that circumstance, the unconstitutional “state action” of the respondents consists of their continuing racially discriminatory policies and practices that frustrate and impede the dismantlement of Montgomery‘s de jure segregated parks.
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS joins, concurring in the judgment.
I concur in the Court‘s judgment except that I would sustain the District Court not only to the extent the Court of Appeals affirmed its judgment but also insofar as it would bar the use of city-owned recreation facilities by students from segregated schools for events or occasions that are part of the school curriculum or organized and arranged by the school as part of its own program. I see no difference of substance between this type of use and the exclusive use that the majority agrees may not be permitted consistent with the Equal Protection Clause.