Hazel Palmer v. Allen C. Thompson, Mayor, City of Jackson

BROWN, Before JOHN R. Chief Judge, RIVES, WISDOM, TUTTLE, GEWIN, BELL, THORNBERRY, COLE MAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, DYER and Cir Judges.* cuit * Judge deceased, participated Clayton, February 5, 1968, prior now and decision on expressed in the decision of this case and last his illness which disabled him opinion participation his written concurrence further or action. Judge:

RIVES, doing, 373.1 we search Circuit So further facts and circumstances. arguments on rehear- The briefs and First, should be noted that ing to the been confined en banc have findings original entered opin- district court’s point first discussed hearing plaintiffs’ applica- ion; is, City of to whether temporary injunction. tion There- equal protection of Jackson denied the parties stipulated: the by closing after of the the to laws swimming pools. The “ all of its * * * that action and this be by findings court of fact the district hereby the the same is submitted the point forth in on set this were on merits for final decision Court convenience, original opinion, and, for answer, affi- complаint, on the and again quoted: are davits filed and submitted heretofore by parties, the full and and on City on closed all of Jacks “The hearing complete afforded operated heretofore swimming pools and owned parties, parties had at which all following entry by it in any opportunity all offer and judgment by declaratory this Court desired, on this evidence and Court’s Thompson, 206 in the case of v. Clark Sep- opinion letter filed herein dated F.Supp. 539, F.2d affirmed 313 14, 1965, tember and on Court’s 951, 84 S.Ct. den. cert. findings separate and conclu- fact No swim- 11 L.Ed.2d 312. by opened sions of law filed herein this Court ming have facilities been in connection this Court's order with any either race since said citizen of overruling plaintiffs’ application for City not time, does and Council injunction. temporary any operate reopen or intend swimming inte- on an facilities these “IT IS STIPULATED FURTHER personal safety grated basis. agreed judgment that final and the main- of thе and the citizens foregoing herein on the be entered would be and order law tenance hearing without and without further operation endangered by any offering or further addi- integrated swimming pools on an tional evidence herein.” pools eco- not be These could basis. upon then, district nomically manner. operated in that findings fact, judg- entered swimming same final Although facil- closed, being plaintiffs are not entitled ment that the by ities owned particularly to relief. note that all properly In addition maintained. parties agreed they that have “had an swimming closing owned facilities opportunity any offer evi- it, by its lease cancelled cover- dence desired.” pool ing the Woods Leavell in 1964.” Thompson, of Clark v. case declaratory rehearing court, by we observe would cited district On this judgment entered, Supreme of the “That each the admonition had been right “generalizations plaintiffs con- of do not decide the three has a sifting ‘Only by unsegregated facts use ‍​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌‌‍of recrea- cases. crete (Burton weighing of the of Jackson.” circumstances’ tional facilities Authority, supra Parking Wilmington affirmed After decision had 856, per at 722 curiam this Court and certiorari 715], [365 [81 Court, zoo, Supreme 45]) wheth- denied can we determine L.Ed.2d parks, Amend- ex- Fourteenth all recreational er of the the reach particular pools opened cept to the case.” use to a were ment extends pools Newton, and blacks alike. The whites Evans only L.Ed.2d evidence as to closed. Mulkey, effect, To like see Reitman v. however, integrated was, for such basis. and motives reasons Mayor and of the no evidence that it reached decision affidavits contained Department impede in an effort efforts further of the Director integrate. quote from to Nor did the Recreation. We court find Parks and integra- Mayor’s to chill intent down the affidavit: slow To tion of other facilities. recreational safety “Realizing personal contrary, Mayor’s as the affidavit City and citizens of the of all of the desegre- states, completely those were law order the maintenance gated and made available all citizens prohibit swim- would City regardless race. basis, ming integrated pools on an they were closed because could realizing could the said operated economically safely be economically operated an in- integrated basis. Is that a denial tegrated the de- basis, made protection equal of the laws? subsequent case cision to Clark operated pools close all owned so, plaintiffs If then the must of races. to members both “ * * prevail, law and order City thereby offer decided not to * * * preserved by to be not facility type that of recreational Negro depriving the children of their any citizens, of its and it has not done rights.”2 constitutional Desirable any reopen so and does not intend economy government important is pools. of said preservation public of is the “All other recreational facilities accomplished “this aim peace, cannot be completely desegregated and have been rights deny laws or ordinances which been all citi- have made available to protected by or Con created the federal regardless zens of the of race.” 3 principle be stitution.” For that applicable, however, that it must be held was the same The Director’s affidavit of the result because supplemented by a second effect and was they operated safely cannot or eco be stating average annual affidavit integrated nomically on an de expense basis operating of the and revenue protection prives equal of 1962, 1960, of years pools for the 1961 and simply opinion law. our that appears that there was which average true. $11,700.00. loss of annual The affidavit concluded: “that operation swimming pools is of finan- of Jackson would suffer severe public function in an essential attempted operate if it said cial loss elections,4 of sense as same conduct them, integrated pools, or town,5 governing company aof basis.” provision operation operation or for the operation utility,6 True, of a or the decided to close financing operate on an rather than to them schools.7 Aaron, 1958, 16, Cooper 1, 2. v. 358 6. Utilities Com’n District U.S. Public 1952, 451, 1409, Poliak, 1401, 5, v. 343 78 S.Ct. 19. U.S. Columbia 813, 1068; v. L.Ed. Burton 72 S.Ct. 96 Authority, Warley, 1917, 60, Wilmington Parking 1961, v. 365 3. Buchanan 245 U.S. 715, 724, 856; 81, 16, 20, v. S.Ct. 62 L.Ed. U.S. 81 S.Ct. Boman 38 149. 1960, Co., Birmingham 5 Cir. Transit Morgan, Condon, 1932, 73, 531; v. 5 4. v. 286 52 F.2d Baldwin Nixon 280 484, 984; 1961, 750, All 287 F.2d S.Ct. 76 L.Ed. Smith v. Cir. 1944, 649, 757, wright, 64 321 U.S. S.Ct. Education, Terry 987; Adams, 347 v. L.Ed. v. 7. Brown Board 88 483, 493, L.Ed. L.Ed. S.Ct. 98 345 U.S. 74 97 Guillory 873; Tu Administrators E.D.La.1962, University, F. 203 lane Hansen, 863; Alabamа, 1946, Supp. Hobson v. 5. Marsh v. F.Supp. D.D.C.1967, L.Ed. 265. declaratory 1627, 18 impetus Under L.Ed.2d 830 and Griffin supra,, Thompson, judgment in Ed Clark v. School Board Prince making County, the transition ward was operation little of its recreational L.Ed.2d Reitman, offer integrated segregated basis. to an assistance. the Court held recently adopted to how state It discretion unconstitutional a had considerable accomplish- be that transition could best constitutional amendment which declared duty agency authorities have no inter ed. Local state could right easing property uncon- from an fere the transition with the vendor anyone sell, mode lessor to rent lease to stitutional constitutionally permissible. Considering “purpose, he scope, chose. operative re- true as That has held effect” of legislative by, apportionment amendment, the state the Court stated desegregation effect, existing nullifying as to the fair-hous bodies and ing laws, adopted schools.9 Constitution the state had an af does, however, require policy encouraging private the end re- firmative Significant constitutionally permissible. in sult discrimination. state market, housing private volvement nega- protection equal clause is by prior regulation fair-housing prac denying form, but there is tive tices, supported the Court’s conclusion. required positive is often action in This case offers no circumstances provide “equal protection.” fre- That is volving regulation private of ac public quently func- true as to essential tivity, of can the abandonment which be permit more lati- functions tions. Other discriminatory transmuted into state swimming pools, to tude of action. As significant action. It is further that may city at its which a furnish or not subject facility here, public the ture, in na discretion, it to us that seems exist, has ceased whereas the to equal protection meets the of the test private Reitman, by facilities in their to that clause offer when decides necessity very identity nature, of any type facility of recreational possibility continued to exist. The ground that to do so its citizens on the private pool op owners in Jackson would result an unsafe and uneconom- segregated pools erate henceforth does operation. ical not indicate such state involvement is, There course, no constitutional past, present or future as could right public to have access to a swim- possibly require application ming pool. question No one would principles Reitman here. proposition having in circumstances no overtones; example, as, racial where Griffin, the Court held as a viola- municipality all of a citizens are of equal protection tion of the clause the race, closing municipal same of all public schools embody would no unconstitutional Virginia. Prince County, Edward action or result.10 predicated Court its decision on two Attempts analogize Noting this case to factors. that none other Mulkey, 1967, Reitman v. Virginia counties in had closed their Reynolds Sims, 1964, Arguments process 377 U.S. related to a due impairment 84 S.Ct. 12 L.Ed.2d 506. theory of contract were fore plaintiffs by closed to such cases as Hun Education, 1954, Pittsburgh, Brown v. Board of ter v. 207 U.S. 686; 177, 178, 74 S.Ct. Shuttlesworth L.Ed. 151. See Birmingham Education, regard, NJD. Lightfoot, Board of in this Gomillion v. Ala.1958, F.Supp. 372, 379, 342-343, 364 U.S. 81 S.Ct. aff’d, 358 U.S. 3 L. 5 L.Ed.2d 110. Ed.2d 145. urged theory schools,11 pointed Appellants out have the Court suggested county supporting explicitly than were those' Reit- the state and man, segregated and Evans. understood private, schools with Griffin argue that, excluding protected funds, them to in terms of a to the effect right equal temporary expedient, Edward “Prince be a free and citizen. We they go argument, children, if understood cоunsel in oral school county, go brief, to well state that must written in their own school which, racially segregated here al- issue whether the Constitu- schools though designated tion private, are bene- forbids the of Jackson support.” withdrawing badge equality. county and state ficiaries of badge equality, presumably, 230-231, was, at 1233. U.S. at swimming ability integrated Pretermitting to swim an question munici- pal swimming parts pool ability enjoy, of Mis- in other facilities available —the integrated evidence, fashion, sissippi, recreational no on which there operated by municipality here see no involvement we any private disputed applied citizens. It cannot be funds maintain badge equality, here the facilities. ability unsegregated pool, swim an rely plaintiffs also on Evans v. replaced by badge implying to be in- Newton, 1966, 296, 86 S.Ct. equality segregated pools, the munici- — case an- not think that 486, but we do pality’s action could not allowеd. alogous. that- found However, where the facilities around purportedly of a character equality which the status revolve required park private park to be enjoyment removed from the use subject public institution treated “as a community, the entire see we with- the command of Fourteenth any badge equality. drawal of 302, 86 at Amendment.” only hold where at 490. “We argu their Plaintiffs extend had control be- tradition however, urging ment, people that white established, firmly we cannot take come general and thus more affluent judicial mere notice that the substitution greater private swimming have to access instantly this transferred trustees ‍​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌‌‍said, Therein, a it facilities12 is lies public private park the sec- from the to aspect alleged fatal removal 301, at 489. tor.” 382 U.S. at 86 S.Ct. badge equality plaintiffs, and — may bar, course, there In the case at they represent, continue to class will a of munici- be inferred “tradition well unequal suffer a result treatment' as control,” analogy pal must but there municipal context, action. this swimming pools city end. The in Jack- argument significance. legal little carries operate, completely son where- ceased protection equal clause does not park con- Evans v. Newton promise guarantee or or economic finan operate, with benefit of tinued to equality. applying require cial “municipal and maintenance continued 301, protection clause, equal ments of the concern.” 382 at S.Ct. 486. point, pool formerly by ob 12. On this Mr. Justice Black One leased Equal subsequently operated “the Protection served that Clause has equal protection white-only relates laws Y.M.C.A. local on a basis. persons however, be ‘between as such rather than is no evidence areas’,” public tween at S.Ct. 377 U.S. involvement Virginia pool. See, g., Newton, at but law treated e. Evans v. “the Edward school children of Prince 382 U.S. 86 S.Ct. differently way citing Terry Adams, [County] it 345 U.S. 809; treats the school children of all Public Com’n Utilities Virginia Pollak, 1952, counties.” Id. of District of Columbia v. 813; Marsh v. Alabama, 1946, require operate taking cannot such factors into account and swimming solely pool being guided by because resulting conclusions city’s ceasing to do so forecloses the from their consideration. enjoyment by financially fortunate less pointed Motivation has been out here avail- citizens of recreational positive as a municipal indication completely private on a able basis policy. suggested It has been more affluent. City has, effect, adopted an official position prefer operate it would Motive behind unsegre- operate rather than legislative be examined action gated pools. commenting Without potentially the аction interferes where recog- argument, soundness of the we with or a denial constitu embodies nize that in the face of the substantial rights. See, g., tionally protected e. legitimate objects which motivated Prince Ed Board of Griffin v. School City’s closing, wit, preserva- County, supra, ward and Gomillion v. tion of order and maintenance of econ- Griffin, supra, Lightfoot, supra, n. omy municipal activity, no such mu- at at nicipal policy can be inferred from the expression that, non uses the “Whatever closing. grounds might support raeial a State’s agree We with the district court allowing county to abandon plaintiffs pro- equal not denied the schools, object constitu must be a tection of the laws grounds op one, tional of race and these pools. position desegregation qualify do not judgment expression constitutional.” That Read must not be lifted out of context. Affirmed. footnote, with the attached connection BROWN, preceding part paragraph, JOHN Judge, R. Chief TUTTLE, paragraph follows, WISDOM, THORNBERRY, and the which GOLDBERG, speaking Judges, SIMPSON, clear that the Court was dissent, reserving right kind of schools abandonment to file a dis- senting opinion. operate which racial would continue segregation. do this state read taking prohibit ment GEWIN, COLEMAN, AINSWORTH, race into for an consideration if DYER, GODBOLD Judges, concur. discriminatory purpose. invidious BELL, Judge, specially The consideration racial factors has con- Circuit curring, Judges been endorsed in of national def cases with whom Circuit ense,13 operation RIVES, COLEMAN, GEWIN, the the AINS- schools,14 jurors.15 WORTH, join. and the selection of GODBOLD and DYER dismissing complaint, In con this after beginning The the footnote at the sidering testimony, the and affidavits majority Clay- opinion Judge that shows City the district the court found that ton, deceased, now had on concurred pre officials acted in the interest February 5, years 1968. Now almost two venting prеserving violence and economic later, dissenting opinion the has been City’s operations. soundness the pools question filed. The here were though obviously Even such motive stem closed in 1963. The which forms the suit considerations, from know med racial we subject appeal matter of this was filed City prohibition hearing prompt bar 1965. There was Hirabayashi States, Daniel, S.D.Miss.1958, F.Supp. 13. v. United 81, 100, 87 L.Ed. 186. 1774. Beto, 15. Brooks v. 5 Cir. 366 F.2d Birmingham Board of Shuttlesworth v. 14. 25. Darby Education, 9; supra, also n. see simply ap- judgment racial discrimination court and the district closings. The fact Constitutional rendered in pealed from was they are, important affirming principles, must de- as original panel decision may be was on facts. It by court nevertheless rest district nial of relief hearing full could August Palmer v. that on a a factual base rendered developed princi- Cir., constitutional F.2d Thompson, dissenting opinion. ples by long delay to announced not to attributе This is any here, however, on affidavits produced. The case is parties; it is hap- necessary event, and the is absent. has factual basis wonder what one must 1, therefore, long pools interim? concur. pened in the to the so, they If what in existence? still Are WISDOM, Judge, dissenting, Circuit they in ? condition are joined by BROWN, JOHN R. Chief dissenting THORNBERRY, final footnote1 of the Judge, TUTTLE, The be the differences opinion shows SIMPSON, and Circuit GOLDBERG majority and the dissenters Judges. tween majority opinion largely factual. WISDOM, Judge, respect- Circuit I only evidence emphasized that “The had fully dissent: for such and motives reasons Long exposure to obvious non-ob- closing affidavits is contained vious racial discrimination Depart has seasoned Mayor of the Director astonishing, therefore, It Court. [Ma and Recreation.” of Parks ment to find that half of the members of this p. ma jority typed opinion, 1225]. accept at face ex- value the two particularly jority opinion also noted cuses the of Jackson offered for they agreed had parties that “all pools wading opportunity to offer 'had pools. by As found court and [p. district With 1225] desired.’” evidence affirming opinion, blessed deference, appear dis these it would finding are: making excuses senting opinion, in bad acted of Jackson personal safety “[1] of the citi- faith, simply departs record.2 from the zens and the maintenance find such a There is no record basis for endangered of law and order would be ing. public swimming swimming pools, operate integrated Whether on an basis. aside, matter ais racial discrimination These eco could not be easily can of Jackson. We nomically operated in that manner.” disputed, surmise, indeed it not be racially closings Board here were Griffin v. School motivation, how- County, Prince Mere racial Edward motivated. ever, proof racially disсrimina- is not of a County, tory closing. presence purpose Board in Prince Edward School purpose Virginia, and is of such a was intention of absence motivated including order, Courts, circumventing desegregation federal the real issue. proof motivated, courts, there must travel of Jackson was here proof county. public a in this ease was failure in the closed schools plaintiffs. part Supreme assume We cannot Court ordered the schools say city may Judge a never 1. “16 We do not that Eives wishes that noted municipal City previously Montgomery contrary parks, abandon a rendered to city dissenting opinion, If show service. the facts that footnote 14 of the are „ open good faith for economic or acted and have been has since 1965. This fact reasons, by the action would other nonracial was called to the attention of the court degradation, Judgе prior filing have no of racial Eives to overtones of the dis- senting opinion. not offend the Con and would therefore stitution.” 1230 Moreover, deny rights

reopened. instruct- the Court ordinances which created protected by it could re- court that the federal ed the district Constitution.” years Supervisors quire ago, take Over fifteen to in the second 2 levying decision, Supreme to Brown action of taxes de affirmative Court reopen adequate go saying main- clared: to and funds should without “[It] raise public system. vitality are that tain the school of these constitutional principles yield differences between cannot manifest factual be allowed to simply disagreement and Court: because of case before this with Griffin Virginia 300, public them.” in other counties 349 at schools 75 at 756. S.Ct. stayed here, pools years open; municipal ago, in Over ten the Court with dealt argument closed, although all a similar Jackson were Little Rock case, Cooper Aaron, 1958, were school recreational facilities v. desegregated And basis. 3 L.Ed.2d After available degree quoting Warley, es- Buchanan is a difference in the v. the Court there sentiality public said: school education “Thus law and order between are not here preserved by to public depriving Negro facilities- —al- recreational though today deny rights.” children can of their constitutional pro- City obligation Memphis, Watson to to v. owes its citizens reasonably adequate fa- U.S. vide recreational S.Ct. Memphis sought cilities.1 But rationale on which defend Grif- gradual planned applies seg here: rests transition fin regated integrated park by facilities might grounds Whatever nonracial asserting necessary pre it was “to allowing county support a State’s disturbances, violence, vent interracial schools, object abandon must riots, сommunity confusion and tur one, grounds constitutional be a moil,” at 373 U.S. at 1319. desegregation opposition race and Court, For a unanimous Mr. Justice qualify do not as constitutional. 377 U. Goldberg by met this contention assert at S. S.Ct. at 1233. * * * ing “compelling answer rights may is that constitutional not be I. simply hostility denied because of their assertion or Id. exercise.” years fifty ago, the Su- A. Over preme demolished excuse Court simi- Cooper Aaron the district lar to the first ad- excuse found that there was “extreme Warley, here. In Buchanan v. vances hostility” numerous and that were there L.Ed. by and disorder caused acts violence 149, the an ordinance invalidated opposition desegregation of the schools prohibiting of Louisville past Here, Rock. there is no Little occupying blocks houses by history, only speculation rebutted greater number of houses where the desegregated pools in existence of south- by whites, occupied were and vice versa. opera- ern of Jackson’s cities.3 urged the ordinance “will tion recreational of other promote public peace preventing desegregated on a basis indicates race conflicts”. The Court dismissed city’s enforcement able law officers single argument with sentence: peace preserve and that is, important “Desirable as this pre- promote peace closed but public peace, preservation vent blacks whites accomplished laws this aim cannot be water. same knows, Newton, 1966, such some cities See Evans 3. As the Court Orleans, 15 L.Ed.2d 45. and New as Tallahassee now been re- been closed have that had opened. 75 St.Ct. L.Ed. 1083. basis; wading pools City nor were the B. asserts The second reason park City charged pools pools “these benches. The for is that swim- ming only economically operated” twenty fees of cents and could ten not be cents, integrated At sаme described the Director as the basis. about the * * away country pools, in it “lowest to be closed found its did time many Municipal people pos- in in order to serve as as with rest rooms Building sible.” and removed the benches Livingston Park and tables Zoo. from swimming pools wading and Mayor Thompson’s are af- told in Livingston Park, pools, like benches fidavit, “The are rest rooms not parts large package. are recreation Municipal maintained in the Court Build- operating Jackson the funds for ing op- for the efficient the reason that Department and Recreation of Parks building permit eration of said does levy come from a mill reve- and furnishing of these facilities for the operations nue derived certain such general public”. Perhaps we are also pool receipts, as auditorium and lake ad- supposed to in Liv- believe benches golf fees, concessions, missions, kiddie ingston Park for rea- were also removed rides, vending machines, special and economy efficiency. sons and said, And, “From events. the Director study appropriated sup- A record shows the General Fund is Jackson, cities, expect plementary money like all does not needed to meet the wading swimming pools, pools, operation its and overall of Parks and Recrea- park profitably benches to be maintained tion”. facility if each recreational “City found district that the court independent of the business swimming pools of Jackson closed municipal park activities its and offers operated owned and fol- citizens. lowing declaratory entry judg- aof Department Parks ‍​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌‌‍and Recre- ment the case of Clark [of that] parks operates play- ation all of the Thompson, F.Supp. requiring grounds Jackson. The integration City’s swimming and parks have such facilities as wаding pools”. Court affirmed This pools, wading pools, rides”, “kiddie base- decision, April and in 313 F.2d diamonds, courts, ball tennis and similar rehearing. May 27, 1963 denied a Department op- attractions. The also committee, Negro representing Auditorium, Municipal erates Col- Jackson, community Mayor with met lege (Negro) Auditorium, Park Com- Thompson city officials munity Municipal golf Centers, courses present grievances, including their a re- (including Negro golf nine-hole quest desegregate pub- that the its course), Livingston Lake, city conces- including parks lic facilities and swim- sions, and the Zoo. As is evident ming pools. According the uncon- Kurts, George from the Di- affidavit of Negroes tradicted affidavit one of the Department, rector of the and from his present, Mayor Thompson declared that itemized list of the numerous activities policy of Jackson maintains, Department and facilities the segregation was to continue rаces few, any, if of the recreational activities in the use facili- self-supporting. could have been May 30, Daily ties. the Jackson years pools reported Mayor Thompson For for News several whites as hav- ing Livingston, Park, announced, swimming pools “Public Battlefield Col- lege year pool opened Park and the in would not be schedule this College difficulty”. expenses $10,000 Park due had to some minor water against difficulty” disap- each for “Minor each revenues water has $8000 Negro pools peared City’s the white for the for the excuse $2500 pool. short, having opened pools had never in 1963 or since. segregated closed, operated economically except on a still They pool Park. are Prince at Leavell Woods Edward were “removed maintained, enjoyment being properly the use and en- the —without August community”. off-setting in tire the revenues —or too according argued grants, Director to officials that tuition Kurts. closing schools, applied equal- well as the Pool, unlike the The Leavell Woods ly Negroes to and whites. Nevertheless City. pools, the had been leased Supreme re- Court held that this Early cancelled its lease in 1964 the treat from the of a fa- Young pool. on this Men’s Christian cility justified grounds could on be promptly over lease- took Association opposition desegregation. of race and operated pool ex- hold and has since patrons. clusively Loving Virginia, 1967, for white In integrated pools The excuse that C. argued miscegenation State that its stat- may pose would to law and order threat punish equally Negro utes both the from an honest held have resulted fear participants white interracial mar- Fathers. But the Jackson riage. Supreme “reject[ed] Court justify yielding fear does not ‘equal applica- notiоn that mere hostility community produces it. that containing tion’ aof statute racial clas- Yielding violence, puts premium on dis- enough sifications to remove clas- order, community and further resistance. sification from the Fourteenth Amend- The excuse that of Jackson proscription ment’s of all invidious racial wading pools swimming and closed its Martin, discrimination”. In Anderson v. they operated prof- could because not be 11 L.Ed. itably is frivolous. 2d the State defended a statute re- City’s closing action quiring all elections the nomina- city’s right or fall on a must stand papers designate tion should ballots facility close recreational on the argued the race of candidates. The State “grounds opposition de- of race and “nondiseriminatory the Act was be- segregation”. labeling provision applies cause equally Negro and white”. The Court II. attempt- held that fact State was affirming My ing encourage A. brothers could its citizens to vote for entirely solely ground have been satisfied with the a candidate on the of race. put forth for upon reasons “Race is the factor which the stat- wading ponds. operates pro- ute and its involvement They rely heavily, as did district motes ultimate discrimination which court, argument op- act sufficient make invalid.” equally Virginia erated and whites. Hamm v. Board Elec- State say: They tions, E.D.Va.1964, F.Supp. Woolls, aff’d Tancil v. disputed “It cannot be that were (1964), 13 L.Ed.2d 91 the Vir- badge ability equality, here ginia required law under attack lists unsegregated pool, swim to be property of voters and tax assessments replaced by badge inequali- implying kept separately for each race. ty segregated pools, municipali- — Negroes attacking the statutes demon- ty’s action could not How- be allowed. inequality strated no measurable or dis- ever, facilities around which whеre the criminatory effect. Nonetheless equality re- revolve the status summarily affirmed the district enjoyment moved use and holding court’s the law unconstitutional. community, entire we with- see no any badge equality.” drawal of Loving In cases such as v. Virginia, Hamm, Martin, contention, Anderson v. This is tired one that has equally rights applied Ne- statute have civil cases. overworked groes ir- was and whites but fact school facilities Griffin (377 temporary expedient. is a U.S. race was factor because the relevant S,Ct. 1233). 230, operated, just at 84 at upon which the statute that led race was the factor as closing pools Here in too Jackson pools. to close Jackson its Negro heavily “bears more on children”. Many inequality white children in Jackson have Measurable was swimming country opportunity per in Supreme curiam Court’s for the basis pools by private applied club or in Brown owned decisions 6 4 persons pools operated beaches,5municipal or in at summer parks and theatres camps; golf courses,7 in the Leavell courtr swim busses8 Few, any, Negroes Pool. in Woods if vice cases central these ooms.9 swimming pool. have to a Jackson access was unlawful state action in the badge in display a racial forced In Hall v. St. Helena Parish School feriority. Harlan As first Justice 649, Board, E.D.La.1961, F.Supp. 197 “[Segregation fact in put it: statutes] 655, 529, 515, aff’d 368 82 7 S.Ct. U.S. ground proceed citi on the that colored (1962), L.Ed.2d 521 the court said: degraded that so zens are inferior [closing speak ‘to of this law they cannot allowed to sit in providing grants schools and tuition occupied white citizens coaches * * private attending *.”10 for students schools] just certainly as did as operating equal equally equate is Plessy v. considered in Jim Crow law protection equality with the Anatole closing swimming pool Ferguson, spokе law, France in of: “The Negroes ground proceeds on majestic equality, forbids rich as they degraded can “so inferior and poor sleep bridges, well as the under not be allowed” use streets, beg in the and to steal people. with white bread.”11 case, however, Griffin argument equal application rests on affirming opinion dismisses B. assumption the fallacious public subject Com- Leavell Woods facility the same effect on has pool munity Park with state- brief Negroes Closing the both and whites. no evi- ment in a footnote that “There is County Prince Edward had schools however, any public dence, involve- Negro conspicuously greater effect pool”. of that ment children than children. As Jus- on white its lease of After pool cancelled Black tice said: in Jackson suffered seeing Young Men’s humiliation Closing Edward’s schools Prince pool operate the Christian Association heavily Nеgro children more bears exactly only. whites This Prince white Edward since badge inferiority my kind of brothers private accredited children there have City’s impermissible. refer to as they attend, while can schools which performing recently a recre- very withdrawal until colored children schools, private, ational function favor private have had no available segregated operation fa- they the same now attend and even the school Atlanta, 1955, Development 7. Holmes v. 350 Park 4. New Orleans 879, 141, Detiege, 1958, 54, 100 76 L.Ed. U.S. S.Ct. 776. 358 U.S. 79 Ass’n v. 99, 3 46. S.Ct. L.Ed.2d Browder, 1956, 903, Gayle 8. v. 352 U.S. 145, 1 114. 77 S.Ct. L.Ed.2d Mayor v. 5. Dawson Council Virginia, 1963, v. 373 9. Johnson City, 1955, 350 U.S. 76 Baltimore 195. 10 L.Ed.2d 133, 100 L.Ed. S.Ct. 774. Plessy Ferguson, Ass’n, Park Theatrical 6. Muir Louisville 1138, 41 L.Ed. 256. L.Ed. S.Ct. 347 U.S. Lys Rouge, Bynum, France, 1112; Le Ch. Anatole Schiro v. (1894). VII Park, park open only cility Bacon’s to white to the involvement is similar state’s persons. private held that discrimination condemned Parking resign trustee, abandoning Wilmington could not Authori- Burton v. park public activity, ty, 1961, avoid in- * * * tegration. park Supreme In Burton “A more L.Ed.2d 45. department police depart- like a fire Delaware or Court found that the State of pres- ‍​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌‌‍traditionally place power ment had elected to its serves com- munity.” tige 302, 382 U.S. at 86 S.Ct. at behind discrimination the admitted distinguishable 490. Evans is not against Negroes by private a restaurant building. Considering parks instant case. a state-owned as a whole or the recreational ac- III. package, City tivities as a of Jack- turn now to decisions which son should no more allowed abandon plaintiffs’ support position. phase of recreation to avoid generally may desegregation City lawful become “[A]cts than the of Macon was accomplish unlawful when an il done to allowed turn Park over Bacon’s legal power noted, private end and a constitutional trustees. As Court by way not through can be used of condition to “Mass recreation the use attain private parks an рlainly unconstitutional result.” West is 13 Telegraph Foster, 1918, 302, ern Union v. at Co. domain.” at 86 U.S. 247 U.S. 38 S.Ct. 1006. L.Ed. 490. Bacon’s Park in Macon would When, case, city too, as a closes a have ceased to exist as far as the public facility purpose City for the of avoid was concerned and far ing desegregation it, order and when the could use but for the Court’s de- necessary city’s refusing of the City effect retreat cision to allow re- against withdrawal is to discriminate responsibility. treat from its Negroes the otherwise lawful closure becomes College ex- another case The Girard is unla wful.12 city cannot ample principle that a Newton, desegregating retreating v. a fa- Evans avoid Pennsyl- 373, the 15 L.Ed.2d cility. In Commonwealth Macon, Georgia, was trustee Directors Board of vania v. City’s argument joyed to take ac- privilege. fails 12. The state’s discrim- Then the between distinction the crucial count of in an identifiable ination is concentrated new to institute failure the state’s The rebuke is felt. act. also, city, viewpoint of a serv- its abandonment service and From the formerly provided. practical There to forbid ice it for a it is more things many not to do. state chooses or- than to of a service the abandonment simply original not create one does In the When a state establishment. der its another, already exist, poli- program, case, there is new former quo. city change formulated, There is in the status cies have system operative already have a discrimina- “action” which could of ad- has an tory impact. case, discon- But when a state the en- the latter ministration. clearly existing service, program there Final- tinues must be constructed. tire “action”, ly, well be and the action the tradi- is more consonant with it is enjoin Practical for discrimination. courts to aban- a vehicle function оf tional dic- well as theoretical considerations to create and than order donment entirely program. adopt failure to a distinction between the new tate Lightfoot, example, the abandonment establish a service and In Gomillion existing important decision, is at least of an one. Most based its the Court impact ground part, the individual citizens. the Alabama Negro plain- deprived gerrymander there never existed When a service has something they previously bring the state’s animus had is no action to tiffs of against “pre-existing enjoyed those whom it is directed. home to —their nothing generalized at S.Ct. 125. to focus a vote”. is stinging discriminatory atmosphere into a Memphis, impact naturally Citing much rebuke. The Watson sharper expresses 10 L.Ed.2d when the state by taking away previously en- animus design is, in- Philadelphia, its “immediate Trusts tent”, (3) Ap- its “ultimate effect”. plying factor, so Supreme Girard first this Court is. held language familiаr with regardless the historical context College, students, existing Mississippi limiting the conditions at to white trust students Orphans’ time the desegregated. Jackson were closed should be necessary only quote Pennsylvania removed Court of May a case we decided in 1963: “We Philadelphia installed as trustee and again judicial take notice that the State private persons The Court as trustees. steel-hard, Mississippi inflexi- has a Appeals that the could held state undeviating, segre- ble, policy withdraw; private official appointment of gation.” United Jack- col- States v. to continue trustees son, Second, lege 5 Cir. 318 F.2d action. unconstitutional state was' objective closing immediate Pennsylvania the in the v. Commonwealth public pools complying was to Brown, 120, avoid with 392 F.2d 3 Cir. desegregation the in order issued Clark A.L.R.3d 724. Thompson. Third, persons for white cases, in these in in- both the Thus closing the first effect of the was case, city government stant the tried encourage private enterprise sup- desegregating escape facility by ter- ply segregated pools patrons. for white city’s minating the connection with Negroes puni- For the first effect was facility. only The difference here is they opportunity tive: were denied the accomplish the method used to the ob- using segregated pool. even their The jective closing rather than was segrega- encourage effect ultimate is to just withdrawing as trustee. it is But Negroes. tion to the detriment of All wrong to close for facilities public recreational now in facilities are operate racial reasons as it is them jeopardy. on a racial basis. In is each case race Erickson, guiding U.S. factor Hunter v. dominant decision. In 21 L.Ed.2d Mulkey, Reitman v. Ohio, Akron, charter its amended L.Ed.2d any enacting prevent the council Supreme Court affirmed a California religious, racial, dealing with ordinance holding decision an unconstitutional housing discrimination or ancestral amendment to the California Constitu- majority of approval of without tion, approved by voters, repealing that this was Court found voters. The housing existing open laws and for- “Only protection equal in that denial bidding interfering the State’s housing based to end discrimination laws right any future with the absolute origin religion, ‘race, color, national on person any property to sell or lease his gauntlet.” ancestry’ run 137’s must § person. The amendment on was neutral argued again operate face and could be said to equally. groups The Court treated equally Negroes whites. “Moreover, although said, the law on its Court held that the amendment was dis- Negro white, Jew and face treats criminatory; where “even manner, gentile the real- identical charged only State can be en- with impact ity falls that the law’s couraging rather commanding than dis- minority.” Thus, Reitman the as in crimination”, prohibited there was state regarded impact on mi- actual involvement. nority groups controlling rather than To find state discrimination the neutrality apparent law. used the “three factor which test” comparable Supreme Court enunciated: Federal courts are used to California (1) and the labor law. “The historical the field of context situations again existing prior had to enact- to its Time and this Court has conditions (2) objective”, employee ment”, whether was dis- its “immediate determine public had if motivated Here there can be no go grievances Mayor ing mination tive case to the NLRB ism closing America tion. employees sought union owned several employees voted or on Company, charged out of business Negroes using effect plant plant on bargaining. facilities. activity. account was an unfair lаbor Supreme Negroes plant. by purpose good Darlington question shortly plants, Negroes purpose in favor The defendants reason, entirely, who Court remanded Textile Workers of organize Thompson and on remaining plants. doubt of Jackson’s in one parks employee’s presented company Manufacturing in Jackson are for factual deter- of the chill- chill union- but defendants and other for collec- after effect unioniza- practice, closing reason, which closed could their labor which has lost through animosity segregate these facilities. first decide whether gation. before parks, living at the they high. son: draw It has ment done Negroes Negroes’ ^[******] risk more than boundaries without the segregated negated In Jackson the closing taught segregated same Negroes protesting if pre-existing losing elections. from a white they Negroes’ attempts time Jackson’s its pleasures deprive there even facilities. facility dare to will now think public engendering state’s segregated they price did segregated public right City’s pools has now know a few thousand altogether, Negroes away protest power wish libraries, They community to vote swimming. protest with the further to risk to de- segre- a les- twice must also re- now on petition notice that a to redress long-range are manifold effects grievances may change lead to a for the far-reaching. City’s pools If the worse. may public do- eliminated from the be activities, main, parks,14 and li- athletic Lightfoot, Gomillion v. may can No also be braries closed. in- say many may close other also how cities another fac- volved situation where pools or their facilities. The racially action tual effect motivated races, City’s separate the action tends to unconstitutionality. was determinative of enсourage private discrimination, and legislature redrawn The Alabama had Negroes raise substantial obstacles for Tuskegee the boundaries of the asserting rights of national citizen- Negro voters. to exclude most of the ship by created Amend- the Wartime legislature authority has broad ments. munici- fix from time to time alter pal authority But by equal- borders. state We should not be misled judicial argument. application argument from control “when insulated That power repudiated is used an instrument for separate-but- state of the smacks equal circumventing federally protected Plessy Ferguson. doctrine of right”. at at 130. focusing We should misled Frankfurter, many cases, city’s non-operation said Justice pools. of the “prohibited Closing Court has State as an official act to acknowledged exploiting power prevent Negroes enjoying equal to be absolute isolated context”. status with the un- whites сonstituted Court held that Amend- pur- the Fifteenth lawful It state action. had the same Montgomery subject closed Commissioners and is not to re- January parks They are still view of some absence panel A closed. this Court held that violation the Constitution of United City Montgomery Gilmore, “a it was matter committed to the wis- States.” dom of members of the Board 5 Cir. 277 F.2d 364. many effects pose the same pools.

maintaining separate recognize actual trau- ‍​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌‌‍should Negroes impact the action

matic It was a reaffirmation

for what it was. Dred article of faith Scott “a or in- indeed subordinate beings, class who had been sub-

ferior

jugated by and are race” the dominant “people Unit-

not members of the badge

ed States”.15 This is servi- sign citizenship,

tude, the of second-class Thirteenth, stigma Four-

teenth, and Fifteenth Amendments

designed to eradicate.16

ADDENDUM saying parks

I err Montgomery, which the closed

1959, are still closed. footnote See Judge opinion. Bell’s As matter

fact, anyone enjoy since 1965

trees, flowers, beauty scenic parks. Montgomery’s But visitors to

parks will find no animals in the Zoo and no water

pools. America,

UNITED STATES Plaintiff-Appellee,

Roy NELSON, Arthur Defendant- Appellant.

No. 23039. Appeals Court of

United States Circuit. Ninth

Nov. Sanford, 1857, good 15. Dred Scott v. has acted in faith for economic or (19 How.) 393, reasons, L.Ed. 691. nonracial the action would degradation, have no overtones of racial say city may never 16. We do not that a would therefore not offend the Con- previously rendered stitution. abandon a If the facts show that service.

Case Details

Case Name: Hazel Palmer v. Allen C. Thompson, Mayor, City of Jackson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 7, 1970

Citation: 419 F.2d 1222

Docket Number: 23841

Court Abbreviation: 5th Cir.