Lead Opinion
delivered the opinion of the Court
In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District
I
Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to “deny to any person within its jurisdiction the equal protection
Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied
II
- Although petitioners cite a number of our previous cases, the only two which even plausibly support their, argument are Griffin v. County School Board of Prince Edward County,
A. In Griffin the public schools of Prince .Edward County, Virginia, were closed under, authority of state and county law, and so-called “private schools” were set up in their place' to avoid a court deségregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the “private schools” were open to whites only and these schools were in fact run by a practical part
B. Petitioners also claim that Jackson’s closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such “encouragement” is prohibited by Reitman v. Mulkey, supra.
In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accépted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties.
In the first place there are no findings here about any state “encouragement” of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners’ argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant
Ill
Petitioners have also argued that respondents’ action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. . But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the" men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck,
A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O’Brien,
It is true there is language in some, of our cases interpreting the Fourteenth and. Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board, supra; Gomillion v. Lightfoot,
IV
Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan’s dissent in Plessy v. Ferguson,
“Congress shall have power to enforce this'article >by appropriate legislation.”
But Congress has passed no law under this power to regulate a city’s opening or closing of swimming pools or other recreational facilities.
It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here.
The judgment is
Affirmed.
Notes
Clark v. Thompson,
The court’s opinion is not officially reported.
My Brother White’s dissent suggests that the. pool closing operates unequally on white and blacks because, “The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.” Post, at 269. It is difficult to see the force of this argument since Jackson has desegregated its public parks, auditoriums, golf courses, city zoo, and the record indicates it no.w maintains no segregated public facilities.
Bush v. Orleans Parish School Board,
Tr. of Oral Arg. 31-32.
There is no question before us here whether the black citizens of Jackson may. be entitled to utilize the swimming facilities of Leavell
Concurrence Opinion
concurring.
I join the opinion of Mr. Justice Black, but add a brief comment.
The' elimination of any needed or useful public ac
We are, of course, not dealing with the wisdom or desirability of public swimming pools; we are asked( to hold on a very meager record that the Constitution requires that public swimming pools, once opened, may not be closed. But all that is good is not commanded by the Constitution and all that is bad is not forbidden by it. We would do a grave disservice, both to elected officials and to the public, were we to require that every decision , of local governments to terminate a desirable service be subjected to a microscopic scrutiny for forbidden motives rendering the decision- unconstitutional.
Concurrence Opinion
concurring.
' I, too, join Mr. Justice Black’s opinion and the judgment of the Court.
Cases such as this are “hard” cases for there is much to be said on each side. In isolation this litigation may
The dissent of Me. Justice White rests on a conviction that the closing of the Jackson pools was racially motivated, at least in part, and that municipal action- so motivated is not to be tolerated. That dissent builds to its conclusion with a detailed review of the city’s and the Spate’s official attitudes of past years.
Mr. Justice Black’s opinion stresses, oh the other .hand, the facially equal effect upon all citizens of the decision to discontinue the pools. It also emphasizes the difficulty and undesirability of resting any constitutional decision upon what is claimed to be legislative motivation.
I remain impressed with the following-factors: (1) No other municipal recreational facility in the city of Jackson has been discontinued. • Indeed, every other service— parks, auditoriums, golf courses, zoo — that once was segregated, has been continued and operates on a nonsegregated basis. One must concede that this was effectuated initially under pressure of the 1962 declaratory judgment of the federal court. (2) The pools are not part of the city’s educational system. They are a general municipal service of the nice-to-have but not essential variety, and they are a service, perhaps a luxury, not enjoyed by many communities. (3) The pools had operated at a deficit. It was the judgment of the city officials that these deficits would increase. (4) I cannot read-intoThe closing of the pools an official expression of inferiority toward black citizens, as Mr. Justice White and those who join him repetitively assert, post, at 240-241, 266, and 268, and certainly on this record I cannot perceive this to be a "fact” or anything other than speculation. Furthermore, the alleged deterrent to relief, said to exist because of the risk of losing other public, facilities, post, at'269,
There are, of course, opposing considerations enumerated in the two dissenting opinions. As my Brothers Black, Douglas, and White all point out, however, the Court’s past cases do not precisely control this one, and the present case, if reversed, would take us farther than any before. On balance, in the light of the factors I have listed above, my judgment is that this is neither the time nor the occasion to be punitive toward Jackson for its past constitutional sins of segregation! On the record as presented to us in this case, I therefore vote to affirm.
“Q. Mr. Rosen, if you were to prevail here, would the city or Jackson be locked.in to operating the pools irrespective of the economic consequences of that operation?
“A. If the question is forever. If it was purely an economic problem, having nothing to do with race, or opposition to integration, they could handle that problem the way any community- handles that problem, if it is purely an economic decision. But if it becomes a consideration of race, which creates the economic difficulties, then it seems to me that this Court in numerous decisions has answered that question. It answered it in Watson, it answered it in Brown, and it answered it in Green. -
“Q. Well, this is in the premise of my question, for you to prevail here, this racial overtone, I will assume, you .must concede must be present. Now suppose you prevail, and suppose they lose economically year after year by increasing amounts. My question is, are they locked in forever?
“A. If the question is, are they locked in forever because of racial problems which cause a rise in economic difficulties in operating the pool, my answer is that they would be locked in.” Tr. of Oral Arg. 43-44.
Dissenting Opinion
dissenting.
Jackson, Mississippi, closed all the swimming pools owned and operated by it, following a judgment of the Court of Appeals in Clark v. Thompson,
That program is not, however, permissible .if it denies rights created or protected by the Constitution. Buchanan v. Warley,
Hunter v. Erickson,
In Griffin, the State closed public schools in one county only, not in the others, and meanwhile contributed to the support of private segregated white schools.
Whether, in the closing of all municipal swimming pools in Jackson, Mississippi, any. artifices and devices were employed as in Burton v. Wilmington Parking Authority,
Closer in point is Bush v. Orleans Parish School Board,
My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” .
Rights, not explicitly mentioned in the Constitution, have at times- been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. United States v. Guest,
■ There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of
A State may not, of course, interfere with interstate commerce; and to the extent that public services are rendered by interstate agencies the State by reason of the Supremacy Clause is powerless to escape. The right to vote is a civil right guaranteed by the Constitution as we recently re-emphasized in Oregon v. Mitchell,
“In the abstract, Louisiana imposes no restriction upon anyone’s candidacy nor upon an elector’s choice in the casting of his ballot. But by placing a racial label on a candidate at the most crucial stage in the electoral process — the instant before the vote is cast — the State furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another. This is true because by directing the citizen’s attention to the single consideration of race or color, the State indicates that a candidate’s race or color is an important — perhaps paramount — consideration in the citizen’s choice, which may decisively influence the citizen to cast his ballot along racial lines.”375 U. S., at 402 .
A constitutional right cannot be so burdened. We stated in West Virginia State Board of Education v. Barnette,
In determining what municipal services may not be abolished the Court of Appeals drew the line between “an essential public function” and other public functions. Whether state constitutions draw that line is not our concern. Certainly there are no federal constitutional provisions which make that distinction.
Closing of the pools probably works a greater hardship on the poor than on the rich; and it may work greater hardship on poor Negroes than on poor whites, a matter on which we have no light. Closing of the pools was at least in part racially motivated. And, as stated by the dissenters in the Court of Appeals:
“The closing of the City’s pools has done more than deprive a few thousand Negroes of the pleasures of swimming. It has taught Jackson’s Negroes a lesson: In Jackson the price of protest is high. Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated public parks, segregated public libraries,, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has lost its public facilities also through the Negroes’ attempts to desegregate these facilities.
“The long-range effects are manifold and far-reaching. If the City’s pools may be eliminated from the public domain, parks, athletic activities, and libraries also may be closed. No one can say*236 how many other cities may also close their pools or other public facilities. The City’s action tends to separate the races, encourage private discrimination, and raise substantial obstacles for Negroes asserting the rights of national citizenship created by the Wartime Amendments.”419 F. 2d 1222 , 1236.
That view has strong footing in our decisions. “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Loving v. Virginia,
While Chief Justice Marshall intimated in Fletcher v. Peck,
In Reitman an active housing program had been racially dominated and then controlled by a state law ending discrimination. But in time the State reversed its •policy and lifted the anti-discrimination controls. Thus it launched or at least tolerated a regime of racially discriminatory housing.
We are told that the history of this episode shows the “steel-hard, inflexible, undeviating-official policy of segregation” in Mississippi. United States v. City of Jackson,
1 believe that freedom from discrimination based on . race, creed, or color has become by reasoh of the Thirteenth, Fourteenth, and Fifteenth Amendments one of the “enumerated rights” under the Ninth Amendment ■that may not be voted up or-voted down.-
Much has been written concerning the Ninth. Amendment including the suggestion that the' rights there secured include “rights of natural endowment.”
Mr. Justice Goldberg, concurring in Griswold v. Connecticut, supra, at 492, said:
“[T]he Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist, that are "not expressly enumerated in the first, eight amendments and an intent 'that the list of rights included there not be deemed exhaustive.”3
“The Fourteenth Amendment and the two escorting amendments establish a principle of absolute equality, an equality which is denied by racial separation or segregation because the separation in truth consecrates a hierarchy of racial relations, and hence permits inequality.”
The Solicitor General says:
“[T]o the extent that the municipality had voluntarily undertaken to provide swimming facilities for its citizens, making it unnecessary for the private sector to develop equally adequate facilities, the closing of the pools has insured that racial segregation will be perpetuated.”
I conclude that though a State may. discontinue any of its municipal services — such as schools, parks, pools, athletic fields, and the like — it may not do so for the purpose of perpetuating or installing apartheid or because it finds life in a multi-racial community difficult or unpleasant. If that is its reason, then abolition of a designated public service becomes a device for perpetuating a segregated way of life. That a State may not do.
As Mk. Justice Brennan said in Evans v. Abney,
“I have no doubt that a public park may constitutionally be closed down because it is. too ex*240 pensive to' run or has become superfluous, or for some other reason,' strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility.”
Hunter and Reitman went to the verge of that problem. Bush went the' whole way. We should reaffirm what our summary affirmance of Bush plainly -implied.
James v. Valtierra,
And. see Comment, Ninth Amendment Vindication of' Unenu-merated Fundamental Rights, 42 Temple L. Q. 46, 53-56 (1968); , Bertelsman, The Ninth Amendment and Due Process of Law Toward a Viable Theory of Unenumerated Rights, 37 U. Cin. L. Rev. 777, 787 et seq. (1968); Forkosch, Does “Secure the Blessings of Liberty” Mandate Governmental Action ?, 1 Ariz. St. L. J. 17, 32 (1970).
“Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in.a case dealing with a State’s infringement of a fundamental right, While, the. Ninth Amendment — and' indeed the entire Bill of Rights — originally concerned restrictions
Franklin, The Relation of the Fifth, Ninth and Fourteenth Amendments to the Third Constitution, 4 How. L. J. 170, 180 (1958).
While the Equal Protection Clause protects individuals against state action, “the involvement of the State” need not be “either exclusive or direct.” United States v. Guest,
Dissenting Opinion
with whom Mr. Justice Bren- • nan and Mr. Justice Marshall join, dissenting.
I agree with the majority that the central purpose of the Fourteenth Amendment is to protect Negroes from invidious discrimination. Consistent with this view, I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause. Our cases make it unquestionably clear, as all of us agree, that a city or State may not énforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may. not have an official stance against desegregating public-facilities and implement it by closing-those facilities in response to a desegregation order.
Let us assume a city has been maintaining segregated swimming'pools and- is ordered to desegregate them. Its . express response is an official resolution declaring desegregation to be contrary to the city’s policy and ordering the facilities .closed rather than continued in service on a desegregated basis. To me it is beyond cavil that on such facts the city is adhering to an unconstitutional policy and is implementing it by abandoning the facilities. It will not do in such circumstances to say that whites and Negroes are being treated alike because both are denied use of public services. The fact is that closing the pools is an expression of official policy that Negroes
The case before us is little, if any, different from ' case just described. Jackson, Mississippi, closed its ming pools when a district judge struck down the city’s tradition of segregation in municipal services and made clear his expectation that public facilities would be integrated. The circumstances surrounding this action and the absence of other credible reasons for the closings leave little doubt that shutting down thé pools was nothing more or less than a most effective expression of official policy that Negroes and whites must not be permitted to mingle together when using the services provided- by the city. ,k
I am quite unpersuaded by the majority’s assertion that it is impermissible to impeach the otherwise valid act of closing municipal swimming pools by resort to evidence of invidious purpose or motive. Congress has long provided civil and criminal remedies for a variety of official and private conduct. In various' situations these ■ statutes and our interpretátions of them provide that such conduct falls within the federal- proscription only upon proof, of forbidden racial motive or animus. An otherwise valid refusal to contract the sale of'real estate falls within the ban of 42 U. S. C. § 1982 upon proof that the refusal was racially motivated. Jones v. Alfred H. Mayer Co.,
In another decision last week, we reversed a three-judge court ruling in a suit under § 1983 that the multi-member apportionment plan there involved operated to minimise or dilute the voting strength of Negroes in an identifiable ghetto area. However, in an opinion joined by four members of the majority in the instant case, we cautioned that:
“[T]he courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. . . . But there is no suggestion here that Marion' County’s*243 multi-member district, of similar districts throughout the State, were conceived or operated as’purposeful devices to further racial or economic discrimination.” Whitcomb v. Chavis, ante, p. 124, at 149 (emphasis added).
Further, motivation analysis has assumed great importance in suits under 42 U. S. C. § 1983 as 'a result of this Court's opinions in Younger v. Harris,
In thus pursuing remedies under the federal .civil rights laws, as petitioners are doing under §§ 1981 and 1983 here, Negro plaintiffs should have every right to prove that the action of the city officials was motivated by nothing but racial ■ considerations. In examining their contentions, it will be helpful to re-create the context in which this case arises.
I
In May 1954, this Court held that “[sjeparate educational facilities are inherently unequal.” Brown v. Board of Education,
At the beginning of the October 1955 Term, the Court resolved any possible ambiguity about the action taken in Muir. In a pair of summary decisions, the Court made it clear that state-sanctioned segregation in .the operation of public recreational facilities was prohibited. Mayor and City Council of Baltimore v. Dawson,
The lower federal courts played a very important role in this ongoing process. ' For example, in June 1956,
“[T]he statutes and ordinances requiring segregation of the white and colored races on the motor buses of a common carrier of passengers in the City of Montgomery' and its police jurisdiction violate the due process and equal protection of the law clauses of the Fourteenth Amendment . . .
Browder v. Gayle,
The city of Jackson was one of many places where the consistent line of decisions following from Brown had little or no effect.
“In 1963 the City of Jackson was operating equal but separate recreational facilities such as parks and golf links, including swimming pools. A suit was brought in the Southern District of Mississippi to enjoin the segregated operation of these facilities. The City of Jackson took the position in that litigation that the segregation of recreational facilities, if separate but equal recreational facilities were provided and if citizens voluntarily used segregated facilities, was constitutional.” Respondents’ Brief 2.
This was nearly nine years after Brown and more than seven years after Dawson and Holmes:
The suit respondents refer to was instituted in 1962 as a class action by three Negro plaintiffs who alleged that some city facilities — parks, libraries, zoo, golf courses, playgrounds, auditoriums, and other recreational complexes — were closed to them because of their race. The defendants were Jackson city officials, including Mayor Allen C. Thompson and Director of Parks and Recreation George Kurts, both respondents in the present case. The plaintiffs in that suit were successful. The District Court’s opinion began by stating that Jackson
Among the District Court’s conclusions of law were the following: (1) that the suit was not a proper class action since the Negro plaintiffs had failed to show that their interests were not antagonistic to or-incompatible with those^of the purported class;
“The individual defendants in this case are all outstanding, high class gentlemen and in my opinion will not violate the terms of the declaratory judgment issued herein. They know now what the law is and what their obligations are, and I am definitely of the opinion that they, will conform to the ruling of this Court without being coerced so to do by an injunction. The City of Jackson, a municipality, of course is operated by some of these high class citizens. I am further of the opinion that during this period of turmoil the time now has arrived when the judiciary should not issue injunctions perfunctorily, but should place trust in men of high character that they will obey the mandate of the Court without an injunction hanging over their heads.”206 F. Supp., at 543 .
As the city has stressed in its brief here, it did not appeal from this judgment, which was entered in May 1962. The Negro plaintiffs, however, did appeal, claiming that the relief afforded was inadequate. The Court of Appeals for the Fifth Circuit affirmed per curiam,
It must be noted here that none of Jackson’s public recreational facilities was desegregated until after the appellate proceedings in Clark v. Thompson were fully concluded.
“ ‘We will do all right this year at the swimming pools . . . but if these agitators keep up their pressure, we would have five colored swimming pools because we are not going to have any intermingling.’ . . . He said the City now has legislative authority to sell the pools or close them down .if they can’t be sold.” App. 15.
A year passed while the appeals in Clark v. Thompson were pending, but the city’s official attitude did not change. On May 24, 1963, the- Jackson Daily News reported that “Governor Ross Barnett today commended Mayor Thompson for his pledge to maintain Jackson’s present separation of the races.” App. 15. On the next day, the same newspaper carried a front page article stating that “Thompson said neither agitators nor President Kennedy will change the determination of Jackson to retain segregation.” App. 16.
During May and June 1963, the Negro citizens of Jackson organized to present their grievances to city officials. On May 27, a committee representing the Negro community met with the mayor and two city commissioners. Among the grievances presented was a specific demand that the city desegregate public facilities, including the city-operated parks and swimming pools.
On the day following this meeting, the Jackson Daily News quoted the mayor as saying:
“ ‘In spite of the current agitation, the Commissioners and I shall continue to plan and seek money*251 for additional parks for our Negro citizens. Tomorrow we are discussing with local. Negro citizens plans to immediately begin a new clubhouse and library in the Grove Park area, and other park and recreational facilities for Negroes throughout the City. We cannot proceed, however, on the proposed $100,000 expenditure for a Negro swimming pool in the Grove Park area as long as there is the threat of -racial disturbances.’ ” App. 15.
On May 30, 1963, the same paper reported that the ■ mayor had announced that “[pjublic swimming pools would not .be opened on schedule this year due to some minor water difficulty.” App. 5.
The city at this-time operated five swimming facilities on a segregated basis: the Livingston Lake swimming facility, in reality a lake with beach facilities, at Livingston Park; a swimming pool in Battlefield Park; a swimming pool and a wading pool in Riverside Park; a pool that, the city leased from the YMCA in Leavéll Woods Park; a swimming pool and a wading pool for Negroes, in College Park.
From the time of the announcement of “minor water difficulty” at the end of May 1963, none of these swimming facilities has operated under public aegis. The city, canceled its lease on the Leavell Woods pool, and it has since been operated on a “whites only” basis by its owner, the YMCA, • apparently without city involvement.
In August 1965, petitioners brought the present class action in the Southern • District of Mississippi. They challenged the closing of the pools and racial segregation in the city jail, seeking both declaratory and injunctive relief. The case was tried on affidavits and stipulations and submitted to the District Judge. In addition to the evidence, summarized above, Mayor Thompson filed an affidavit which stated:
“Realizing that the personal safety of all of the •citizens of the' City and the maintenance of law and order would prohibit the operation of swimming pools on an integrated basis, and realizing that the said pools could not be operated economically on an integrated basis, the City made the decision subsequent to the Clark case to close all pools owned and operated by the City to members of both races.” App. 21.12
Parks Director Kurts filed a similar affidavit, averring:
“That after the decision of the Court in the case of Clark v. Thompson, it became apparent that the swimming-pools owned and operated by the City of Jackson could not be operated peacefully, safely, or economically on an integrated basis, and the City*254 decided that the best interest of all citizens required the closing of all public swimming pools owned and operated by the City . . . App. 18.13
Based on these affidavits, the District Judge found as a fact that the decision to close the pools was made after Clark v. Thompson and that the pools could not be operated safely or economically on an integrated basis. Accordingly, he held that petitioners were not entitled to any relief and dismissed the complaint. On appeal, a panel of the Court of Appeals for the Fifth Circuit affirmed. Palmer v. Thompson,
II
There is no dispute that the closing of the pools constituted state action. Similarly, there can be no disagreement that the desegregation ruling in Clark v. Thompson was the event that precipitated the city’s decision to cease furnishing public swimming facilities to its citizens.
Predictions such as this have been presented here before. One year after the District Court’s opinion in Clark v. Thompson, this Court reviewed a case in which municipal officials had made the same assumption and had acted upon it. In Memphis, Tennessee, Brown and the cases discussed above had little effect until May 1960, when Negro residents sued for declaratory and injunctive relief directing immediate desegregation of the municipal parks and other city-owned and city-operated recreational facilities. The city agreed that the Fourteenth Amendment required all facilities to be opened to citizens regardless of race and that the majority of cit3r-run facilities remained segregated at the time of suit, six years after Brown. It was nevertheless asserted that desegregation was under way and that further delay in achieving full desegregation was the wise and proper course. Both of the lower courts denied plaintiffs relief, the net resultvbeing an order directing the city to submit
This Court unanimously rejected further delay in integrating these facilities. Watson v. City of Memphis,
“Beyond this, however, neither the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials. There is no indication that there had been any violence or meaningful disturbances when other recreational facilities had been desegregated. In fact, the only evidence in the record was that such prior • transitions had been peaceful. The Chairman of the Memphis Park Commission indicated that the city had ‘been singularly blessed by the absence of turmoil up to this time on this race question’; notwithstanding the prior desegregation of numerous recreational facilities, the same witness could point as evideneé of the unrest or turmoil which would assertedly occur upon complete desegregation of such facilities only to a number of anonymous letters and phone calls*257 which he had received. The Memphis Chief of Police mentioned without further description some ‘troubles’ at the time bus service was desegregated and referred to threatened violence in connection with a ‘sit-in’ demonstration at a local store, but, beyond making general predictions, gave no concrete indication of any inability of authorities to maintain the peace. The only violence referred to at any park or recreational facility occurred in segregated parks and was not the product of attempts at desegregation. Moreover, there was no factual evidence to support the bare testimonial speculations that authorities would be unable to cope successfully with any problems which in fact might arise or to meet the need for additional protection should the occasion demand.
“The existing and commendable goodwill between the races in Memphis, to which both the District Court and some of the witnesses at trial made express and emphatic reference as in some inexplicable fashion supporting the need for further delay, can best be preserved and extended by the observance and protection, not the denial, of the basic constitutional rights here asserted. The best guarantee of civil peace is adherence to, and respect for, the law.
“The other justifications for delay urged by the city or relied upon by the courts below are no more substantial, either legally or practically. It was, for example, asserted that immediate desegregation of playgrounds and parks would deprive a number of children — both Negro and white — of recreational facilities; this contention was apparently based on the premise that a number of such facilities would have to be closed because of the inadequacy of the ‘present’ park budgetto provide additional ‘supervision’ assumed to be nee^ssary to operate unsegregated*258 playgrounds. As already noted, however, there is no warrant in this record for assuming that such added supervision would, in fact, be required, much less that police and recreation personnel would be unavailable to meet such needs if they should arise. More significantly, however, it is obvious that vindication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them. We will not ássume that the citizens of Memphis accept the questionable premise implicit in this argument or that either the resources of the city are inadequate, or its government unresponsive, to the needs of all of its citizens.”373 U. S., at 536-538 (footnotes omitted).
So it is in this case. The record before us does not include live testimony. It was stipulated by the parties after the District Judge had entered his order denying relief that the “parties had an opportunity to offer any and all evidence desired.” The official affidavits filed were even less compelling than the evidence presented by city officials in Watson. The conclusion of city officials that integrated pools would not be “economical” was no more than “pergonal speculation.” The city made no showing that integrated operation would increase the annual loss of at least $11,700 — a loss that, prior to 1963, the city purposely accepted for the benefit of its citizens as long as segregated facilities could be maintained. The prediction that the pools could not be operated safely if they were desegregated was nothing more than a “vague disquietude.” In Watson, the record reflected that the parks commissioner had received a number of anonymous phone calls and letters presumably threatening violence, and that the chief of police had testified about troubles in connection with ajsit-in demonstration and desegregation of the city buses.' Here, Mayor Thomp
With all due respect, I am quite unable to agree with the majority’s assertion, ante, at 225, that there is “substantial evidence in the record” to support the conclusion of the lower courts that the pools could not be operated safely and economically on an integrated basis. Officials may take effective action to control violence or to prevent it when it is reasonably imminent. But the anticipation of violence in this case rested only on unsupported assertion, to which the permanent closing of swimming pools was a wholly unjustified response. The city seems to fear that even if some or all of the pools suffered a sharp decline in revenues from the levels pertaining before 1963 because Negro and white neighbors refused to use integrated facilities, the city could never close the pools for that reason. I need only ob
Watson counsels us to reject the vague speculation that the citizens of Jackson will not obey the law, as well as the correlative assumption that they would prefer no public pools to pools open to all residents who come in peace. The argument based on economy is ho more than a claim that a major portion of the city’s population will not observe constitutional norms. The argument based on potential violence, as counsel for the city indicated at oral argument, unfortunately reflects the views of a few immoderates who purport to speak for the white population of the city of Jackson. Tr. of Oral Arg. 36. Perhaps it could have been presented, but there is no evidence now before us that there exists any group among the citizens of Jackson that would employ lawless violence to prevent use of swimming pools by Negroes and whites together. In my view, the Fourteenth Amendment does not permit any official act— whether in the form of open refusal to desegregate facilities that continue to operate, decisions to delay complete desegregation, or closure of facilities — to be predicated on so weak a reed. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply
“The process of ending unconstitutional exclusion of pupils from the common school system — ‘common’ meaning shared alike — solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the . ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose — -violence and defiance employed and encouraged by those upon whom • the' duty of law observance should have the strongest claim — nor by submitting to it under whatever guise employed. Only the constructive use of time will-achieve what an advanced civilization demands and the Constitution confirms.” Cooper v. Aaron,358 U. S., at 25 (concurring opinion).
in
I thus arrive at the question of whether closing public facilities to citizens of both races, whatever the reasons for such action, is a special kind of state action somehow insulated from scrutiny under the Fourteenth Amendment. As the opinions of the majority and Mr. Justice Douglas show, most of our prior decisions, because of their facts, do not deal with this precise issue.
Bush v. Orleans Parish Bchool Board,
Griffin v. County School Board of Prince Edward County,
“But the record in the present case could not be • clearer that Prince Edward’s public schools were closed and private schools operated in their place with state and county assistance, for one reason, and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one; and grounds of race and opposition to desegregation do not qualify as constitutional.”377 U. S., at 231 .
See also Gomillion v. Lightfoot,
The majority, conceding the relevance of the quoted passage from Griffin, states that the ‘‘focus in [both Griffin and Gomillion] was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did.” Respondents agree, and argue further that the present record shows only that Jackson has closed facilities that were once open on a segregated basis and that the closing operates equally on. Negroes and whites alike.
But if effect was all that the Court considered relevant in Griffin, there was no need to mention underlying purpose and to stress the delay that took place in Virginia in implementing Brown.
State action predicated solely on opposition to a lawful court order to desegregate is a denial of equal protection of the laws. As Judge Wisdom said in dissent below, the argument that the closing of the pools operated equally on Negroes and whites “is a tired.contention, one that has been overworked in civil rights cases.”
Here, too, the reality is that the impact of the. city’s act falls on the minority. Quite apart from the question whether the white citizens of Jackson have a better chance to swim than do their Negro neighbors absent city pools, there are deep and troubling effects on the racial minority that should give us all pause. As stated at the outset of this opinion, by closing the pools solely because of the order to desegregate, the city is expressing its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility, though pools were long a feature of the city’s segregated recreation program. But such an official position may not be enforced by designating certain pools for use by whites and others for the use of Negroes. Closing the pools without a colorable nondiscriminatory reason was every bit as much an official endorsement of
“ ‘Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpretéd as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of the negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.’ ”347 U. S., at 494 .
Moreover, this Court has carefully guarded the. rights of Negroes to attack state-sanctioned segregation through the peaceful channels of the judicial process. This Court has recently discussed and analyzed various provisions of the Reconstruction civil rights statutes, and there is little need here to repeat anything more than the most recent observation that “[t]he approach of this Court. .. has been to 'accord [these statutes] a sweep as broad as [their] language.’ ” Griffin v. Breckenridge, ante, p. 88, at 97.
It is evident that closing a public facility after a court has ordered its desegregation has an unfortunate impact on the; minority considering initiation of further suits or filing complaints with the Attorney General. As Judge Wisdom said, “[T]he price of protest is high. Negroes ... now know that they risk losing even segregated public facilities if they dare to protest. . . segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether . . . .”
IV
From what has been stated above, it is clear that the city’s action in closing the pools because of opposition to the decision in Clark v. Thompson was “ah exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race.” McLaughlin v. Florida, 379
See Burton v. Wilmington Parking Authority,
See, e. g., Boynton v. Virginia,
See also Green v. County School Board of New Kent County,
See Thomas v. Mississippi,
“We again take judicial notice that the State of Mississippi has a steel-hard, inflexible, undeviating official policy of segregation. The policy is stated in its laws. It is rooted in custom. The segregation signs at the terminals in Jackson carry out that policy. The Jackson*247 police add muscle, bone, and sinew to the- signs.” (Footnotes omitted.)
See also Singleton v. Jackson Municipal Separate School Dist.,
In an affidavit filed August 18, 1965, in the District Court in the present case, Mayor Thompson stated, “I believe that the welfare of both races would have best been served if [the custom that members of each race would use the recreational facilities near their homes] had continued.”
But see Brown v. Board of Education,
But see eases cited n. 6, supra.
See Respondents’ Brief 3; Affidavit of Allen C. Thompson, App. 21: Affidavit of George T. Kurts, App. 18.
At the time Clark v. Thompson was decided, the population of Jackson consisted of approximately 100,000 whites and 50,000 Negroes. Despite this 2:1 ratio in population,-there were four swimming facilities for whites and only one for Negroes.
I agree fully with the majority that if a city or State becomes involved in any way in the operation of facilities on a segregated basis by private parties, the Fourteenth Amendment is violated. See Burton v. Wilmington Parking Authority, supra, n. 1; Hampton v. City of Jacksonville,
During the proceedings in this case, it was developed that the benches, in the Livingston Park Zoo were removéd in 1961, and that the public rest rooms in the Municipal Court Building were closed at some point in time. See Palmer v. Thompson,
The Mayor’s affidavit makes no mention of “minor water difficulty.”
The Parks Director’s affidavit makes no mention of “minor water difficulty.”
At oral argument, counsel for the city so conceded. Tr. of Oral Arg. 28-29.
In its brief, the city argues: “This Court will take judicial knowledge of the fact that there still exists a serious danger of violent clashes between young people of different racial groups, whether stemming from acts of or promoted by one group or the other.” Respondents’ Brief 10. But this is,- as noted in the text, contrary to the record developed in the courts below. Moreover, at oral argument counsel for the respondents stated that to his knowledge there has been no interracial violence in Jackson since the 1961 Freedom Rider incidents. See Tr. of Oral Arg. 36.
I cannot agree with the majority’s attempt to discount the significance of Bush. First, the action taken in Bush in no sense depended on our conclusion in Brown that the provision of public education was an especially important state function. Had that been the case, and had. recreational facilities somehow been considered less essential, the Court should have accepted the argument made by some States that Brown not be extended to recreational facilities. This we did not do. See Dawson, supra, and Holmes, supra. Simi- ' larly, if such a distinction was at all tenable, the extension of the “all deliberate speed” approach to desegregating public facilities might have been appropriate. But this argument was also emphatically rejected. See Watson, supra, at 529-530. When a public agency furnishes a service — regardless of whether or not it is an “essential” one — it must act in a nondiscriminatory manner with regard to that service.
Second, even accepting the majority’s characterization of public schools as “important,” there is much in our previous decisions to contradict its implication that providing swimming pools and' other public recreational facilities is not a significant state function. In Evans v. Newton,
“A park ... is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis,373 U. S. 526 ; and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment.”
See also Evans v. Abney,
“When a city park is destroyed because the Constitution requires it to be integrated, there is reason for everyone to be disheartened. We agree with petitioners that in such a case it is not enough to find that the state court’s result was reached through the application of established principles of state law. No state law or act can prevail in the face of contrary federal law, and the federal courts must search out the fact and truth of any proceeding or transaction to determine if the Constitution has been violated.
A second argument for petitioners stresses the similarities be
This was the inquiry made in Bush, and it led to striking down the statutes in question. We affirmed that ruling, and the record here is no less clear. And as the majority concedes, ante, at 221 n. 6; surely it is not irrelevant in considering the context in which Jackson’s pools were closed, that a statute of the State of Mississippi, in effect since 1956, provides:
“That the entire executive branch of the government of the State of Mississippi, and of its subdivisions, and all persons responsible thereto, including the governor, the lieutenant governor, the heads of state departments, sheriffs, boards of supervisors, constables, mayors, boards of aldermen and other governing officials of municipalities by whatever name known . . . whether specifically named herein or not . . . shall give full force and effect in the performance of their official and political duties, to the Resolution of Interposition . . . and all of said members of the executive branch be and they are hereby . . . directed and required to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the .compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954 (347 US 483 ), . . . and of May 31, 1955 (349 US 294 ), . . . and to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government, any person employed by the federal government, any commission, board or*264 agency of the federal government, or any subdivision of the federal government, and to prohibit, by any lawful, peaceful and constitutional means, the implementation of any orders, rules or regulations, of any board, commission or agency of the federal government, based on the supposed authority of said Integration Decisions, to cause a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state.” Miss. Code Ann. § 4065.3 (1957); see United States v. City of Jackson,318 F. 2d 1 , 5-6 (CA5 1963). (judicial notice taken of this statute).
See also Green, supra, n. 3.
In their briefs in Griffin, No. 592, O. T. 1963, the respondents relied on previous lower court cases that have permitted closing public recreational facilities after decrees had been entered ordering that they be desegregated. See Brief of Respondent Board of Supervisors in Griffin 65-66. See also Brief of Respondents State Board of Education and Superintendent of Public Instruction in Griffin 53-63. Griffin rejected the relevance of these decisions; however, the present respondents rely on them here and the majority implicitly embraces them.
The Court in Brown noted that in Sweatt v. Painter,
Quoting United States v. Price,
Nor should we be lulled by the suggestion that all of Jackson’s public facilities' have been integrated. As the majority correctly states, “[i]f the time ever comes when Jackson attempts to run segregated public pools either directly or indirectly, or partici
Dissenting Opinion
with whom Mr. Justice Brennan and Mr. Justice White join, dissenting.
While I am in complete agreement with the opinions of Justices Douglas and White, I am obliged to add a few words of my own.
First, the majority and concurring opinions’ reliance on the “facially equal effect upon all citizens” of the decision to discontinue all public pools is misplaced. As long ago as. 1948 in Shelley v. Kraemer,
“The rights created by the first section of the Fourteenth Amendment-are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”
Second, since Brown v. Board of Education,
Even before Brown II,
By effectiyely removing publicly owned swimming pools from the protection of the Fourteenth Amendment — at least if the pools are outside school buildings— the majority and concurring opinions turn the clock back 17 years. After losing a hard fought legal battle to
•Finally, I cannot conceive why the writers of the concurring opinions believe that the city is “locked in” and must operate the pools no matter what the economic consequences. Certainly, I am not bound by any admission of an attorney at oral argument as to his version of the law. Equity courts have always had continuing supervisory powers over their decrees; and if a proper basis for closing the' facilities — other than a conclusory statement about the projected human and thus economic consequences of desegregation — could be shown, swimming pools, as I imagine schools or even golf courses, could be closed.
I dissent.
The economic loss incident to the operation of public swimming pools could not be.much more than that incident to maintaining public golf courses that charge green fees of $0.75 to $1.25, admittedly the lowest in the country.