The city of Memphis decided to close the north end of a street
(West Drive) that traverses a white residential community (Hein
Park), the area to the north of which is predominantly black. West
Drive is one of three streets that enter Hein Park from the north.
The stated reasons for the closing were to reduce the flow of
traffic using Hein Park streets, to increase safety to children who
live in Hein Park or use it to walk to school, and to reduce
"traffic pollution" in the residential area. Respondents, residents
of the predominantly black area, and two civic associations brought
a class action in Federal District Court against the city and
various officials, alleging that the street closing violated 42
U.S.C. § 1982 -- which entitles all citizens to "have the same
right . . . as is enjoyed by white citizens . . . to inherit,
purchase, lease, sell, hold, and convey real and personal property"
-- and also violated the Thirteenth Amendment, as constituting "a
badge of slavery." Ultimately, the District Court entered judgment
for the defendants, holding that the street closing did not create
a benefit for white citizens which was denied black citizens, that
racially discriminatory intent or purpose had not been proved, and
that the city had not departed significantly from normal procedures
in authorizing the closing. The Court of Appeals reversed and
remanded, holding that the street closing was invalid because it
adversely affected respondents' ability to hold and enjoy their
property. The court concluded that relief under § 1982 was required
by the facts (1) that the closing would benefit a white
neighborhood and adversely affect blacks; (2) that a barrier was to
be erected at the point of separation of the white and black
neighborhoods and would have the effect of limiting contact between
them; (3) that the closing was not part of a city-wide plan, but
rather was a "unique step to protect one neighborhood from outside
influences which the residents considered to be
undesirable"';
and (4) that there was evidence of economic depreciation in the
property values in the predominantly black area.
Held:
1. The record and the District Court's findings do not support
the Court of Appeals' conclusions. Pp.
451 U. S.
110-119.
Page 451 U. S. 101
2. The street closing did not violate § 1982. The evidence
failed to show that the street closing would prevent blacks from
exercising the same property rights as whites, that it depreciated
the value of blacks' property, or that it severely restricted
access to black homes. Rather, the record discloses that
respondents' only injury is the requirement that one street rather
than another must be used for certain trips within the city. Such
an injury does not involve any impairment to the kind of property
interests identified as being within the reach of § 1982. Pp.
451 U. S.
120-124.
3. Nor did the street closing violate the Thirteenth Amendment.
A review of the justification for the closing demonstrates that its
disparate impact on black citizens could not be fairly
characterized as a badge or incident of slavery. The record
discloses no discriminatory motive on the city's part, but rather
that the interests of safety and tranquility that motivated the
closing are legitimate. Such interests are sufficient to justify an
adverse impact on motorists who are somewhat inconvenienced by the
street closing. That inconvenience cannot be equated to an actual
restraint on liberty of black citizens that is in any sense
comparable to the odious practice the Thirteenth Amendment was
designed to eradicate. Pp.
451 U. S. 124-129.
610 F.2d 395, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined.
WHITE, J., filed an opinion concurring in the judgment,
post, p.
451 U. S. 129.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
BLACKMUN, JJ., joined,
post, p.
451 U. S.
135.
Page 451 U. S. 102
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether a decision by the city of
Memphis to close the north end of West Drive, a street that
traverses a white residential community, violated § 1 of the Civil
Rights Act of 1866, Rev.Stat. § 1978, 42 U.S.C. § 1982, or the
Thirteenth Amendment to the United States Constitution. [
Footnote 1] The city's action was
challenged by respondents, who resided in a predominantly black
area to the north. The Court of Appeals ultimately held the street
closing invalid because it adversely affected respondents' ability
to hold and enjoy their property. 610 F.2d 395. We reverse because
the record does not support that holding.
I
Most of the relevant facts concerning the geography, the
decision to close the street, and the course of the litigation are
not in dispute. The inferences to be drawn from the evidence,
however, are subject to some disagreement.
A.
Geography
Hein Park, a small residential community in Memphis, Tenn., is
bounded on three sides by thoroughfares and on the west by the
campus of Southwestern University. West Drive is a two-lane street
about a half mile long passing through the center of Hein Park. Its
southern terminus is a short distance from an entrance to Overton
Park, a large recreation
Page 451 U. S. 103
area containing, among other facilities, the municipal zoo.
[
Footnote 2] Its northern
terminus is at the intersection of Jackson Ave. and Springdale St.,
two heavily traveled four-lane avenues. West Drive is one of three
streets that enter Hein Park from the north; two streets enter from
the east.
The closing will have some effect on both through traffic and
local traffic. Prior to the closing, a significant volume of
traffic southbound on Springdale St. would continue south on West
Drive and then -- because of the location of Overton Park to the
south of Hein Park -- make either a right or a left turn to the
next through street a few blocks away, before resuming the
southerly route to the center of the city. The closing of West
Drive will force this traffic to divert to the east or west before
entering Hein Park, instead of when it leaves, but the closing will
not make the entire route any longer. With respect to local
traffic, the street closing will add some distance to the trip from
Springdale St. to the entrance to Overton Park, and will make
access to some homes in Hein Park slightly less convenient.
The area to the north of Hein Park is predominantly black. All
of the homes in Hein Park were owned by whites when the decision to
close the street was made.
B.
City Approval
In 1970, residents of Hein Park requested the city to close four
streets leading into the subdivision. After receiving objections
from the police, fire, and sanitation departments, the city denied
the request. [
Footnote 3] In
its report regarding the application,
Page 451 U. S. 104
the city's Traffic Engineering Department noted that much of the
traffic through the subdivision could be eliminated by closing West
Drive at Jackson Ave. Trial Exhibit 14. Thereafter, on July 9,
1973, members of the Hein Park Civic Association filed with the
Memphis and Shelby County Planning Commission a formal "Application
to Close Streets or Alleys" seeking permission to close West Drive
for 25 feet south of Jackson Ave.
See Trial Exhibit 13,
App. 135. The application was signed by the two property owners
abutting both Jackson Ave. and West Drive and all but one of the
other West Drive homeowners on the block immediately south of
Jackson Ave.
Ibid. [
Footnote 4] The stated reasons for the closing were:
"(1) Reduce flow of through traffic using subdivision
streets."
"(2) Increase safety to the many children who live in the
subdivision and those who use the subdivision to walk to Snowden
Junior High School."
"(3) Reduce 'traffic pollution' in a residential area,
e.g., noise, litter, interruption of community
living."
Ibid.
After receiving the views of interested municipal departments,
the County Planning Commission, on November 1, 1973, recommended
that the application be approved with the conditions that the
applicants provide either an easement for existing and future
utility company facilities or the funds to relocate existing
facilities, and that the closure provide clearance for fire
department vehicles. Trial Exhibit 4, App. 130. The City Council
held a hearing at which both proponents and opponents of the
proposal presented their views, and the Council adopted a
resolution authorizing the closing
Page 451 U. S. 105
subject to the conditions recommended by the Planning
Commission.
See Trial Exhibit 26. The city reconsidered
its action and held additional hearings on later dates, but never
rescinded its resolution. [
Footnote
5]
See Trial Exhibits 27-30, 41.
C.
Litigation
In a complaint filed against the city and various officials in
the United States District Court for the Western District of
Tennessee on April 1, 1974, three individuals and two civic
associations, suing on behalf of a class of residents north of
Jackson Ave. and west of Springdale St., alleged that the closing
was unconstitutional and prayed for an injunction requiring the
city to keep West Drive open for through traffic. [
Footnote 6] The District Court granted a
motion to dismiss, holding that the complaint, as amended, failed
to allege any injury to the plaintiffs' own property or any
disparate racial effect, [
Footnote
7] and
Page 451 U. S. 106
that they had no standing as affected property owners to raise
procedural objections to the city's action. [
Footnote 8]
The United States Court of Appeals for the Sixth Circuit
reversed. The court first noted that
"a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which will entitle him to
relief."
535 F.2d 976, 978. The court concluded that respondents'
complaint, fairly construed, alleged that the city had conferred
certain benefits -- "
to-wit, the privacy and quiet of an
exclusive dead-end street" -- on white residents that it refused to
confer on similarly situated black residents.
Ibid.
Accordingly, the court held that, if respondents could prove that
city officials conferred the benefit of a closed street on West
Drive residents "because of their color," respondents would have a
valid claim under either 42 U.S.C. § 1982 or § 1983. 535 F.2d at
979. [
Footnote 9]
Following the remand, the case was transferred to Judge McRae
for trial. Respondents amended their pleadings and, in pretrial
discovery, reviewed all street closings in Memphis during the prior
10-year period, as well as the entire record
Page 451 U. S. 107
concerning the closing of West Drive. An elaborate pretrial
order entered on February 9, 1978, identified three contested
issues of fact:
"(a) Whether the defendants, by closing West Drive, have
conferred certain benefits on white residents of West Drive that
they have refused to confer on similarly situated black
neighborhoods because of their color."
"(b) Whether a discriminatory purpose was a motivating factor in
the decision of the City Council to close West Drive."
"(c) Whether the defendants and their agents complied with the
normal procedural sequence in processing the application to close a
portion of West Drive. If not, the extent to which they failed to
comply."
App. 87.
After a full trial, Judge McRae filed a detailed memorandum
decision in which he found against the respondents on each of the
three contested issues of fact. He specifically concluded that the
action of the City Council closing West Drive "did not create a
benefit for white citizens which has been denied black citizens";
[
Footnote 10] that racially
discriminatory intent or purpose had not been proved; [
Footnote 11] and that the city
Page 451 U. S. 108
had not departed significantly from normal procedures in
authorizing the closing. [
Footnote 12] Accordingly, the District Court entered
judgment for the city.
The Court of Appeals did not reject any of the District Court's
findings of fact. The Court of Appeals did hold, however, that
Judge McRae had erred by limiting his focus to the issue of whether
the city had granted a street closing application made by whites,
while denying comparable benefits to blacks. 610 F.2d at 400-401.
Although the Court of Appeals recognized that the reasoning of its
earlier opinion could have induced such a narrow focus, and that
the record supported Judge McRae's findings on this issue, the
court held that the respondents need not show that the city had
denied street-closing applications submitted by black neighborhoods
to show a violation of § 1982. 610 F.2d at 400-402.
Page 451 U. S. 109
Rather, the court held that respondents could demonstrate that
this particular street closing was a "badge of slavery" under §
1982 and the Thirteenth Amendment without reference to the equal
treatment issue. [
Footnote
13]
The Court of Appeals recognized that a street closing may be a
legitimate and effective means of preserving the residential
character of a neighborhood and protecting it from the problems
caused by excessive traffic. 610 F.2d at 402. The Court of Appeals
concluded, however, that relief under § 1982 was required here by
the facts: (1) that the closing would benefit a white neighborhood
and adversely affect blacks; (2) that a "barrier was to be erected
precisely at the point of separation of these neighborhoods, and
would undoubtedly have the effect of limiting contact between
them"; (3) that the closing was not part of a city-wide plan, but
rather was a "unique step to protect one neighborhood from outside
influences which the residents considered to be
undesirable"';
and (4) that there was evidence of "an economic depreciation in the
property values in the predominantly black residential area."
[Footnote 14] Before
addressing the legal issues, we consider the
Page 451 U. S.
110
extent to which each of these conclusions is supported by
the record and the District Court's findings.
D.
The Evidence
The first of the four factual predicates for the Court of
Appeals' holding relates to the effect of the closing on black
residents, and is squarely rooted in the District Court's findings.
Judge McRae expressly found that the City Council action "will have
disproportionate impact on certain black citizens." App. 161. He
described the traffic that will be diverted by the closing as
"overwhelming black,"
ibid., and noted that the white
residents of West Drive will have less inconvenience. [
Footnote 15] We must note, however,
that, although neither Judge McRae nor the Court of Appeals focused
on the extent of the inconvenience to residents living north of
Jackson Ave., the record makes it clear that such inconvenience
will be minimal. A motorist southbound on Springdale St. could
continue south on West Drive for only a half mile before the end of
West Drive at Overton Park would necessitate
Page 451 U. S. 111
a turn. [
Footnote 16]
Thus, unless the motorist is going to Overton Park, the only effect
of the street closing for traffic proceeding south will be to
require a turn sooner, without lengthening the entire trip or
requiring any more turns. [
Footnote 17] Moreover, even the motorist going to Overton
Park had to make a turn from West Drive and a short drive down
North Parkway to reach the entrance to the park. The entire trip
from Springdale St. to the park will be slightly longer with West
Drive closed, but it will not be significantly less convenient.
[
Footnote 18] Thus, although
it is correct that the motorists who
Page 451 U. S. 112
will be inconvenienced by the closing are primarily black, the
extent of the inconvenience is not great.
As for the Court of Appeals' second point, the court attached
greater significance to the closing as a "barrier" between two
neighborhoods than appears warranted by the record. The physical
barrier is a curb that will not impede the passage of municipal
vehicles. [
Footnote 19]
Moreover, because only one of the several streets entering Hein
Park is closed to vehicular traffic, the other streets will provide
ample access to the residences in Hein Park. [
Footnote 20] The diversion of through traffic
around the Hein Park residential area affects the diverted
motorists, but does not support the suggestion that such diversion
will limit the social or commercial contact between residents of
neighboring communities. [
Footnote 21]
Page 451 U. S. 113
The Court of Appeals' reference to protecting the neighborhood
from "undesirable" outside influences may be read
Page 451 U. S. 114
as suggesting that the court viewed the closure as motivated by
the racial attitude of the residents of Hein Park. The District
Court's findings do not support that view of the record. Judge
McRae expressly discounted the racial composition of the traffic on
West Drive in evaluating its undesirable character; he noted
that
"excessive traffic in any residential neighborhood has public
welfare factors such as safety, noise, and litter, regardless of
the race of the traffic and the neighborhood."
App. 161. The transcript of the City Council hearings indicates
that the residents of West Drive perceived the traffic to be a
problem because of the number and speed of the cars traveling down
West Drive. [
Footnote 22]
Even if the statements of the residents of West Drive are
discounted as self-serving, there is no evidence that the closing
was motivated by any racially exclusionary desire. [
Footnote 23] The City Council members who
favored the closing expressed concerns similar to those of the West
Drive residents. [
Footnote
24] Those who
Page 451 U. S. 115
opposed the resolution did so because they believed that a less
drastic response to the traffic problems would be adequate and that
the closing would create a dangerous precedent. [
Footnote 25] The one witness at trial who
testified that "someone" soliciting signatures for a petition
favoring the closure had described the traffic on West Drive as
"undesirable traffic," stated that the solicitor mentioned excess
traffic and danger to children as reasons for signing. [
Footnote 26] Unlike the Court of
Appeals,
Page 451 U. S. 116
we therefore believe that the "undesirable" character of the
traffic flow must be viewed as a factor supporting, rather than
undermining, the validity of the closure decision. To the extent
that the Court of Appeals' opinion can be read as making a finding
of discriminatory intent, the record requires us to reject that
finding in favor of the District Court's contrary conclusion. Judge
McRae expressly found that the respondents had not proved that the
City Council had acted with discriminatory intent. App. 161.
[
Footnote 27]
Page 451 U. S. 117
Finally, the Court of Appeals was not justified in inferring
that the closure would cause "an economic depreciation in the
property values in the predominantly black residential area. . . ."
610 F.2d at 404. The only expert testimony credited by the District
Court on that issue was provided by a real estate broker called by
the plaintiffs. [
Footnote
28] His expert opinion, as summarized by the District Court,
was that "there would not be a decrease in value experienced by
property owners located to the north of West Drive because of the
closure." App. 155. After the witness had expressed that opinion,
he admittedly speculated that some property owners to the north
might be envious of the better housing that they could not afford,
and therefore might be less attentive to the upkeep of their own
property, which, in turn, "could have a detrimental effect on the
property values in the future." [
Footnote 29]
Page 451 U. S. 118
In our opinion, the District Court correctly refused to find an
adverse impact on black property values based on that speculation.
[
Footnote 30]
Page 451 U. S. 119
In summary, then, the critical facts established by the record
are these: the city's decision to close West Drive was motivated by
its interest in protecting the safety and tranquility of a
residential neighborhood. The procedures followed in making the
decision were fair, and were not affected by any racial or other
impermissible factors. The city has conferred a benefit on certain
white property owners, but there is no reason to believe that it
would refuse to confer a comparable benefit on black property
owners. The closing has not affected the value of property owned by
black citizens, but it has caused some slight inconvenience to
black motorists.
II
Under the Court's recent decisions in
Washington v.
Davis, 426 U. S. 229, and
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U. S. 252, the
absence of proof of discriminatory intent forecloses any claim that
the official action challenged in this case violates the Equal
Protection Clause of the Fourteenth Amendment. Petitioners ask us
to hold that respondents' claims under § 1982 and the Thirteenth
Amendment are likewise barred by the absence of proof of
discriminatory purpose. We note initially that the coverage of
both
Page 451 U. S. 120
§ 1982 and the Thirteenth Amendment is significantly different
from the coverage of the Fourteenth Amendment. The prohibitions of
the latter apply only to official action, or, as implemented by 42
U.S.C. § 1983 (1976 ed., Supp. III), to action taken under color of
state law. We have squarely decided, however, that § 1982 is
directly applicable to private parties,
Jones v. Alfred H.
Mayer Co., 392 U. S. 409;
cf. Runyon v. McCrary, 427 U. S. 160,
427 U. S.
170-174; and it has long been settled that the
Thirteenth Amendment
"is not a mere prohibition of State laws establishing or
upholding slavery, but an absolute declaration that slavery or
involuntary servitude shall not exist in any part of the United
States."
Civil Rights Cases, 109 U. S. 3,
109 U. S. 20.
Thus, although respondents challenge official action in this case,
the provisions of the law on which the challenge is based cover
certain private action, as well. Rather than confront prematurely
the rather general question whether either § 1982 or the Thirteenth
Amendment requires proof of a specific unlawful purpose, we first
consider the extent to which either provision applies at all to
this street closing case. We of course deal first with the
statutory question.
III
Section 1982 provides:
"All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof
to inherit, purchase, lease, sell hold, and convey real and
personal property."
To effectuate the remedial purposes of the statute, the Court
has broadly construed this language to protect not merely the
enforceability of property interests acquired by black citizens,
but also their right to acquire and use property on an equal basis
with white citizens. Thus, in
Hurd v. Hodge, 334 U. S.
24, the Court refused to permit enforcement of private
covenants imposing racial restrictions on the sale of property even
though the legal rights of blacks
Page 451 U. S. 121
to purchase or to sell other property were unimpaired. [
Footnote 31] In
Jones,
supra, we held that § 1982 "must encompass every racially
motivated refusal to sell or rent." 392 U.S. at
392 U. S.
421-422. [
Footnote
32] In
Sullivan v. Little Hunting Park, Inc.,
396 U. S. 229, we
interpreted the term "lease" in § 1982 to include an assignable
membership share in recreational facilities. [
Footnote 33] In
Tillman
v. Wheaton-Haven Recreation Assn., Inc., 410
U.S.
Page 451 U. S. 122
431, we extended that holding to cover a preference to purchase
a nontransferable swim club membership. [
Footnote 34] Although these cases broadly defined the
property rights protected by § 1982, our cases, like the statutory
language itself, all concerned the right of black persons to hold
and acquire property on an equal basis with white persons and the
right of blacks not to have property interests impaired because of
their race. [
Footnote
35]
Page 451 U. S. 123
Therefore, as applied to this case, the threshold inquiry under
1982 must focus on the relationship between the street closing and
the property interests of the respondents. As the Court of Appeals
correctly noted in its first opinion, the statute would support a
challenge to municipal action benefiting white property owners that
would be refused to similarly situated black property owners. For
official action of that kind would prevent blacks from exercising
the same property rights as whites. But respondents' evidence
failed to support this legal theory. Alternatively, as the Court of
Appeals held in its second opinion, the statute might be violated
by official action that depreciated the value of property owned by
black citizens. But this record discloses no effect on the value of
property owned by any member of the respondent class. Finally, the
statute might be violated if the street closing severely restricted
access to black homes, because blacks would then be hampered in the
use of their property. Again, the record discloses no such
restriction. [
Footnote
36]
Page 451 U. S. 124
The injury to respondents established by the record is the
requirement that one public street rather than another must be used
for certain trips within the city. We need not assess the magnitude
of that injury to conclude that it does not involve any impairment
to the kind of property interests that we have identified as being
within the reach of § 1982. We therefore must consider whether the
street closing violated respondents' constitutional rights.
IV
In relevant part, the Thirteenth Amendment provides:
"Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."
In this case, respondents challenge the conferring of a benefit
upon white citizens by a measure that places a burden on black
citizens as an unconstitutional "badge of slavery." Relying on
Justice Black's opinion for the Court in
Palmer v.
Thompson, 403 U. S. 217, the
city argues that, in the absence of a violation of specific
enabling legislation enacted pursuant to § 2 of the Thirteenth
Amendment, any judicial characterization of an isolated street
closing as a badge of slavery would constitute the usurpation of "a
law-making power far beyond the imagination of the amendment's
authors."
Id. at
403 U. S. 227.
[
Footnote 37]
Pursuant to the authority created by § 2 of the Thirteenth
Page 451 U. S. 125
Amendment, Congress has enacted legislation to abolish both the
conditions of involuntary servitude and the "badges and incidents
of slavery." [
Footnote 38]
The exercise of that authority is not inconsistent with the view
that the Amendment has self-executing force. As the Court noted in
Jones v. Alfred H. Mayer Co., 392 U.S. at
392 U. S.
439:
"'By its own unaided force and effect,' the Thirteenth Amendment
'abolished slavery' and established 'universal freedom.'
Civil
Rights Cases, 109 U. S. 3,
109 U. S.
20. Whether or not the Amendment
itself did any
more than that -- a question not involved in this case -- it is at
least clear that the Enabling Clause of that Amendment empowered
Congress to do much more. [
Footnote 39]"
In
Jones, the Court left open the question whether § 1
of the Amendment, by its own terms, did anything more than
abolish
Page 451 U. S. 126
slavery. [
Footnote 40] It
is also appropriate today to leave that question open, because a
review of the justification for the official action challenged in
this case demonstrates that its disparate impact on black citizens
could not, in any event, be fairly characterized as a badge or
incident of slavery.
We begin our examination of respondents' Thirteenth Amendment
argument by reiterating the conclusion that the record discloses no
racially discriminatory motive on the part of the City Council.
[
Footnote 41] Instead, the
record demonstrates that the interests that did motivate the
Council are legitimate. Proper management of the flow of vehicular
traffic within a city requires the accommodation of a variety of
conflicting interests: the motorist's interest in unhindered access
to his destination, the city's interest in the efficient provision
of municipal services, the commercial interest in adequate parking,
the residents' interest in relative quiet, and the pedestrians'
interest in safety. Local governments necessarily exercise wide
discretion in making the policy decisions that accommodate these
interests.
In this case, the city favored the interests of safety and
tranquility. As a matter of constitutional law, a city's power to
adopt rules that will avoid anticipated traffic safety problems is
the same as its power to correct those hazards that have been
revealed by actual events. The decision to reduce the flow of
traffic on West Drive was motivated, in part, by
Page 451 U. S. 127
an interest in the safety of children walking to school.
[
Footnote 42] That interest
is equally legitimate whether it provides support for an arguably
unnecessary preventive measure or for a community's reaction to a
tragic accident that adequate planning might have prevented.
See Thomas Cusack Co. v. Chicago, 242 U.
S. 526.
The residential interest in comparative tranquility is also
unquestionably legitimate. That interest provides support for
zoning regulations, designed to protect a "quiet place where yards
are wide, people few, and motor vehicles restricted. . . ."
Village of Belle Terre v. Boraas, 416 U. S.
1,
416 U. S. 9;
Arlington County Board v. Richards, 434 U. S.
5, and for the accepted view that a man's home is his
castle. The interest in privacy has the same dignity in a densely
populated apartment complex,
cf. Payton v. New York,
445 U. S. 573, or
in an affluent neighborhood of single-family homes. [
Footnote 43] In either context, the
protection of the individual interest may involve the imposition of
some burdens on the general public.
Whether the individual privacy interests of the residents of
Hein Park, coupled with the interest in safety, should be
considered strong enough to overcome the more general interest in
the use of West Drive as a thoroughfare is the type of question
that a multitude of local governments must resolve every day.
Because there is no basis for concluding that the interests favored
by the city in its decision were contrived or pretextual, the
District Court correctly concluded that it had no authority to
review the wisdom of the city's policy decision.
See Railway
Express Agency, Inc. v. New York, 336 U.
S. 106,
336 U. S.
109.
Page 451 U. S. 128
The interests motivating the city's action are thus sufficient
to justify an adverse impact on motorists who are somewhat
inconvenienced by the street closing. That inconvenience cannot be
equated to an actual restraint on the liberty of black citizens
that is in any sense comparable to the odious practice the
Thirteenth Amendment was designed to eradicate. The argument that
the closing violates the Amendment must therefore rest not on the
actual consequences of the closing, but rather on the symbolic
significance of the fact that most of the drivers who will be
inconvenienced by the action are black.
But the inconvenience of the drivers is a function of where they
live and where they regularly drive -- not a function of their
race; the hazards and the inconvenience that the closing is
intended to minimize are a function of the number of vehicles
involved, not the race of their drivers or of the local residents.
Almost any traffic regulation -- whether it be a temporary detour
during construction, a speed limit, a one-way street, or a
no-parking sign -- may have a differential impact on residents of
adjacent or nearby neighborhoods. Because urban neighborhoods are
so frequently characterized by a common ethnic or racial heritage,
a regulation's adverse impact on a particular neighborhood will
often have a disparate effect on an identifiable ethnic or racial
group. To regard an inevitable consequence of that kind as a form
of stigma so severe as to violate the Thirteenth Amendment would
trivialize the great purpose of that charter of freedom. Proper
respect for the dignity of the residents of any neighborhood
requires that they accept the same burdens as well as the same
benefits of citizenship regardless of their racial or ethnic
origin.
This case does not disclose a violation of any of the enabling
legislation enacted by Congress pursuant to § 2 of the Thirteenth
Amendment. To decide the narrow constitutional question presented
by this record, we need not speculate about the sort of impact on a
racial group that might be
Page 451 U. S. 129
prohibited by the Amendment itself. We merely hold that the
impact of the closing of West Drive on nonresidents of Hein Park is
a routine burden of citizenship; it does not reflect a violation of
the Thirteenth Amendment.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
Section 1982 provides:
"All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof
to inherit, purchase, lease, sell, hold, and convey real and
personal property."
The Thirteenth Amendment provides:
"Section 1. Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."
"Section 2. Congress shall have power to enforce this article by
appropriate legislation."
[
Footnote 2]
Overton Park was described in
Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U. S. 402,
401 U. S.
406:
"Overton Park is a 342-acre city park located near the center of
Memphis. The park contains a zoo, a nine-hole municipal golf
course, an outdoor theater, nature trails, a bridle path, an art
academy, picnic areas, and 170 acres of forest."
[
Footnote 3]
See Trial Exhibit 14. This history points up the
distinction between what the local residents may request or desire
and what action the city may authorize. It is, of course, the
city's action that is challenged in this litigation.
[
Footnote 4]
Only the signatures of the "abutting property owners" were
required on the application.
[
Footnote 5]
The opponents of the closing submitted to the Council written
objections containing approximately 1,000 signatures.
[
Footnote 6]
App. 4-5. In 1977, the District Court granted a motion to
intervene made by three additional individual plaintiffs who lived
north of Jackson Ave.
Id. at 46-54. The class ultimately
certified by the District Court consisted of
"black persons in the City of Memphis who own or stand to
inherit property surrounding and adjoining the area along West
Drive and Hein Park Subdivision."
Stipulation of Parties as to Maintenance of Cause as a Rule
23(b)(2) Class Action, Record Doc. No. 23; Order Granting Motion to
Amend and Certification of Class Action, App. 67. The original
complaint also challenged the city's action in striking from the
municipal budget the construction of a $750,000 federal-state
financed community center in the plaintiffs' neighborhood.
Id. at 4. No question related to that challenge remains in
the litigation.
[
Footnote 7]
"None of the plaintiffs [live] on West Drive; none are deprived
of reasonable ingress and egress to their property; the street is
not proposed to be closed to blacks and open to whites. In short,
the effect of the proposed closing, whether wise or unwise, is the
same upon whites as it is to blacks.
Palmer v. Thompson,
403 U. S.
217. . . . There is no facial discriminatory import to
the resolution of closure, and there is no assertion that it will
be implemented or administered in a racially discriminatory fashion
or effect. Plaintiffs complain only that they will be denied access
to West Drive from the north just as every other citizen will
be."
Id. at 29-30 (footnote omitted).
[
Footnote 8]
"Plaintiffs have no constitutional property rights in continued
access to West Drive under the facts asserted or on the basis
asserted in the complaint. They have no standing as affected
property owners on the street to due process notice and
hearing."
Id. at 31.
[
Footnote 9]
The Court of Appeals summarized its holding as follows:
"To establish a section 1982 or 1983 claim on remand, Greene
must prove his allegations that city officials conferred the closed
street on West Drive residents because of their color; he must
prove racial motivation, intent or purpose, in the absence of such
egregious differential treatment as to, in itself, violate equal
protection or, alternatively, to command an inference of racial
motivation. . . ."
". . . According to the instant complaint allegations, the
closing of West Drive left certain white residents with privacy and
quiet of a dead-end street, though black residents, for racial
reasons, have been and would be unable to acquire such a dead-end
street."
535 F.2d at 979-980.
[
Footnote 10]
"Upon a consideration of the facts established, this Court
concludes that the action of the City Council which undertakes to
close West Drive did not create a benefit for white citizens which
has been denied black citizens. The proof shows that this is the
only time that the street and alley closing procedure has been used
to close a street which serves as a thoroughfare for the residents
and the public. From the standpoint that the closing procedure has
been used to close alleys and dedicated but unused streets, the
proof shows that the procedure has benefited black citizens as well
as white citizens."
App. 159.
[
Footnote 11]
"This Court concludes that the closure of West Drive in the
manner adopted by the City Council will have disproportionate
impact on certain black citizens. However, the Court also concludes
that there is not sufficient proof of racially discriminatory
intent or purpose on the part of the city officials to establish a
constitutional violation."
"As heretofore indicated, by placing the narrow barrier at the
intersection of West Drive and Jackson, the southbound
overwhelmingly black traffic will no longer be allowed to continue
a logical and direct route across Jackson. At the same time the
white residents of West Drive will have considerably less traffic.
The residents of West Drive also will have less inconvenience,
because most of their movement will logically take them southbound
on departure and northbound on return."
"However, this Court does not believe that the disparate impact
is so stark that a purpose or intent of racial discrimination may
be inferred. It must be noted that excessive traffic in any
residential neighborhood has public welfare factors such as safety,
noise, and litter, regardless of the race of the traffic and the
neighborhood."
"
* * * *"
"Similarly this Court does not find a purpose or intent to
racially discriminate based upon a consideration of other evidence
in the case as directed in
Arlington Heights v. Metropolitan Housing
Corp., [
429 U.S.
252,
429 U. S. 267-268.]"
Id. at 161-162.
[
Footnote 12]
Respondents had contended that procedural defects violated state
law and the Due Process Clause of the Fourteenth Amendment, and
also provided evidence of an intent to discriminate. Judge McRae
considered and rejected each of these contentions.
Id. at
149-153, 162-163. Although the briefs and oral arguments in this
Court contained discussion of procedural issues, inasmuch as the
Court of Appeals did not rely upon such issues and we find no error
in their treatment by the District Court, they will not be further
discussed.
[
Footnote 13]
The court purported to leave open the question whether intent is
ever an element of a plaintiff's § 1982 case. 610 F.2d at 404, n.
13.
[
Footnote 14]
The Court of Appeals summarized its holding in this
paragraph:
"Without endeavoring to establish any legal guidelines for the
determination of when conduct may amount to a badge of slavery, we
find the determinations made by the district court here to be
altogether adequate to bring the conduct complained of within that
description. The community to be benefited by the closing was, and
had historically been, all white. Conversely, the territory to be
burdened by the closing was predominantly black. The barrier was to
be erected precisely at the point of separation of these
neighborhoods, and would undoubtedly have the effect of limiting
contact between them. The proposed closing was not enacted in
response to any uniform city planning effort, directed generally to
the preservation of the residential neighborhoods throughout the
city; instead it appears to have been a unique step to protect one
neighborhood from outside influences which the residents considered
to be 'undesirable.' Finally, there was some evidence, credited by
the district court, of an economic depreciation in the property
values in the predominantly black residential area with a
corresponding increase in the property values in Hein Park. The
result, under the unique circumstances here, can only be seen as
one more of the many humiliations which society has historically
visited upon blacks. Where that racial humiliation not only rises
to the level of a badge of slavery but also affects the right of
blacks to hold property in the same manner as other citizens, then
Section 1982 has been violated, and the federal courts must provide
a suitable remedy."
Id. at 404 (footnote omitted) .
[
Footnote 15]
Judge McRae noted that the West Drive residents will have the
benefit of less traffic and will be inconvenienced less than the
black residents living north of Jackson Ave., because the movement
of the West Drive residents "will logically take them southbound on
departure and northbound on return." App. 161. Judge McRae plainly
stated his opinion that the street closing was unwise because it
will interfere with the provision of municipal services and
encourage vandalism in the neighborhood.
Ibid. He clearly
concluded, however, that the adverse impact on blacks was greater
than on whites.
[
Footnote 16]
Robert Miller, Executive Director of the Planning Commission
testified:
"[T]he Planning Commission and council didn't think that closing
this intersection would really impede the traffic, because West
Drive didn't go anywhere anyway. It is not like closing a major
street in this area that goes for miles and miles and go into
strategic landmarks in Memphis, strategic locations that people are
getting to."
Tr. 26. One City Council member expressed surprise that anyone
from north of Jackson Ave. would want to use West Drive, inasmuch
as West Drive is a two-lane street with no traffic light, and the
alternative routes are four-lane streets with traffic lights.
See Trial Exhibit 26, pp. 32-33 (remarks of Mr.
Hyman).
[
Footnote 17]
Although the street closing will also have an effect on
motorists driving north along West Drive and will make the homes of
the plaintiff class less accessible, the location of Overton Park
will prevent motorists from using West Drive as a direct northern
route.
[
Footnote 18]
See Tr. 164-165. The District Court summarized one
respondent's claim of inconvenience:
"Plaintiff N. T. Greene testified at the trial in this Court
that the closure would compound the multitude of negative
experiences that he has encountered as a black person. He
complained that the closure would prevent convenient vehicular
access to various facilities contained in Overton Park, and would
cause him, his family, and neighbors psychological and emotional
damage. His home is located on Terry Circle in Memphis, Tennessee,
which is northwest from the intersection of West Drive and Jackson
Avenue (T.E. 22). Insofar as his use of West Drive to and from his
residence, the closure would cause him no actual
inconvenience."
App. 154. Mr. Greene lives 1 1/2 miles from the Jackson
Ave.-West Drive intersection.
See Tr. 45. A portion of Mr.
Greene's testimony is quoted in the dissenting opinion,
post at
451 U. S. 140,
n. 3.
[
Footnote 19]
The District Court described the closing as follows:
"The partial closing will be accomplished by having the
northernmost property owners on West Drive buy a 25-foot east-west
strip across the entire width of the street. Because officials of
certain departments of the city deem it necessary that public
service vehicles will be able to cross the strip, a 24-foot gap
will be left in the barricade. There will be a speed breaker across
the gap, but other details, such as signs, have not been
finalized."
App. 148-149.
[
Footnote 20]
The District Court summarized the testimony of one witness who
testified about the actual difficulty involved in reaching Hein
Park homes:
"Mrs. Elnora Priest Cross, an intervening plaintiff, testified
that she would like to be able to go through West Drive. She has a
friend who works at the home of someone who lives on West Drive and
contacts her in the event of an emergency.[2]"
"[2]Mrs. Cross will still be able to reach her friend; however,
she will be inconvenienced by having to use a different route."
App. 154. Mrs. Cross lives 3 1/2 miles to the northwest of the
Jackson Ave.-West Drive intersection. Tr. 62. A portion of Mrs.
Cross' testimony is quoted in the dissenting opinion,
post
at
451 U. S. 140,
n. 3.
[
Footnote 21]
Whether the closing will have the effect of barring pedestrians
from access to West Drive from Jackson Ave. is not entirely clear
from the record. At trial, Judge McRae asked Robert Miller, the
Executive Director of the Planning Commission, whether the City
Council resolution, which stated that the portion of West Drive to
be deeded to the property owners abutting West Drive and Jackson
Ave. was to be "closed to the public," meant that the public could
not walk across the property. The question produced the following
testimony:
"THE WITNESS: No. I don't think it means that. I think it was
closed to vehicular traffic."
"THE COURT: All right."
"THE WITNESS: I think if you want to walk through there you
still can do that according to the plan. There is not a high curb
there, it is sort of like a roll curb, but the intended closing was
for the obstruction of vehicular traffic."
"THE COURT: Do you think that that has been made plain to these
-- "
"THE WITNESS: (Interjecting) I believe so. That was brought out
at the hearings."
"There was no intention not to let people walk on through there
if they wanted to, to my knowledge."
"THE COURT: Are you going to be happy if somebody tries to stop
a pedestrian and have them say, 'Bob Miller said I could do
this.'"
"THE WITNESS: Well, all I can indicate to you -- well, let me
say this. There are conditions imposed in that closing. Emergency
vehicles can plow on through that."
"THE COURT: That is not the public, though."
"THE WITNESS: No, that is not the public, that is the city. I
think the intent of the thing was not to fence it so that nobody
could walk through. But to plant it, put I roll curb in there, and
to completely discourage the use of automobiles through that
portion that is closed; automobiles, trucks, what have you --
vehicles."
"THE COURT: All right."
"Thank you Mr. Miller."
Tr. 215-216. Mr. Miller later admitted, however, that the
portion of the street deeded by the city would become part of the
lots of the abutting property owners, that the only restrictions on
the deeds would be those requiring access by municipal vehicles,
and that pedestrians walking across the strip of land would be
walking across private property.
Id. at 218-219. The
abutting property owners did not testify at trial, and the District
Court made no finding on this issue. The Court of Appeals noted
that, although the record was unclear as to whether the abutting
property owners would, in fact, bar all foot traffic, "it is clear
that the proposed conveyance will leave them with the absolute
right to do so if they wish. . . ." 610 F.2d at 396.
[
Footnote 22]
Dr. Bill Weber, a resident of West Drive, stated in support of
the closing that traffic studies had counted 1,600 to 1,700 cars
per 12-hour period traveling down West Drive, and 200 cars per hour
during the peak morning and afternoon periods. He stated that "we
feel this is excessive traffic for a residential area." Trial
Exhibit 26, p. 11. Mrs. Betsy Robbins, another resident of West
Drive, stated:
"We're an active part of our area. This is our area. But in the
midst of our interests in the whole area we found that one of the
major problems is on our own doorstep. The hazardous traffic on
West Drive. Our greatest worry here is children. . . . In addition
to all the children on the street, each school morning and
afternoon about 150 youngsters cross West Drive at my corner going
to and from Snowden School. The stop sign on this corner is
frequently ignored by swift traffic. Daily, I find myself rushing
to the window when I hear screeching brakes. I'm terrified that
some driver has hit a child."
Id. at 15.
[
Footnote 23]
We must bear in mind that respondents have sued the city, the
Mayor, and the City Council and its chairman. Therefore, we must
focus on the decisions of these public officials, and not on the
actions of the residents of Hein Park, in determining whether
respondents have proved their claim.
[
Footnote 24]
One Council member stated that the major streets running
parallel to West Drive to the east and to the west are only
six-tenths of a mile apart, and "are designed to be thoroughfares."
West Drive, however, "is not designed and never was designed to be
a thoroughfare" bearing the burden of heavy traffic.
Id.
at 31-32 (remarks of Mrs. Awsumb). Another Council member stated
from personal experience that traffic was heavy on West Drive even
at night, and expressed doubt that a compromise, such as
speedbreakers at the intersection of West Drive and Jackson Ave.,
would be sufficient to stop the "hotrodders."
Id. at 31
(remarks of Mr. Love). The Council discussed a traffic study which
showed that 22,505 vehicles entered the West Drive-North Parkway
intersection during a 12-hour period, and that 820 of these cars
exited from West Drive onto North Parkway.
Id. at 34.
[
Footnote 25]
In moving for reconsideration of the Council resolution,
Councilman Alissandratos stated:
"While I certainly feel for particular neighborhood and
appreciate the fact that they want to maintain a high standard of a
neighborhood, we are still involved with a street that is operated
and maintained by taxpayers money, and I think it would be an
injustice to close it, in addition to the fact that it would be
establishing a very dangerous president [
sic] in the rest
of the City."
Trial Exhibit 27, p. 2.
See also id. at 3, 4 (remarks
of Mr. James). The Council members who opposed the closing
preferred a compromise solution to the traffic problem, such as a
low speed limit and speedbreakers.
See Trial Exhibit 26,
p. 28 (remarks of Mr. Davis);
ibid. (remarks of Mr. Ford);
id. at 29-31 (remarks of Mr. Alissandratos).
[
Footnote 26]
Mrs. Terry, the one resident of the block of West Drive closest
to Jackson Ave. who did not sign the application to close the
street and who testified against the closing at the City Council
hearing, testified as follows at the trial:
"Q. Were you approached by anyone who asked you to sign this
petition? A. Yes."
"Q. Did they give you any reason as to why they would like to
have you sign their petition? A. That there was excess traffic on
the street and it was dangerous for children. It was my
understanding that trash was thrown out of windows of cars and
stuff like that, so it made our street littered."
"Q. Based on what was told to you during those encounters, did
you gain the impression that there was any racial consideration? A.
At one point, someone said to us, the person who was passing the
petition, that the traffic on the street was undesirable traffic.
And I did not ask what that person meant."
"Q. Did they make any reference to the people of North Memphis?
A. Just the people coming through Hein Park."
"Q. How did they describe them? A. This was just one statement,
that the traffic was undesirable traffic. But now, you see I did
not ask a question to pursue that."
App. 114 115. Even if Mrs. Terry did receive the impression that
the person who spoke to her considered the traffic undesirable
because of the race of the drivers, that isolated bit of hearsay
evidence is not sufficient to justify a Court of Appeals' finding
that the City Council was motivated by racial animus when the
District Court made a contrary finding on the basis of the record
as a whole.
[
Footnote 27]
As JUSTICE MARSHALL correctly notes in dissent, the city of
Memphis continued to oppose the prompt desegregation of its
municipal parks and recreational facilities as late as 1963,
see Watson v. Memphis, 373 U. S. 526,
cited
post at
451 U. S. 144,
n. 10, and
451 U. S. 152;
moreover, the pre-World War II development of Hein Park may well
have been influenced by the racial segregation which was then
common,
see post at
451 U. S. 137,
and the record contains evidence that racial prejudice still exists
in Memphis,
see post at
451 U. S. 142,
n. 7. We agree with JUSTICE MARSHALL that these facts are relevant,
but we cannot say that they required the District Court to find
that the City Council's action in this case was racially motivated,
or that its contrary finding is erroneous as a matter of law.
Indeed, JUSTICE MARSHALL's own interpretation of the record is
somewhat ambivalent, since he sometimes refers to the evidence as
supporting a "strong inference" of racial motivation,
post
at
451 U. S. 153,
and elsewhere implies that the city's action was taken "
solely
because of . . . race,'" see ibid. The record plainly does
not support a conclusion that the residents of Hein Park would have
welcomed the heavy flow of transient traffic through their
neighborhood if the drivers had been predominantly white. It is
unlikely that a mother who finds herself "rushing to the window
when I hear screeching brakes," see n 22, supra, is concerned about the
race of the driver of the vehicle.
[
Footnote 28]
One of the named respondents and a class member also offered
their opinion as to the effect of the closing on the value of their
homes. Respondent Greene expressed the opinion that the enhancement
of the value of the white-owned homes and the restricted
accessibility of his home would have a detrimental effect on the
value of his home. Tr. 38. One homeowner who lived to the north of
Jackson Ave. expressed the opinion that the street closing would
depreciate the value of his property because it would increase the
amount of traffic on his street.
Id. at 128. The record
does not support the suggestion that the closing will affect the
traffic flow north of Jackson Ave. or impede access to any
residence to the north. Neither the Court of Appeals nor the
District Court relied on the testimony of these two witnesses.
[
Footnote 29]
Because any adverse effect on property values has critical
importance in our consideration of § 1982, we quote the relevant
testimony of the witness Moore in full
"Q. Now, Mr. Moore, what effect, if any, would this proposed
closure have on the property values in the Springdale area; just
across Jackson there? A. I am intimately familiar with the
Springdale area, having been a real estate agent who more or less
was instrumental in providing some houses for those in low economic
groups in that area."
"From an economic standpoint, there would not be a lessening of
value in those properties in the Springdale area, but from a
psychological standpoint, it would have a tendency to have a
demoralizing -- "
"Mr. Holmes: (Interjecting) I object to that answer. He is not
qualified as an expert in psychological opinions."
"Mr. Wharton: Well, if he would like to strike that whole
answer, we don't have a problem with that."
"Mr. Holmes: Well, we only object to the psychological
evaluation. He has stated that the property values. in and of
themselves. would not go down."
"The Court: Right."
"Mr. Wharton: From his real estate background."
"Q. (By Mr. Wharton) Would you please continue with your
response, Mr. Moore? A. In my opinion, with the 17 years experience
in the real estate industry, psychologically it would have a
deterring, depressing effect on those individuals who might live
north of the Hein Park area. With the closure of the street, the
creation of another little haven, the fact that these people are in
a lower economic social group and wouldn't be able to actually
afford housing with the illustrious price tags of those houses in
the Hein Park area, it would be, in my opinion, like the individual
looking in the pastry store who doesn't have a dime and who can't
afford it. And consequently, as a result of such, their moralistic
values on their properties could tend to be such that the upkeep
would not be nearly so great, and it could have a detrimental
effect on the property values in the future."
App. 111-112.
[
Footnote 30]
Plaintiffs also called Dr. Feit, a clinical assistant professor
in the Department of Psychiatry, University of Tennessee Center of
Health Sciences, as an expert witness. The District Court
summarized Dr. Feit's testimony as follows:
"Dr. Marvin Feit, an assistant professor at the University of
Tennessee School of Social Work, testified that it was his opinion
that closing West Drive would result in negative consequences in
the form of hostility towards the people who live in Hein Park,
increased vandalism, school harassment, and increased arrests by
police. He also was of the opinion that the closure would result in
more disgruntled drivers."
Id. at 155.
Over defendants' objection that he was testifying to matters
outside his area of expertise,
see Tr. 10110, Dr. Feit
also testified as follows:
"Q Before the luncheon recess, we were at the point of asking
Dr. Feit to give his professional opinion as to the negative
psychological consequences of the possible closure of West Drive,
and how those consequences might affect property values, and I will
ask you to answer that question."
"A Well, particularly on the north of Jackson, it is very likely
that the property values will go down, whereas, in Hein Park, it is
most likely that they will rise equal to the rather exclusive area;
whereas the area north of Jackson will go down because of the
increase in the volume of traffic, which has nowhere to go."
Id. at 118-119. The District Court did not credit this
testimony.
[
Footnote 31]
The Court stated:
"The Negro petitioners entered into contracts of sale with
willing sellers for the purchase of properties upon which they
desired to establish homes. Solely because of their race and color,
they are confronted with orders of court divesting their titles in
the properties and ordering that the premises be vacated. White
sellers, one of whom is a petitioner here, have been enjoined from
selling the properties to any Negro or colored person. Under such
circumstances, to suggest that the Negro petitioners have been
accorded the same rights as white citizens to purchase, hold, and
convey real property is to reject the plain meaning of
language."
334 U.S. at
334 U. S.
34.
[
Footnote 32]
The Court indicated that Congress had the power, through the
passage of § 1982, to eradicate such discrimination:
"At the very least, the freedom that Congress is empowered to
secure under the Thirteenth Amendment includes the freedom to buy
whatever a white man can buy, the right to live wherever a white
man can live. If Congress cannot say that being a free man means at
least this much, then the Thirteenth Amendment made a promise the
Nation cannot keep."
392 U.S. at
392 U. S.
443.
[
Footnote 33]
Little Hunting Park, Inc., was a corporation organized to
operate recreational facilities for the benefit of residents of
Fairfax County, Va. A person holding a membership share who rented
his home to another was entitled to assign his share to the lessee.
This Court held that both the lessor and the lessee had a cause of
action under § 1982 for the corporation's refusal, on racial
grounds, to approve such an assignment. The Court held that the
membership was part of the lease, and that the right to lease was
specifically guaranteed by § 1982:
"There has never been any doubt but that Freeman paid part of
his $129 monthly rental for the assignment of the membership share
in Little Hunting Park. . . . Respondents' actions in refusing to
approve the assignment of the membership share in this case was
clearly an interference with Freeman's right to 'lease.'"
396 U.S. at
396 U. S.
236-237.
[
Footnote 34]
Any resident of a geographical area within a 3/4-mile radius of
the swim club received three preferences: the right to apply for
membership without seeking the recommendation of a current member,
a preference over nonresidents when applying for a vacancy, and the
right to pass to the successor in title of his home the first
option on the membership. 410 U.S. at
410 U. S. 436.
The Court held that these preferences conferred property rights on
the owner of a home in the area of the swim club that could not be
denied on the basis of the homeowner's race. The Court noted that
the right to confer an option on a subsequent purchaser could have
an effect on the value of a home. Furthermore:
"[T]he automatic waiting list preference given to residents of
the favored area may have affected the price paid by the Presses
when they bought their home. Thus the purchase price to them, like
the rental paid by Freeman in
Sullivan, may well reflect
benefits dependent on residency in the preference area. For them,
however, the right to acquire a home in the area is abridged and
diluted."
"When an organization links membership benefits to residency in
a narrow geographical area, that decision infuses those benefits
into the bundle of rights for which an individual pays when buying
or leasing within the area. The mandate of 42 U.S.C. § 1982 then
operates to guarantee a nonwhite resident, who purchases, leases,
or holds this property, the same rights as are enjoyed by a white
resident."
Id. at
410 U. S.
437.
[
Footnote 35]
The lower federal courts have also required plaintiffs alleging
a violation of § 1982 to demonstrate some impairment of property
interests. In
Wright v. Salisbury Club, Ltd., 632 F.2d 309
(CA4 1980), the court held that the right to join a country club
was a property interest attaching to a home in a subdivision when
all residents of the subdivision were encouraged to join the club
and residency, as a practical matter, assured approval of an
application.
See, e.g., Moore v. Townsend, 525 F.2d 482
(CA7 1975) (discriminatory refusal to sell home);
Clark v.
Universal Builders, Inc., 501 F.2d 324 (CA7) (allegation that
blacks forced to accept prices and terms in excess of terms
available to whites purchasing comparable housing stated claim
under § 1982),
cert. denied, 419 U.S. 1070 (1974);
Gore v. Turner, 563 F.2d 159 (CA5 1977) (discriminatory
refusal to lease apartment);
Scott v. Eversole Mortuary,
522 F.2d 1110 (CA9 1975) (alleged discrimination in sale of burial
plots);
Concerned Tenants Assn. v. Indian Trails
Apartments, 496 F.
Supp. 522 (ND Ill.1980) (§ 1982 applies to abandonment of
services previously provided to white tenants of apartment complex
and now denied to black tenants);
Newbern v. Lake Lorelei,
Inc., 308 F.
Supp. 407 (SD Ohio 1968) (discrimination in modes of
negotiation for sale of property);
Sims v. Order of Commercial
Travelers of America, 343 F.
Supp. 112 (Mass.1972) (insurance contracts constitute property
for purposes of § 1982);
Gonzalez v. Southern Methodist
University, 536 F.2d 1071 (CA5 1976) (no property interest in
law school admission),
cert. denied, 430 U.S. 987
(1977).
[
Footnote 36]
The absence of such restriction distinguishes this case from the
Fifth Circuit's decision in
Jennings v. Patterson, 488
F.2d 436 (1974). In
Jennings, the defendants placed a
barricade across a street on the outskirts of Dadeville, Ala., and
prohibited landowners on the other side of the barricade from using
the street. All but one of the landowners so restricted were black,
and the one white landowner was given private access to the closed
street. The street closing had the effect of adding 1 1/2 to 2
miles to the trip into town. The court held that the plaintiffs,
"because they are black, have been denied the right to hold and
enjoy their property on the same basis as white citizens."
Id. at 442. Thus,
Jennings, unlike this case,
involved a severe restriction on the access to property.
See
supra at
451 U. S.
110-112, and nn. 15-18.
[
Footnote 37]
In
Palmer, the Court rejected petitioners' claim that a
city's decision to close public swimming pools, rather than
desegregate them, violated the Thirteenth Amendment. The Court
noted that § 2 of the Amendment gave Congress the power to
eradicate "badges of slavery," and that Congress had not prohibited
the challenged conduct. 403 U.S. at
403 U. S.
227.
[
Footnote 38]
In addition to § 1982, which we have identified as providing
broad protection to property rights, Congress has enacted, pursuant
to § 2 of the Thirteenth Amendment, Rev.Stat. § 1977, 42 U.S.C. §
1981, which protects the right of all citizens to enter into and
enforce contracts,
see Runyon v. McCrary, 427 U.
S. 160,
427 U. S. 170;
cf. Jones v. Alfred H. Mayer Co., 392 U.
S. 409,
392 U. S.
440-441; Rev.Stat. § 1980, 42 U.S.C. § 1985(3) (1976
ed., Supp. III), which protects blacks from conspiracies to deprive
them of "the equal protection of the laws, or of equal privileges
and immunities under the laws,"
see Griffin v.
Breckenridge, 403 U. S. 88,
403 U. S.
104-105; Rev.Stat. § 1990, 42 U.S.C. § 1994, which
prohibits peonage,
see Pollock v. Williams, 322 U. S.
4,
322 U. S. 8; and
18 U.S.C. § 1581, which provides for criminal punishment of those
who impose conditions of peonage on any person,
see Clyatt v.
United States, 197 U. S. 207,
197 U. S.
218.
[
Footnote 39]
The Court continued:
"For that clause clothed Congress with power to pass '
all
laws necessary and proper for abolishing all badges and incidents
of slavery in the United States.'"
Ibid. (Emphasis added.)
"
* * * *"
"Surely Congress has the power under the Thirteenth Amendment
rationally to determine what are the badges and the incidents of
slavery, and the authority to translate that determination into
effective legislation."
392 U.S. at
392 U. S.
439-440.
[
Footnote 40]
In
Jones, the Court did hold, of course, that § 2 of
the Amendment, which, in terms, merely authorized the enactment of
legislation to enforce § 1, did more than authorize legislation to
enforce the ban against slavery.
See nn.
32 38 supra. Although the Court expressly overruled
Hodges v. United States, 203 U. S. 1,
see 392 U.S. at
392 U. S.
441-443, n. 78, the Court neither agreed nor disagreed
with the first Justice Harlan's statement in dissent in Hodges
that, "by its own force, that Amendment destroyed slavery and all
its incidents and badges, and established freedom."
See
203 U.S. at
203 U. S. 27.
[
Footnote 41]
See supra at
451 U. S.
106-108, and nn. 22-27.
[
Footnote 42]
See nn.
22-25 and
accompanying text supra.
[
Footnote 43]
As the Court in
Village of Belle Terre noted:
"The police power is not confined to elimination of filth,
stench, and unhealthy places. It is ample to lay out zones where
family values, youth values, and the blessings of quiet seclusion
and clean air make the area a sanctuary for people."
416 U.S. at
416 U. S. 9.
JUSTICE WHITE, concurring in the judgment.
In this civil rights action, respondents sought relief under the
Thirteenth and Fourteenth Amendments as well as under 42 U.S.C. §§
1982, 1983. The District Court held that, while the closure of West
Drive in Memphis, Tenn., would have a disproportionate impact upon
certain black residents of Memphis, the evidence did not support a
finding of a purpose or intent to discriminate. Neither was the
disparate impact "so stark that a purpose or intent of racial
discrimination" could be inferred. As a consequence, and following
instructions from the initial remand, the District Court concluded
that respondents had failed to prove a violation of either § 1982
or § 1983. [
Footnote 2/1] The
District Court did not specifically address the alleged
constitutional violations, but implicitly those allegations fell on
the same basis. The Court of Appeals for the Sixth Circuit reversed
the District Court's ultimate conclusion that there was no
violation of § 1982, but the appellate court did not disturb the
trial court's finding that there was no purposeful discrimination.
Without
Page 451 U. S. 130
explicitly saying so, the Court of Appeals necessarily held that
a violation of § 1982 could be established without proof of
discriminatory intent. [
Footnote
2/2] The petition for a writ of certiorari sought review of
that precise point.
We granted review to answer the question presented in the
petition for a writ of certiorari. The parties in their briefs
proceeded on the same assumption. However, instead of addressing
the question which was explicitly presented by the findings and
holdings below, raised by the petitioners, granted review by this
Court and briefed by the parties, the Court inexplicably assumes
the role of factfinder, peruses the cold record, rehashes the
evidence, and,
sua sponte, purports to resolve questions
that the parties have neither briefed nor argued. It is not
surprising that the dissent has taken this same record and
interpreted it in quite another way. In any event, rather than
becoming involved in the imbroglio between the majority and the
dissent, I much prefer, as a matter of policy and common sense, to
answer the question for which we took the case. There is no good
reason here to disregard our own Rule 21.1(a), which states that
"[o]nly the questions set forth in the petition or fairly included
therein will be considered by the Court."
We are called upon to determine whether a nonintentional adverse
impact upon black citizens is a sufficient basis for relief under
42 U.S.C. § 1982. That statute declares that
"[a]ll citizens of the United States shall have the same right,
in every State and Territory, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real
and personal property."
Under that language, a person's
Page 451 U. S. 131
race is irrelevant to the existence of the declared rights. No
person is to be denied the enumerated rights merely because that
person is not white. Purposeful racial discrimination is quite
clearly the focus of the proscription, and this understanding of §
1982 is supported by the legislative history of the Civil Rights
Act of 1866, the enactment from which § 1982 was derived.
The Civil Rights Act of 1866 was enacted pursuant to § 2 of the
Thirteenth Amendment. That Amendment had been adopted by the States
in 1865, after the close of the Civil War. It announced the legal
demise of slavery. [
Footnote 2/3]
Section 2 of the Amendment provides: "Congress shall have power to
enforce this article by appropriate legislation." Although slavery
was legally abolished, the Amendment foresaw that specific
implementation of its command would be required to eradicate
completely the deep-seated institution of slavery. The Civil Rights
Act of 1866 was explicitly designed as such a practical
measure.
When the 39th Congress undertook consideration of the proposed
Civil Rights Act of 1866, there was a growing perception that the
plight of the southern blacks had not been resolved by the adoption
of the Thirteenth Amendment. [
Footnote
2/4] In
Page 451 U. S. 132
the words of one contemporary observer:
"The general government of the republic has, by proclaiming the
emancipation of the slaves, commenced a great social revolution in
the south, but has, as yet, not completed it. Only the negative
part of it is accomplished. The slaves are emancipated in point of
form, but free labor has not yet been put in the place of slavery
in point of fact."
S.Exec.Doc. No. 2, 39th Cong., 1st Sess., 38 (1865). Individual
Southern States had begun enacting the so-called Black Codes,
[
Footnote 2/5] which, although not
technically resurrecting the institution of slavery, were viewed by
the Republican Congress as a large step in that direction.
See
generally H. Flack, Adoption of the Fourteenth Amendment 11-54
(1908). In addition, there was evidence that former slaves were
being subjected to serious abuses at the hands of the white
majority.
See Joint Committee on Reconstruction, H.R.Rep.
No. 30, 39th Cong., 1st Sess., xvii and
passim (1866). The
proposed Civil Rights Act was specifically designed to stem this
tide of oppression.
See Jones
Page 451 U. S. 133
v. Alfred H. Mayer. Co., 392 U.
S. 409,
392 U. S.
426-429, and nn. 34-45 (1968). Senator Trumbull, sponsor
of the bill, made this precise purpose of the Act abundantly
clear:
"Since the abolition of slavery, the Legislatures which have
assembled in the insurrectionary States have passed laws relating
to the freedmen, and, in nearly all the States, they have
discriminated against them. They deny them certain rights, subject
them to severe penalties, and still impose upon them the very
restrictions which were imposed upon them in consequence of the
existence of slavery, and before it was abolished. The purpose of
the bill under consideration is to destroy all these
discriminations, and to carry into effect the constitutional
amendment."
Cong.Globe, 39th Cong., 1st Sess., 474 (1866).
The theme sounded by Senator Trumbull was repeated on numerous
occasions during the lengthy floor debates which took place in both
Houses of Congress. The supporters of the bill emphasized time and
again that the measure was designed to eradicate blatant
deprivations of civil rights.
See, e.g., id. at 322,
339-340, 474-475, 516-517, 1123, 1151-1152, 1159-1160, 1833-1835.
The purpose of the Act was to insure that the abolition of slavery
was accomplished in fact, as well as theory:
"[The Thirteenth Amendment] declared that all persons in the
United States should be free. This measure is intended to give
effect to that declaration, and secure to all persons within the
United States practical freedom. There is very little importance in
the general declaration of abstract truths and principles unless
they can be carried into effect, unless the persons who are to be
affected by them have some means of availing themselves of their
benefits. . . . And of what avail will it now be that the
Constitution of the United States has declared that slavery shall
not exist if, in the late slaveholding States, laws
Page 451 U. S. 134
are to be enacted and enforced depriving persons of African
descent of privileges which are essential to freemen?"
"It is the intention of this bill to secure those rights."
Id. at 474 (remarks of Sen. Trumbull).
The Civil Rights Act of 166 thus was a response to the
perception held by Congress that former slaves were being denied
basic civil rights. The Act would give practical effect to the
Thirteenth Amendment.
"The bill under consideration is intended only to carry into
practical effect the amendment of the Constitution. Its object is
to declare not only that slavery shall be abolished upon the pages
of your Constitution, but that it shall be abolished in fact and in
deed. . . ."
Id. at 1152 (remarks of Mr. Thayer). But nothing in the
legislative history of this Act suggests that Congress was
concerned with facially neutral measures which happened to have an
incidental impact on former slaves. [
Footnote 2/6]
Page 451 U. S. 135
On the contrary, the theme of the debates surrounding this
statute is that the former slaves continued to be subject to
direct, intentional abuses at the hands of their former masters.
That was the problem Congress intended to address, and that focus
should determine the reach and scope of this statute. We have no
basis for concluding anything other than that a violation of § 1982
requires some showing of racial animus or an intent to discriminate
on the basis of race. The Court of Appeals proceeded on a contrary
basis, and reversed the District Court's judgment without
disturbing the District Court's conclusion that no discriminatory
purpose had been found. This was error, and, for that reason, I
concur in the judgment of reversal, but would remand for further
proceedings consistent with this opinion.
[
Footnote 2/1]
The initial opinion of the Court of Appeals instructed the
District Court as follows:
"To establish a section 1982 or 1983 claim on remand, Greene
must prove his allegations that city officials conferred the closed
street on West Drive residents because of their color; he must
prove racial motivation, intent or purpose, in the absence of such
egregious differential treatment as to in itself violate equal
protection or, alternatively, to command an inference of racial
motivation."
535 F.2d 976, 979. In the opinion rendered by the Court of
Appeals following the initial remand, the above language was
described as dicta.
[
Footnote 2/2]
Respondents' § 1983 claim based on the Fourteenth Amendment
necessarily fell on the District Court's conclusion that
respondents had failed to meet their burden of establishing
discriminatory intent.
See Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U. S. 252
(1977);
Washington v. Davis, 426 U.
S. 229 (1976). The Court of Appeals did not hold
otherwise. Nor is the reach of the Thirteenth Amendment properly
before us. The Court of Appeals' judgment was based on § 1982.
[
Footnote 2/3]
Section I of the Thirteenth Amendment provides:
"Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."
[
Footnote 2/4]
The fear that the former slaves were doomed to second-class
citizenship was supported by the report submitted by Major General
Carl Schurz to President Andrew Johnson. S.Exec.Doc. No. 2, 39th
Cong., 1st Sess. (1865). President Johnson had assigned Schurz the
task of traveling through a number of Southern States for the
purpose of gathering information and making observations as to the
postwar conditions to be found in that region. The report is a
detailed and lucid account of these journeys. In it, Schurz
describes the precarious social position of the freedmen as well as
the numerous abuses to which those individuals were being
subjected. The report expressed the general view that the South was
having difficulty adjusting to the abolition of slavery, and that,
in the absence of federal intervention, a substitute for slavery
was not unlikely. Schurz' report concludes with the admonition:
"As to the future peace and harmony of the Union, it is of the
highest importance that the people lately in rebellion be not
permitted to build up another 'peculiar institution' whose spirit
is in conflict with the fundamental principles of our political
system; for as long as they cherish interests peculiar to them in
preference to those they have in common with the rest of the
American people, their loyalty to the Union will always be
uncertain."
Id. at 46. The themes sounded in this report were
repeated in the debates over the Civil Rights Act.
[
Footnote 2/5]
Apropos of the effect of these Black Codes, Major General Schurz
commented:
"But while accepting the 'abolition of slavery,' they think that
some species of serfdom, peonage, or some other form of compulsory
labor is not slavery, and may be introduced without a violation of
their pledge. . . . What particular shape the reactionary movement
will assume it is at present unnecessary to inquire. There are a
hundred ways of framing apprenticeship, vagrancy, or contract laws
which will serve the purpose."
Id. at 35. The Codes are collated and described in E.
McPherson, The Political History of the United States of America
During the Period of Reconstruction 29-44 (1871).
[
Footnote 2/6]
Respondents suggest that certain of the discriminations with
which Congress was concerned arose out of facially neutral vagrancy
laws, applicable equally to blacks and whites. From this we are to
infer the creation of a disparate impact standard. But this
argument overlooks the congressional view that these ostensibly
neutral statutes were intentionally being used to oppress
blacks.
"Vagrant laws have been passed; laws which, under the pretense
of selling these men as vagrants, are calculated and intended to
reduce them to slavery again; and laws which provide for selling
these men into slavery in punishment of crimes of the slightest
magnitude. . . ."
Cong.Globe, 39th Cong., 1st Sess., 1123 (1866) (remarks of Mr.
Cook);
see also id. at 1151 (remarks of Mr. Thayer), 1160
(remarks of Mr. Windom). For example, General Terry ordered
nonenforcement of the Virginia Vagrant Act, since he had concluded
that white farmers had entered into combinations fixing the wages
to be paid former slaves at an unreasonably low level, forcing the
freedmen to either accept the unfair wage or risk criminal
conviction under the Vagrant Act. General Terry observed:
"'The effect of the statute in question will be, therefore, to
compel the freedmen, under penalty of punishment as criminals, to
accept and labor for the wages established by these combinations of
employers. It places them wholly in the power of their employers,
and it is easy to foresee that, even where no such combination now
exists, the temptation to form them offered by the statute will be
too strong to be resisted, and that such inadequate wages will
become the common and usual wages throughout the State. The
ultimate effect of the statute will be to reduce the freedmen to a
condition of servitude worse than that from which they have been
emancipated -- a condition which will be slavery in all but its
name.'"
McPherson,
supra n. 5, at 41-42. The objection to the
vagrancy laws was not to their disproportionate impact, but to the
intentional use of those statutes to impose upon freedmen a system
tantamount to slave labor.
See also Kohl, The Civil Rights
Act of 1866, Its Hour Come Round at Last:
Jones v. Alfred H.
Mayer Co., 55 Va.L.Rev. 272, 276-283 (1969). Some of these
vagrancy laws were not race-neutral. The Vagrant Act of Mississippi
was directed only at unemployed freedmen.
See McPherson,
supra 451
U.S. 100fn2/5|>n. 5, at 30.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN
join, dissenting.
This case is easier than the majority makes it appear.
Petitioner city of Memphis, acting at the behest of white property
owners, has closed the main thoroughfare between an all-white
enclave and a predominantly Negro area of the city. The stated
explanation for the closing is of a sort all
Page 451 U. S. 136
too familiar: "protecting the safety and tranquility of a
residential neighborhood" by preventing "undesirable traffic" from
entering it. Too often in our Nation's history, statements such as
these have been little more than code phrases for racial
discrimination. These words may still signify racial
discrimination, but apparently not, after today's decision,
forbidden discrimination. The majority, purporting to rely on the
evidence developed at trial, concludes that the city's stated
interests are sufficient to justify erection of the barrier.
Because I do not believe that either the Constitution or federal
law permits a city to carve out racial enclaves, I dissent.
I
In order to determine "whether the State
in any of its
manifestations' has become significantly involved in private
discriminations," it is necessary to "`sif[t] facts and weig[h]
circumstances'" so that "`nonobvious involvement of the State in
private conduct [can] be attributed its true significance.'"
Reitman v. Mulkey, 387 U. S. 369,
387 U. S. 378
(1967), quoting Burton v. Wilmington Parking Authority,
365 U. S. 715,
365 U. S. 722
(1961). The key to the majority's conclusion is the view that it
takes of the facts, and consequently I will review the relevant
parts of the record in some detail.
The majority treats this case as involving nothing more than a
dispute over a city's race-neutral decision to place a barrier
across a road. My own examination of the record suggests, however,
that far more is at stake here than a simple street closing. The
picture that emerges from a more careful review of the record is
one of a white community, disgruntled over sharing its street with
Negroes taking legal measures to keep out the "undesirable
traffic," and of a city, heedless of the harm to its Negro
citizens, acquiescing in the plan.
I readily accept much of the majority's summary of the
circumstances that led to this litigation. I would, however,
Page 451 U. S. 137
begin by emphasizing three critical facts. First, as the
District Court found, Hein Park
"was developed well before World War II as an exclusive
residential neighborhood for white citizens, and these
characteristics have been maintained."
App. 148. Second, the area to the north of Hein Park, like the
"undesirable traffic" that Hein Park wants to keep out, is
predominantly Negro. And third, the closing of West Drive stems
entirely from the efforts of residents of Hein Park. Up to this
point, the majority and I are in agreement. But we part company
over our characterizations of the evidence developed in the course
of the trial of this case. At the close of the evidence, the trial
court described this as
"a situation where an all-white neighborhood is seeking to stop
the traffic from an overwhelmingly black neighborhood from coming
through their street."
Tr. 323. In the legal and factual context before us, I find that
a revealing summary of the case. The majority apparently does
not.
According to the majority, the Court of Appeals concluded that
respondents were entitled to relief based on four facts that the
panel gleaned from the District Court's findings. These facts
were:
"(1) that the closing would benefit a white neighborhood and
adversely affect [Negroes]; (2) that a "barrier was to be erected
precisely at the point of separation of these neighborhoods and
would undoubtedly have the effect of limiting contact between
them;" (3) that the closing was not part of a city-wide plan, but
rather was a "unique step to protect one neighborhood from outside
influences which the residents considered to be
undesirable;'"
and (4) that there was evidence of "an economic depreciation in the
property values in the predominantly black residential
area.""
Ante at
451 U. S. 109
(footnote omitted). By purportedly examining the evidence
supporting each of the four points, the majority is able to
conclude that the court below was mistaken, and that the only
effect of the closing
Page 451 U. S. 138
of West Drive is "some slight inconvenience to black motorists."
Ante at
451 U. S. 119.
A more detailed study of the record convinces me, to the contrary,
that the Court of Appeals was entirely justified in each of its
conclusions.
The majority does not seriously dispute the first of the four
facts relied on by the Court of Appeals. In fact, it concedes that
the trial court "clearly concluded . . . that the adverse impact on
blacks was greater than on whites."
Ante at
451 U. S. 110,
n. 15. The majority suggests, however, that this "impact" is
limited to the "inconvenience" that will be suffered by drivers who
live in the predominantly Negro area north of Hein Park and who
will no longer be able to drive through the subdivision. This, says
the majority, is because residents of the area north of Hein Park
will still be able to get where they are going; they will just have
to go a little out of their way, and thus will take a little longer
to complete the trip.
This analysis ignores the plain and powerful symbolic message of
the "inconvenience." Many places to which residents of the area
north of Hein Park would logically drive lie to the south of the
subdivision. [
Footnote 3/1] Until
the closing of West Drive, the most direct route for those who
lived on or near Springdale St. was straight down West Drive. Now
the Negro drivers are being told in essence: "You must take the
long way around because you don't live in this
protected' white
neighborhood." Negro residents of the area north of Hein Park
testified at trial that this is what they thought the city was
telling them by closing West Drive. See, e.g., Tr. 22-23,
34 (testimony of N. T. Greene); id. at 64 (testimony of
Eleanore Cross). See also id. at 111 (testimony
of
Page 451 U. S. 139
Dr. Marvin Feit). Even the District Court, which granted
judgment for petitioners, conceded that "[o]bviously, the black
people north of [Hein Park] . . . are being told to stay out of the
subdivision."
Id. at 317. In my judgment, this message
constitutes a far greater adverse impact on respondents than the
majority would prefer to believe. [
Footnote 3/2]
The majority also does not challenge the Sixth Circuit's second
finding, that the barrier is being erected at the point of contact
of the two communities. Nor could it do so, because the fact is not
really in dispute. The Court attempts instead to downplay the
significance of this barrier by calling it "a curb that will not
impede the passage of municipal vehicles."
Ante at
451 U. S. 112.
But that is beside the point. Respondents did not bring this suit
to challenge the exclusion of municipal vehicles from Hein Park.
Their goal is to preserve access for their own vehicles. But in
fact, they may not even be able to preserve access for their own
persons. The city is creating the barrier across West Drive by
deeding public property to private landowners. Nothing will prevent
the residents of Hein Park from excluding "undesirable" pedestrian
as well as vehicular traffic if they so choose.
See Tr.
136, 217-219, 317-318. What is clear is that there will be a
barrier to traffic that is to be erected precisely at the point
where West Drive (and thus, all-white Hein Park) ends and
Springdale St. (and the mostly Negro section) begins.
The psychological effect of this barrier is likely to be
significant. In his unchallenged expert testimony in the trial
court, Dr. Marvin Feit, a professor of psychiatry at the University
of Tennessee, predicted that the barrier between West Drive and
Springdale St. will reinforce feelings about the city's
"favoritism" toward whites and will "serve as a monument to racial
hostility."
Id. at 103, 104-105. The testimony
Page 451 U. S. 140
of Negro residents and of a real estate agent familiar with the
area provides powerful support for this prediction. [
Footnote 3/3] As the District Court put
it:
"[Y]ou are not going to be able to convince those black people
out there that they didn't do it because they were black. They are
helping a white neighborhood. Now that is a problem that somebody
is going to have to live with. . . ."
Id. at 325. I cannot subscribe to the majority's
apparent view that the city's erection of this "monument to racial
hostility" amounts to nothing more than a "slight inconvenience."
Thus, unlike the majority, I do not minimize the significance of
the barrier itself in determining the harm respondents will suffer
from its erection. [
Footnote
3/4]
The majority does not attempt to question the third conclusion
by the Court of Appeals, that the closing of West Drive is intended
as a protection of Hein Park against "undesirable" outside
influences. Rather, its disagreement with
Page 451 U. S. 141
the Court of Appeals is over the inference to be drawn. The
majority insists that, to the extent that the Court of Appeals
found racially discriminatory intent, that finding is not supported
by the record. The majority also asserts,
ante at
451 U. S. 114,
that there is "no evidence" that either the residents of Hein Park
or the city officials were motivated by any racial considerations.
A proper reading of the record demonstrates, to the contrary, that
respondents produced at trial precisely the kind of evidence of
intent that we deemed probative in
Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.
S. 252,
429 U. S.
267-268 (1977). [
Footnote
3/5]
The term "undesirable traffic" first entered this litigation
through the trial testimony of Sarah Terry. Terry, a West
Page 451 U. S. 142
Drive resident who opposed the closing testified that she was
urged to support the barrier by an individual who explained to her
that "the traffic on the street was undesirable traffic." Tr. 140.
[
Footnote 3/6] The majority
apparently reads the term "undesirable" as referring to the
prospect of having any traffic at all on West Drive. But the common
sense understanding of Terry's testimony must be that the word
"undesirable" was meant to describe the traffic that was actually
using the street, as opposed to any traffic that might use it. Of
course, the traffic that was both actually using the street and
would be affected by the barrier was predominantly Negro. [
Footnote 3/7]
But Terry's testimony is not, as the majority implies, the only
Arlington Heights-type evidence produced at trial. The testimony of
city planning officials, for example, strongly suggests that the
city deviated from its usual procedures in deciding to close West
Drive. In particular, despite an unambiguous requirement that
applications for street closings be signed by "all" owners of
property abutting on the thoroughfare to be closed, the city here
permitted this application to go through without the signature or
the consent of
Page 451 U. S. 143
Sarah Terry. [
Footnote 3/8]
Perhaps more important, the city gave no notice to the Negro
property owners living north of Hein Park that the Planning
omission was considering an application to close West Drive. The
Planning Commission held its hearing without participation by any
of the affected Negro residents, and it declined to let them
examine the file on the West Drive closing. It gave no notice that
the City Council would be considering the issue. When respondents
found out about it, they sought to state their case. But the
Council gave opponents of the proposal only 15 minutes, even though
some members objected that that was not enough time. Furthermore,
although the majority treats West Drive as just another closing, it
is, according to the city official in charge of closings, the
only time the city has
ever closed a street for
traffic control purposes. Tr. 297-298 (testimony of Paul
Goldstein).
See id. at 313, 321-322 (comments of trial
judge). And it cannot be disputed that all parties were aware of
the disparate racial impact of the erection of the barrier.
[
Footnote 3/9] The city of Memphis,
moreover, has an
Page 451 U. S. 144
unfortunate but very real history of racial segregation -- a
history that has, in the past, led to intercession by this Court.
[
Footnote 3/10] All these factors
represent precisely the kind of evidence that we said in
Arlington Heights was relevant to an inquiry into
motivation. Regardless of whether this evidence is viewed as
conclusive, it can hardly be stated with accuracy that "no
evidence" exists. [
Footnote
3/11]
Page 451 U. S. 145
Most important, I believe that the findings of the District
Court and the record in this case fully support the Court of
Appeals' conclusion that Negro property owners are likely to suffer
economic harm as a result of the construction of the barrier. In
attempting to demonstrate to the trial court that the closing of
West Drive would adversely affect their property, respondents first
introduced the testimony of H. C. Moore, a real estate agent with
17 years' experience in the field. Moore began by predicting that,
after West Drive was closed, Hein Park would become "more or less a
Utopia within the city of Memphis," families who had left the inner
city for the suburbs would probably return in order to live there,
and the property values in Hein Park "would be enhanced greatly."
Tr. 91-92. Moore was then asked what effect the closing would have
on the property values in the Springdale area. He responded:
"From an economic standpoint, there would not be a lessening of
value in those properties in the Springdale area, but, from a
psychological standpoint, it would have a tendency to have a
demoralizing --"
Id. at 92. At this point, counsel for petitioners
interposed an objection, but Moore was eventually permitted to
answer the question, and he testified as follows:
"In my opinion, with the 17 years' experience in the real estate
industry, psychologically, it would have a deterring, depressing
effect on those individuals who might live north of the Hein Park
area. With the closure of the street, the creation of another
little haven, the fact that these people are in a lower economic
social group and wouldn't be able to actually afford housing with
the illustrious price tags of those houses in the Hein Park
Page 451 U. S. 146
area, it would be, in my opinion, like the individual looking in
the pastry store who doesn't have a dime and who can't afford it.
And consequently, as a result of such, their moralistic values on
their properties could tend to be such that the upkeep would not be
nearly so great and it could have a detrimental effect on the
property values in the future."
Id. at 95. Surely Moore's uncontroverted expert
testimony is evidence of an impairment of property values, an
impairment directly traceable to the closing of West Drive. The
majority dismisses this aspect of Moore's testimony as
"speculation."
Ante at
451 U. S.
117-118. Yet the majority has no trouble crediting
Moore's brief and conclusory testimony that the immediate impact of
the closing would be negligible. Unlike the majority, I am unable
to dismiss so blithely the balance of his comments.
The majority also gives insufficient weight to the testimony of
Dr Feit on this point. Dr. Feit testified, based on his experience
as Director of Planning for Allegheny County, Pa., that the shift
in traffic patterns as a result of the closing of West Drive would
lower the property values for owners living north of Hein Park. He
further testified that the closing of West Drive would lead to
increased hostility toward Hein Park residents and, ultimately, to
increased police harassment of residents of the Springdale area.
Tr. 102-104, 118-120. [
Footnote
3/12] I would have thought it indisputable that increased
police harassment of property owners must be construed as a
significant impairment of their property interests. In my view, the
combined testimony of Dr. Feit and real estate expert
Page 451 U. S. 147
Moore is sufficient to demonstrate that the closing of West
Drive will cause genuine harm to the property rights of the Negro
residents of the area north of Hein Park.
In sum, I cannot agree with the majority's' suggestion that
"[t]he injury to respondents established by the record is the
requirement that one public street, rather than another, must be
used for certain trips within the city,"
ante at
451 U. S. 124,
and that this requirement amounts to no more than "some slight
inconvenience,"
ante at
451 U. S. 119.
Indeed, as should be clear from the foregoing, the problem is less
the closing of West Drive in particular than the establishment of
racially determined districts which the closing effects. I can only
agree with the Court of Appeals, which viewed the city's action as
nothing more than "one more of the many humiliations which society
has historically visited" on Negro citizens. 610 F.2d at 404. In my
judgment, respondents provided ample evidence that erection of the
challenged barrier will harm them in several significant ways.
Respondents are being sent a clear, though sophisticated, message
that, because of their race, they are to stay out of the all-white
enclave of Hein Park and should instead take the long way around in
reaching their destinations to the south. Combined with this
message are the prospects of increased police harassment and of a
decline in their property values. It is on the basis of these
facts, all firmly established by the record, that I evaluate the
legal questions presented by this case.
II
When Congress enacted § 1 of the Civil Rights Act of 1866; 14
Stat. 27, now 42 U.S.C. § 1982, it intended "to prohibit all racial
discrimination, whether or not under color of law, with respect to
the rights enumerated therein. . . ."
Jones v. Alfred H. Mayer
Co., 392 U. S. 409,
392 U. S. 436
(1968).
See Tillman v. Wheaton-Haven Recreation Assn.,
Inc., 410 U. S. 431,
410 U. S. 435
(1973);
Sullivan v. Little Hunting Park, Inc.,
396 U. S. 229,
396 U. S. 235
(1969). These enumerated rights include the rights
Page 451 U. S. 148
"to inherit, purchase, lease, sell, hold, and convey real and
personal property." 42 U.S.C. § 1982. At bottom, as the majority
recognizes, § 1982 creates a right in Negroes "not to have property
interests impaired because of their race."
Ante at
451 U. S. 122.
[
Footnote 3/13] Our decisions
have recognized that the language of the statute is to be broadly
construed. We have said that "
[w]e are not at liberty to seek
ingenious analytical instruments,'" to carve exceptions from §
1982. Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 437,
quoting United States v. Price, 383 U.
S. 787, 383 U. S. 801
(1966). On the contrary,
"[a] narrow construction of the language of 1982 would be quite
inconsistent with the broad and sweeping nature of the protection
meant to be afforded by § 1 of the Civil Rights Act of 1866. . .
."
Sullivan v. Little Hunting Park, Inc., supra, at
396 U. S. 237.
If the language of the statute is given the broad reading that our
cases require, then it is difficult to see how petitioners can
avoid its effect.
The majority concludes that the kind of harm that § 1982 was
meant to prohibit does not exist in this case, but, as I have
stated, a proper reading of the record demonstrates substantial
harm to respondents' property rights as a result of the
establishment of a barrier at the northern edge of Hein Park. The
closing will both burden respondents' ability to enjoy their
property and also depress its value, thus falling within the
literal language of § 1982. [
Footnote
3/14] Even the majority
Page 451 U. S. 149
concedes that "the statute might be violated by official action
that depreciated the value of property owned by [Negro] citizens."
Ante at
451 U. S. 123.
I believe that that is precisely what is challenged in this case.
[
Footnote 3/15]
The legislative history of § 1982 also supports my conclusion
that the carving out of racial enclaves within a city is
Page 451 U. S. 150
precisely the kind of injury that the statute was enacted to
prevent. In
Jones v. Alfred H. Mayer Co., supra, at
392 U. S.
422-437, this Court discussed the legislative history of
the Civil Rights Act of 1866 in some detail, and there is no need
to duplicate all of that discussion here. A few examples should
suffice.
When the Civil Rights Act of 1866 was introduced, both its
supporters and its opponents alike recognized the revolutionary
scope of its intended purpose of eliminating discrimination. As we
noted in
Jones v. Alfred H. Mayer Co., supra:
"That the bill would indeed have so sweeping an effect was seen
as its great virtue by its friends, and its great danger by its
enemies, but was disputed by none. Opponents of the bill charged
that it would not only regulate state laws, but would directly
'determine the persons who [would] enjoy . . . property within the
States,'
threatening the ability of white citizens 'to
determine who [would] be members of [their] communit[ies]. . .
.'"
392 U.S. at
392 U. S. 433
(footnotes omitted; emphasis added). Senator Van Winkle, the Member
of Congress quoted by the Court in that passage from
Jones, spoke at some length about the "dangers" inherent
in the bill that would eventually become § 1982:
"I believe that the division of men into separate communities
and their living in society and association with their fellows . .
. are both divine institutions. . . . We have the right to
determine who shall be members of our community, and . . . I do not
see where it comes in that we are bound to receive into our
community those whose mingling with us might be detrimental to our
interests. I do not believe that a superior race is bound to
receive among it those of an inferior race. . . ."
Cong.Globe, 39th Cong., 1st Sess., 498 (1866).
Page 451 U. S. 151
The Senate, of course, passed the bill in spite of Senator Van
Winkle's fears, thus repudiating his view that white residents
should enjoy the absolute right to close their communities to
Negroes. In enacting § 1982, Congress was "fully aware of the
breadth of the measure it had approved."
Jones v. Alfred H.
Mayer Co., 392 U.S. at
392 U. S. 433.
Senator Lane, a supporter of the bill, answered the arguments of
Senator Van Winkle and others by explaining that the bill would
prevent a white person from "invok[ing] the power of local
prejudice" against a Negro. Cong.Globe, 39th Cong., 1st Sess., at
603. Senator Trumbull, a sponsor of the legislation, made plain
that it was intended to prohibit local discriminatory customs, as
well as discriminatory state laws.
Id. at 1759. During the
House debate over the Civil Rights Act, Representative Cook argued
that, without the legislation, slavery might be perpetuated "under
other names and in other forms," because "[a]ny combination of men
in [a Negro's] neighborhood" might join to oppress him.
Id. at 1124. As we recognized in
Jones v. Alfred H.
Mayer Co., supra, at
392 U. S.
427-428, one goal of the Reconstruction Congress in
enacting the statute was to provide protection for Negroes when
"white citizens . . . combined to drive them out of their
communities."
See Cong.Globe, 39th Cong., 1st Sess., at
1156, 1835; J. tenBroek, Equal Under Law 181 (rev. ed.1966).
I do not, of course, mean to suggest that the Reconstruction
Congress that enacted § 1982 anticipated the precise situation
presented by this case. Nor do I wish to imply that the Act
prevents government from ever closing a street when the effect is
to inflict harm on Negro property owners. But because of our
Nation's sad legacy of discrimination and the broad remedial
purpose of § 1982, I believe that official actions whose effects
fall within its terms ought to be closely scrutinized. When, as
here, the decisionmaker takes action with full knowledge of its
enormously disproportionate
Page 451 U. S. 152
racial impact, [
Footnote 3/16]
I believe that § 1982 requires that the government carry a heavy
burden in order to justify its action. Absent such a justification,
the injured property owners are entitled to relief. There is no
need to suggest here just how great the government's burden should
be, because the reasons set forth by the city for the closing of
West Drive could not, on the facts of this case, survive any but
the most minimal scrutiny.
In sustaining the closing of West Drive, the majority points to
petitioners' "[p]roper management of the flow of vehicular traffic
within a city," and their exercise of the "unquestionably
legitimate" "residential interest in comparative tranquility,"
ante at
451 U. S. 126,
451 U. S. 127.
[
Footnote 3/17] Those interests
might, as the majority contends, well prove "sufficient to justify
an adverse impact on motorists who are somewhat inconvenienced by
the street closing,"
ante at
451 U. S. 128,
but that is not the impact that the city must explain in this case.
It must, instead, justify the substantial injury that it has
inflicted on Negro citizens solely for the benefit of the white
residents of Hein Park. For that purpose, the proffered
explanations are insufficient. "[A] city's possible motivations to
ensure safety and save money cannot validate an otherwise
impermissible state action."
Palmer v. Thompson,
403 U. S. 217,
403 U. S. 226
(1971).
See Watson v. Memphis, 373 U.
S. 526,
373 U. S. 537
(1963);
Cooper v. Aaron, 358 U. S. 1,
358 U. S. 16
(1958);
Buchanan v. Warley, 245 U. S.
60,
245 U. S. 74, 81
(1917). It is simply unrealistic to suggest, as does the Court,
that the harm suffered by respondents
Page 451 U. S. 153
has no more than "symbolic significance,"
ante at
451 U. S. 128,
and it defies the lessons of history and law to assert that, if the
harm is only symbolic, then the federal courts cannot recognize it.
Compare Plessy v. Ferguson, 163 U.
S. 537,
163 U. S. 551
(1896) ("We consider the underlying fallacy of the plaintiff's
argument to consist in the assumption that the enforced separation
of the two races stamps the colored race with a badge of
inferiority. If this be so, it is not by reason of anything found
in the act, but solely because the colored race chooses to put that
construction upon it")
with Brown v. Board of Education,
347 U. S. 483,
347 U. S. 494
(1954) ("To separate them from others . . . solely because of their
race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely
ever to be undone. . . . Whatever may have been the extent of
psychological knowledge at the time of
Plessy v. Ferguson,
this finding is amply supported by modern authority"). The message
the city is sending to Negro residents north of Hein Park is clear,
and I am at a loss to understand why the majority feels so free to
ignore it.
Indeed, until today I would have thought that a city's erection
of a barrier, at the behest of a historically all-white community,
to keep out predominantly Negro traffic would have been among the
least of the statute's prohibitions. Certainly I suspect that the
Congress that enacted § 1982 would be surprised to learn that it
has no application to such a case. Even the few portions of debate
that I have cited make clear that a major concern of the statute's
supporters was the elimination of the effects of local prejudice on
Negro residents. In my view, the evidence before us supports a
strong inference that the operation of such prejudice is precisely
what has led to the closing of West Drive. And against this record,
the government should be required to do far more than it has here
to justify an action that so obviously damages and stigmatizes a
racially identifiable group of its citizens.
Page 451 U. S. 154
In short, I conclude that the plain language of § 1982 and its
legislative history show that the harm established by a fair
reading of this record falls within the prohibition of the statute.
Because the Court of Appeals reached the same conclusion, I would
affirm its judgment. [
Footnote
3/18]
Page 451 U. S. 155
III
I end, then, where I began. Given the majority's decision to
characterize this case as a mere policy decision on the part of the
city of Memphis to close a street for valid municipal reasons, the
conclusion that it reaches follows inevitably. But the evidence in
this case, combined with a dab of common sense, paints a far
different picture from the one emerging from the majority's
opinion. In this picture, a group of white citizens has decided to
act to keep Negro citizens from traveling through their urban
"utopia," and the city has placed its seal of approval on the
scheme. It is this action that I believe is forbidden, and it is
for that reason that I dissent.
[
Footnote 3/1]
As the majority notes,
ante at
451 U. S. 103,
n. 2, Hein Park is bordered on the south by Overton Park, which
contains numerous municipally owned outdoor attractions. In fact,
the entire central city lies south of Hein Park. Negro residents
drive down West Drive for purposes as diverse as going to visit
friends, Tr. 36 (testimony of N. T. Greene), and just looking at
the scenery,
id. at 63 (testimony of Eleanore Cross).
[
Footnote 3/2]
As I discuss
infra at
451 U. S.
145-147, I also conclude that, as a result of the
closing, Negro property owners in the area north of Hein Park will
suffer substantial impairments in both the enjoyment and value of
their property.
[
Footnote 3/3]
One Negro resident, N. T. Greene, testified:
"[B]ecause we are Black, we cannot drive through a piece of
property that is owned collectively by us. This would cause
psychological damage to me personally."
Tr. 23. He added that he perceived the barrier as "simply an
extension of the insult and humiliation that we have tolerated and
experienced too long already."
Id. at 39. Another
resident, Eleanore Cross, was asked how she would feel if West
Drive were closed. She responded: "That would put a fear on me
that, if they said, "Closed," that means "Closed," and that would
mean put a fear on me."
Id. at 64. One of respondents'
expert witnesses, real estate agent H. C. Moore, testified that he
anticipated similar effects.
See infra at
451 U. S.
145-146.
[
Footnote 3/4]
The majority makes much of the fact that, even after the closing
of West Drive, three other streets are available for access into
Hein Park. Of these, however, only one, Charles Place, which is
west of West Drive and parallel to it, is arguably convenient. But
drivers coming down West Drive have to go out of their way to reach
Charles Place. There is, moreover, nothing to prevent the white
property owners along Charles Place from seeking to close it at the
northern end, for they could surely come up with reasons as vague
as those set forth for the closing of West Drive itself. In any
event, the fact remains that predominantly Negro traffic is being
disadvantaged for the exclusive benefit of a community that was
designed to be, and still remains, entirely white.
[
Footnote 3/5]
In
Arlington Heights we explained:
"Determining whether invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.
The impact of the official action -- whether it 'bears more heavily
on one race than another' . . . -- may provide an important
starting point. Sometimes a clear pattern, unexplainable on grounds
other than race, emerges from the effect of the state action even
when the governing legislation appears neutral on its face. . . .
But such cases are rare, [and ordinarily] impact alone is not
determinative, and the Court must look to other evidence."
"The historical background of the decision is one evidentiary
source, particularly if it reveals a series of official actions
taken for invidious purposes. The specific sequence of events
leading up to the challenged decision also may shed some light on
the decisionmaker's purposes. . . . Departures from the normal
procedural sequence also might afford evidence that improper
purposes are playing a role. Substantive departures too may be
relevant, particularly if the factors usually considered important
by the decisionmaker strongly favor a decision contrary to the one
reached."
"The legislative or administrative history may be highly
relevant, especially where there are contemporary statements by
members of the decisionmaking body, minutes of its meetings, or
reports. . . ."
"The foregoing summary identifies, without purporting to be
exhaustive, subjects of proper inquiry in determining whether
racially discriminatory intent existed."
429 U.S. at
429 U. S.
266-268 (citations and footnotes omitted).
[
Footnote 3/6]
Terry's testimony on this point is set forth in full in the
majority opinion,
ante at
451 U. S.
115-116, n. 26.
[
Footnote 3/7]
Emmanuel Goldberger, a white citizen who opposed the closing of
West Drive but who died before trial, explained in testimony before
the City Council some of the reasons that he considered the closing
racially motivated:
"Mr. Chairman, there's been enough said about the number of
cars, or the speed of the cars going on West Drive. You know and I
know that that isn't the issue. . . . "
"But if you want me to, I will spell it out for you. Mr.
Chairman, the answer is sitting right here. The well-to-do white
people living in Hein Park do not want black people or the few of
us who refuse to run away living north of Jackson to drive on . . .
what they think is their street. I phoned a man -- I phoned a man
with whom I have been friendly for more than 65 years. His wife
answered and would not let me speak to him. So as the rights and
wrongs were discussed, she said to me[,] 'Leo and I were surprised
to see you sitting with that group of niggers.' That[,] Mr.
Chairman[,] is the issue here."
Ex. 30, p. 1.
[
Footnote 3/8]
City officials asserted at trial that there is no requirement
that the opinions of affected property owners be solicited before a
street is closed, and the District Court found that there had been
no substantial departure from usual practices. But the city's own
application forms state that they must be signed by "[a]ll owners
abutting the thoroughfare to be closed." App. 137. At trial, city
officials took the position that this language only refers to
individuals owning property abutting at the point of the closing.
If that is accurate, then, on the city's theory, any two property
owners living across a street from one another could seek to close
it, and the city would have no obligation to consult any other
residents at all before approving the closing. Put gently, such
testimony is contrary to common sense, and not worthy of great
deference.
[
Footnote 3/9]
During the brief City Council hearing, residents of the area
north of Hein Park presented petitions with approximately 1,000
signatures protesting the closing of West Drive, stating: "This
Closing symbolizes in unmistakable terms a White neighborhood
shutting its door on its adjacent Black and integrated
communities." These petitions made express reference to the racial
impact. Witnesses before the Council also made reference to the
racial character of the neighborhoods involved.
See, e.g.,
Ex. 30, pp. 2-3, 6, 7, 11. The trial judge took judicial notice of
the fact that the area to the north of Hein Park was predominantly
Negro, and he added:
"[I]f the City Council didn't know that that property coming up
to Jackson Avenue [northern boundary of Hein Park] was
predominently [
sic] black, then I have got my doubts about
them."
Tr. 324.
[
Footnote 3/10]
See Watson v. Memphis, 373 U.
S. 526 (1963).
[
Footnote 3/11]
I do not mean by this discussion to imply that a showing of
discriminatory motivation is required before a violation of § 1982
may be made out. I merely suggest that, if such a finding is
required, the record in this case contains considerable evidence
from which it could be made.
See 451
U.S. 100fn3/14|>n. 14,
infra. Nor am I deterred by
the trial court's conclusion that no discriminatory motive was
involved in the closing of West Drive. The Court of Appeals
disagreed with this finding because the panel believed that the
District Judge
"conceived himself limited in his capability to grant relief by
the language in [the first opinion], and that he placed too high a
threshold upon the requirements of Section 1982 and, underlying it,
the Thirteenth Amendment."
610 F.2d 395, 402. In its first opinion, the panel discussed §
1982 only insofar as it related to the city's willingness to grant
a white community a benefit (the closing of a street) that was
denied to a Negro community. 535 F.2d 976, 978 (1976). Much of the
evidence presented at trial concerned this issue, and some of the
comments of the trial judge suggest that he might have thought it
the only one to be decided. In fact, § 1982 encompasses
considerably more than the granting of a benefit to a white
community when the same right is denied to Negroes. For example, a
violation of the statute might be made out through a showing that a
benefit was granted to a white community in such a manner that it
harmed Negro property rights.
See infra at
451 U. S.
148-149. Thus, if the District Court, in fact, thought
that respondents could show a violation of § 1982 only by showing
that they had been denied a benefit granted to white residents, it
was applying an improper legal standard in considering whether
there was discrimination. This likelihood that the District Court
indeed applied an improper standard must, in turn, taint the
finding that intentional discrimination was absent. Thus, to the
extent that the majority reaches its conclusion through reliance on
that finding by the District Court, it is relying on a fact not
properly found. The appropriate response in this situation should
be to instruct the Court of Appeals to remand the case to the
District Court for reconsideration of the evidence under the
correct legal standard.
[
Footnote 3/12]
The District Court expressly credited Dr. Feit's testimony that
racial hostility and arrests of Negro residents would increase.
App. 155. That court did not discuss Dr. Feit's testimony that
property values in the area north of Hein Park would decrease as a
result of the closing of West Drive. There is absolutely no record
evidence contravening either Dr. Feit's or real estate agent
Moore's testimony that property values would fall.
[
Footnote 3/13]
Indeed, we have in the past implied that a violation of § 1982
can be made out when the challenged action may have an adverse
impact on property values in the future.
Tillman v.
Wheaton-Haven Recreation Assn., Inc., 410 U.
S. 431,
410 U. S. 437
(1973).
See Wright v. Salisbury Club, Ltd., 632 F.2d 309,
314-316 (CA4 1980).
[
Footnote 3/14]
Like the majority, I do not reach the question whether a showing
of discriminatory intent is a necessary element of a violation of §
1982. JUSTICE WHITE, in his opinion concurring in the judgment,
examines the language of the statute and the legislative history
and concludes that a showing of racially discriminatory purpose is
indeed required. I do not believe that his arguments support his
conclusion. The language of the statute simply declares that
"[a]ll citizens of the United States shall have the same right,
in every State and Territory, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real
and personal property."
The plain language does not suggest an intent requirement,
because it does not condition a violation of § 1982 on the
motivation of any person or persons. There is nothing in the
statute to suggest, for example, that a right denied through sheer
insensitivity is entitled to less protection than one denied
through racial animus. I agree with JUSTICE WHITE that the
legislative history suggests a congressional intent to strike down
both state laws that, by their terms, served to oppress the former
slaves and those that were enforced with that goal in mind. But,
particularly in light of the broad statutory language, I find no
basis for concluding that that is all that Congress meant to do.
Even if JUSTICE WHITE is correct, and racially discriminatory
motivation must be demonstrated under § 1982, it is enough for me
if the evidence raises an inference of intent and the government
fails to rebut it with a sufficiently strong explanation. And on
that premise, I would certainly hold that intent must be inferred
when, as here, municipal officials were acting on behalf of what
they knew to be, and what had always been, an all-white community
were acting not in accordance with any municipal plan, but instead
for the sole benefit of that white community, were aware in the
course of their proceedings that a predominantly Negro community
would be injured by their official action, deviated significantly
from their usual procedures, and gave the Negro community no
meaningful opportunity to state its case. I do not believe that
this inference is successfully rebutted on the facts of this case.
See infra at
451 U. S.
152-153.
[
Footnote 3/15]
The majority implies,
see ante at
451 U. S. 114,
n. 23, that there is analytical significance in the fact that
although the defendants are the city and its officials, respondents
introduced evidence as to the motivations of the private citizens
who petitioned the city to close West Drive. But it is beyond
dispute that § 1982 has application to official government action
that merely ratifies private discriminatory conduct.
See Hurd
v. Hodge, 334 U. S. 24,
334 U. S. 31-34
(1948).
See also Cong.Globe, 39th Cong., 1st Sess., 1833
(1866) (remarks of Rep. Lawrence) (statute reaches State's failure
to protect rights, as well as its actions that infringe them).
[
Footnote 3/16]
See 451
U.S. 100fn3/9|>n. 9,
supra.
[
Footnote 3/17]
I do not understand the majority to dispute the conclusion by
the Court of Appeals that
"[t]he proposed closing was not enacted in response to any
uniform city planning effort directed generally to the preservation
of the residential neighborhoods throughout the city."
610 F.2d at 404. That statement would, in fact, be difficult to
dispute in light of the testimony by a city official that a street
closing for traffic control purposes is, in fact, unprecedented.
See Tr. 297-298 (testimony of Paul Goldstein). Of course,
the result that I reach does not turn on the accuracy of the
statement by the Court of Appeals.
[
Footnote 3/18]
In light of my disposition of the statutory question, I would
ordinarily find it unnecessary to consider the merits of the
Thirteenth Amendment argument. But I cannot let the Court's
discussion of the constitutional claim pass without comment. The
majority reserves until another case the issue whether § 1 of the
Amendment, by its own force, bans "badges and incidents of slavery"
because, in its view,
"a review of the justification for the official action
challenged in this case demonstrates that its disparate impact on
black citizens could not . . . be fairly characterized as a badge
or incident of slavery."
Ante at
451 U. S. 126.
For reasons that I have already indicated, I believe that the
degree of harm to respondents from the erection of a barrier at the
end of West Drive far exceeds the minimal inconvenience found by
the majority. Assuming with the majority that the Amendment would,
even without implementing legislation, ban more than the mere
practice of slavery, I would conclude that official action causing
harm of the magnitude suffered here plainly qualifies as a "badge
or incident" of slavery, at least as those terms were understood by
the Reconstruction Congress.
When the Thirteenth Amendment was being debated, supporters and
opponents alike acknowledged that it would have the effect of
striking down racial discrimination in a wide variety of areas.
See, e.g., Cong.Globe, 38th Cong., 1st Sess., 1465, 2944,
2962, 2979, 2982-2983, 2987 (1865).
See generally J.
tenBroek, Equal Under Law 162-168 (rev. ed.1965). In enacting § 1
of the Civil Rights Act of 1866, the provision that produced both §
1981 and § 1982,
see Runyon v. McCrary, 427 U.
S. 160,
427 U. S. 168,
n. 8, 170 (1976), Congress did not believe it was doing more than
spelling out the guarantees implicit in § 1 of the Thirteenth
Amendment.
See Cong.Globe, 39th Cong., 1st Sess., 503-504
(1866) (remarks of Sen. Howard);
id. at 602-603 (remarks
of Sen. Lane); R. Kluger, Simple Justice 47, 627-629 (1975).
Because that Congress included so many of those who had a hand in
drafting the Thirteenth Amendment,
cf. Jones v. Alfred H. Mayer
Co., 392 U. S. 409,
392 U. S.
439-440 (1968), I would give its judgment considerable
deference. Consequently, I would hold that, because the closing of
West Drive is forbidden, on these facts, by § 1982, it is,
a
fortiori, a violation of the Thirteenth Amendment as well. Of
course, this should not be taken as an argument that Congress
cannot, under § 2 of the Thirteenth Amendment, enact
legislation forbidding more than would § 1 of the Amendment,
standing alone. I simply suggest that Congress did not do so when
it enacted § 1 of the Civil Rights Act of 1866.
I also do not mean to imply that all municipal decisions that
affect Negroes adversely and benefit whites are prohibited by the
Thirteenth Amendment. I would, however, insist that the government
carry a heavy burden of justification before I would sustain
against Thirteenth Amendment challenge conduct as egregious as
erection of a barrier to prevent predominantly Negro traffic from
entering a historically all-white neighborhood. For reasons that I
have already stated, I do not believe that the city has discharged
that burden in this case, and, for that reason, I would hold that
the erection of the barrier at the end of West Drive amounts to a
badge or incident of slavery forbidden by the Thirteenth
Amendment.