In 1960, petitioners, Negro residents of Memphis, Tenn., sued in
a Federal District Court for declaratory and injunctive relief
directing immediate desegregation of public parks and other
publicly owned or operated recreational facilities from which
Negroes were still excluded. The City denied neither the fact that
the majority of the relevant facilities were operated on a
segregated basis nor its duty under the Fourteenth Amendment to
terminate its policy of conditioning use of such facilities on
race. Instead, it pointed to the partial desegregation already
effected and attempted to justify its further delay in conforming
fully to constitutional mandates by urging the need and wisdom of
proceeding slowly and gradually in its desegregation efforts. There
was no evidence that there had been any violence or meaningful
disturbances when other recreational facilities had been
desegregated, and there was evidence that such prior transitions
had been peaceful. The District Court denied the relief sought and
ordered the City to submit within six months a plan providing
additional time for desegregation of the relevant facilities.
Held: the continued denial to petitioners of the use of
city facilities solely because of their race is without warrant,
and prompt vindication of their rights is required. Pp.
373 U. S.
528-539.
(a) In considering the appropriateness of the equitable decree
entered below inviting a plan calling for an even longer delay in
effecting desegregation, this Court cannot ignore the passage of a
substantial period of time since the original declaration of the
manifest unconstitutionality of racial practices such as are here
challenged, the repeated and numerous decisions giving notice of
such illegality, and the many intervening opportunities heretofore
available to attain the equality of treatment which the Fourteenth
Amendment commands the States to achieve. Pp.
373 U. S.
529-530.
(b) This Court's decision in
Brown v. Board of
Education, 349 U. S. 294,
never contemplated that the concept of "deliberate speed" would
countenance indefinite delay in elimination of racial barriers
Page 373 U. S. 527
in public schools, let alone other public facilities not
involving the same physical problems or comparable conditions. P.
373 U. S.
530.
(c) Desegregation of parks and other recreational facilities
does not present the same kinds of cognizable difficulties inhering
in elimination of racial classification in schools, at which
attendance is compulsory, the adequacy of teachers and facilities
crucial, and questions of geographic assignment often of major
significance. Pp.
373 U. S.
530-532.
(d) Even the delay countenanced by
Brown was a
necessary, albeit significant, adaptation of the usual principle
that any deprivation of constitutional rights calls for prompt
rectification.c The rights here asserted are, like all such rights,
present rights, and unless there is an overwhelmingly compelling
reason, they are to be promptly fulfilled. Pp.
373 U. S.
532-533.
(e) The claims of the City to further delay in affording the
petitioners that to which they are clearly and unquestionably
entitled cannot be upheld except upon the most convincing and
impressive demonstration by the City that such delay is manifestly
compelled by constitutionally cognizable circumstances warranting
the exercise of an appropriate equitable discretion by a court. P.
373 U. S.
533.
(f) Constitutional rights may not be denied simply because of
hostility to their assertion or exercise. Pp.
373 U. S.
535-536.
(g) The City has failed to demonstrate any compelling or
convincing reason requiring further delay in implementing the
constitutional proscription of segregation of publicly owned or
operated recreational facilities. Pp.
373 U. S.
534-539.
303 F.2d 863, reversed.
Page 373 U. S. 528
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
The issue in this case, simply stated, is whether the City of
Memphis may further delay in meeting fully its constitutional
obligation under the Fourteenth Amendment to desegregate its public
parks and other municipal recreational facilities.
The petitioners, adult Negro residents of Memphis, commenced
this action against the city in May, 1960, in the United States
District Court for the Western District of Tennessee, seeking
declaratory and injunctive relief directing immediate desegregation
of municipal parks and other city owned or operated recreational
facilities from which Negroes were then still excluded. The city
denied neither the fact that the majority of the relevant
facilities were operated on a segregated basis nor its duty under
the Fourteenth Amendment to terminate its policy of conditioning
use of such facilities on race. Instead, it pointed to the partial
desegregation already effected and attempted to justify its further
delay in conforming fully and at once to constitutional mandates by
urging the need and wisdom of proceeding slowly and gradually in
its desegregation efforts.
The District Court denied the relief sought by the petitioners
and ordered the city to submit, within six months, a plan providing
additional time for desegregation of the relevant facilities.
[
Footnote 1] The Court of
Appeals for the Sixth Circuit affirmed. 303 F.2d 863. We granted
certiorari, 371 U.S. 909, to consider the important question
presented and the applicability here of the principles enunciated
by this Court in the second
Brown decision,
Brown v.
Board of Education, 349 U. S. 294,
upon which the
Page 373 U. S. 529
courts below relied in further delaying complete vindication of
the petitioners' constitutional rights.
We find the second
Brown decision to be inapplicable
here, and accordingly reverse the judgment below.
I
It is important at the outset to note the chronological context
in which the city makes its claim to entitlement to additional time
within which to work out complete elimination of racial barriers to
use of the public facilities here involved. It is now more than
nine years since this Court held in the first
Brown
decision,
Brown v. Board of Education, 347 U.
S. 483, that racial segregation in state public schools
violates the Equal Protection Clause of the Fourteenth Amendment.
And it was almost eight years ago -- in 1955, the year after the
decision on the merits in
Brown -- that the constitutional
proscription of state enforced racial segregation was found to
apply to public recreational facilities.
See Dawson v. Mayor
and City Council of Baltimore, 220 F.2d 386,
aff'd,
350 U.S. 877;
see also Muir v. Louisville Park Theatrical
Assn., 347 U.S. 971.
Thus, the applicability here of the factors and reasoning relied
on in framing the 1955 decree in the second
Brown
decision,
supra, which contemplated the possible need of
some limited delay in effecting total desegregation of public
schools, must be considered not only in the context of factual
similarities, if any, between that case and this one, but also in
light of the significant fact that the governing constitutional
principles no longer bear the imprint of newly enunciated doctrine.
In considering the appropriateness of the equitable decree entered
below inviting a plan calling for an even longer delay in effecting
desegregation, we cannot ignore the passage of a substantial period
of time since the original declaration of the manifest
unconstitutionality of racial practices
Page 373 U. S. 530
such as are here challenged, the repeated and numerous decisions
giving notice of such illegality, [
Footnote 2] and the many intervening opportunities
heretofore available to attain the equality of treatment which the
Fourteenth Amendment commands the States to achieve. These factors
must inevitably and substantially temper the present import of such
broad policy considerations as may have underlain, even in part,
the form of decree ultimately framed in the
Brown case.
Given the extended time which has elapsed, it is far from clear
that the mandate of the second
Brown decision requiring
that desegregation proceed with "all deliberate speed" would today
be fully satisfied by types of plans or programs for desegregation
of public educational facilities which eight years ago might have
been deemed sufficient.
Brown never contemplated that the
concept of "deliberate speed" would countenance indefinite delay in
elimination of racial barriers in schools, let alone other public
facilities not involving the same physical problems or comparable
conditions.
II
When, in 1954, in the first
Brown decision, this Court
declared the constitutional impermissibility of racial segregation
in public schools, it did not immediately frame
Page 373 U. S. 531
a decree, but instead invited and heard further argument on the
question of relief. In its subsequent opinion, the Court noted that
"[f]ull implementation of these [applicable] constitutional
principles may require solution of varied local school problems,"
and indicated an appropriate scope for the application of equitable
principles consistent with both public and private need and for
"exercise of [the] . . . traditional attributes of equity power."
349 U.S. at
349 U. S.
299-300. The District Courts to which the cases there
under consideration were remanded were invested with a discretion
appropriate to ultimate fashioning of detailed relief consonant
with properly cognizable local conditions. This did not mean,
however, that the discretion was even then unfettered, or
exercisable without restraint. Basic to the remand was the concept
that desegregation must proceed with "all deliberate speed," and
the problems which might be considered and which might justify a
decree requiring something less than immediate and total
desegregation were severely delimited. Hostility to the
constitutional precepts underlying the original decision was
expressly and firmly pretermitted as such an operative factor.
Id. at
349 U. S.
300.
The nature of the ultimate resolution effected in the second
Brown decision largely reflected no more than a
recognition of the unusual and particular problems inhering in
desegregating large numbers of schools throughout the country. The
careful specification of factors relevant to a determination
whether any delay in complying fully and completely with the
constitutional mandate would be warranted demonstrated a concern
that delay not be conditioned upon insufficient reasons or, in any
event, tolerated unless it imperatively and compellingly appeared
unavoidable.
This case presents no obvious occasion for the application of
Brown. We are not here confronted with attempted
desegregation of a local school system with
Page 373 U. S. 532
any or all of the perhaps uniquely attendant problems,
administrative and other, specified in the second
Brown
decision as proper considerations in weighing the need for further
delay in vindicating the Fourteenth Amendment rights of
petitioners. [
Footnote 3]
Desegregation of parks and other recreational facilities does not
present the same kinds of cognizable difficulties inhering in
elimination of racial classification in schools at which attendance
is compulsory, the adequacy of teachers and facilities crucial, and
questions of geographic assignment often of major significance.
[
Footnote 4]
Most importantly, of course, it must be recognized that even the
delay countenanced by
Brown was a necessary, albeit
significant, adaptation of the usual principle that any deprivation
of constitutional rights calls for prompt
Page 373 U. S. 533
rectification. The rights here asserted are, like all such
rights, present rights; they are not merely hopes to some future
enjoyment of some formalistic constitutional promise. The basic
guarantees of our Constitution are warrants for the here and now,
and, unless there is an overwhelmingly compelling reason, they are
to be promptly fulfilled. [
Footnote
5] The second
Brown decision is but a narrowly drawn,
and carefully limited, qualification upon usual precepts of
constitutional adjudication and is not to be unnecessarily expanded
in application.
Solely because of their race, the petitioners here have been
refused the use of city owned or operated parks and other
recreational facilities which the Constitution mandates be open to
their enjoyment on equal terms with white persons. The city has
effected, continues to effect, and claims the right or need to
prolong patently unconstitutional racial discriminations violative
of now long declared and well established individual rights. The
claims of the city to further delay in affording the petitioners
that to which they are clearly and unquestionably entitled cannot
be upheld except upon the most convincing and impressive
demonstration by the city that such delay is manifestly compelled
by constitutionally cognizable circumstances warranting the
exercise of an appropriate equitable discretion by a court. In
short, the city must sustain an extremely heavy burden of
proof.
Examination of the facts of this case in light of the foregoing
discussion discloses with singular clarity that this burden has not
been sustained; indeed, it is patent
Page 373 U. S. 534
from the record that the principles enunciated in the second
Brown decision have absolutely no application here.
III
The findings of the District Court disclose an unmistakable and
pervasive pattern of local segregation which, in fact, the city
makes no attempt to deny, but merely attempts to justify as
necessary for the time being. Memphis owns 131 parks, all of which
are operated by the Memphis Park Commission. Of these, only 25 were
at the time of trial open to use without regard to race; [
Footnote 6] 58 were restricted to use
by whites and 25 to use by Negroes; the remaining 23 parks were
undeveloped raw land. Subject to exceptions, neighborhood parks
were generally segregated according to the racial character of the
area in which located. The City Park Commission also operates a
number of additional recreational facilities, by far the largest
share of which were found to be racially segregated. Though a zoo,
an art gallery, and certain boating and other facilities are now
desegregated, about two-thirds (40) of the 61 city-owned
playgrounds were at the time of trial reserved for whites only, and
the remainder were set aside for Negro use. Thirty of the 56
playgrounds and other facilities operated by the municipal Park
Commission on property owned by churches, private groups, or the
School Board were set aside for the exclusive use of whites, while
26 were reserved for Negroes. All 12 of the municipal
Page 373 U. S. 535
community centers were segregated, eight being available only to
whites and four to Negroes. Only two of the seven city golf courses
were open to Negroes; play on the remaining five was limited to
whites. While several of these properties have been desegregated
since the filing of suit, the general pattern of racial segregation
in such public recreational facilities persists. [
Footnote 7]
The city asserted in the court below, and states here, that its
good faith in attempting to comply with the requirements of the
Constitution is not in issue, and contends that gradual
desegregation on a facility by facility basis is necessary to
prevent interracial disturbances, violence, riots, and community
confusion and turmoil. The compelling answer to this contention is
that constitutional rights may not be denied simply because of
hostility to their assertion or exercise.
See Wright v.
Georgia, ante, p. 284;
Brown v. Board of Education,
349 U. S. 294,
349 U. S. 300.
Cf. Taylor v. Louisiana, 370 U. S. 154. As
declared in
Cooper v. Aaron, 358 U. S.
1,
358 U. S. 16,
"law and order are not . . . to be preserved by depriving the Negro
children of their constitutional rights." This is really no more
than an application of a principle enunciated much earlier in
Buchanan v. Warley, 245 U. S. 60, a
case dealing with a somewhat different form of state-ordained
segregation -- enforced separation of Negroes and whites by
neighborhood. A unanimous Court, in striking down the officially
imposed pattern of racial segregation there in question, declared
almost a half century ago:
"It is urged that this proposed segregation will promote the
public peace by preventing race conflicts. Desirable as this is,
and important as is the
Page 373 U. S. 536
preservation of the public peace, this aim cannot be
accomplished by laws or ordinances which deny rights created or
protected by the federal Constitution."
245 U.S. at
245 U. S.
81.
Beyond this, however, neither the asserted fears of violence and
tumult nor the asserted inability to preserve the peace was
demonstrated at trial to be anything more than personal
speculations or vague disquietudes of city officials. There is no
indication that there had been any violence or meaningful
disturbances when other recreational facilities had been
desegregated. In fact, the only evidence in the record was that
such prior transitions had been peaceful. [
Footnote 8] The Chairman of the Memphis Park Commission
indicated that the city had "been singularly blessed by the absence
of turmoil up to this time on this race question"; notwithstanding
the prior desegregation of numerous recreational facilities, the
same witness could point as evidence of the unrest or turmoil which
would assertedly occur upon complete desegregation of such
facilities only to a number of anonymous letters and phone calls
which he had received. The Memphis Chief of Police mentioned
without further description some "troubles" at the time bus service
was desegregated and referred to threatened violence in connection
with a "sit-in" demonstration at a local store, but, beyond making
general predictions, gave no concrete indication of any inability
of authorities to maintain the peace. The only violence referred to
at any park or recreational facility occurred in segregated parks,
and was not the product of attempts at desegregation. Moreover,
there was no factual evidence to support the bare testimonial
speculations that authorities would be unable to
Page 373 U. S. 537
cope successfully with any problems which in fact might arise or
to meet the need for additional protection should the occasion
demand.
The existing and commendable goodwill between the races in
Memphis, to which both the District Court and some of the witnesses
at trial made express and emphatic reference as in some
inexplicable fashion supporting the need for further delay, can
best be preserved and extended by the observance and protection,
not the denial, of the basic constitutional rights here asserted.
The best guarantee of civil peace is adherence to, and respect for,
the law.
The other justifications for delay urged by the city or relied
upon by the courts below are no more substantial, either legally or
practically. It was, for example, asserted that immediate
desegregation of playgrounds and parks would deprive a number of
children -- both Negro and white -- of recreational facilities;
this contention was apparently based on the premise that a number
of such facilities would have to be closed because of the
inadequacy of the "present" park budget to provide additional
"supervision" assumed to be necessary to operate unsegregated
playgrounds. As already noted, however, there is no warrant in this
record for assuming that such added supervision would, in fact, be
required, much less that police and recreation personnel would be
unavailable to meet such needs if they should arise. [
Footnote 9] More significantly, however, it
is obvious that vindication of conceded constitutional rights
cannot be made dependent upon any theory that it is less expensive
to deny than to afford them. We will not assume that the citizens
of Memphis accept the questionable premise implicit in this
argument
Page 373 U. S. 538
or that either the resources of the city are inadequate, or its
government unresponsive, to the needs of all of its citizens.
In support of its judgment, the District Court also pointed out
that the recreational facilities available for Negroes were roughly
proportional to their number, and therefore presumably adequate to
meet their needs. [
Footnote
10] While the record does not clearly support this, no more
need be said than that, even if true, it reflects an impermissible
obeisance to the now thoroughly discredited doctrine of "separate
but equal." The sufficiency of Negro facilities is beside the
point; it is the segregation by race that is unconstitutional.
Finally, the District Court deferred ruling as to the propriety
of ordering elimination of racial barriers at one facility, an art
museum, pending initiation of, and decision in, a state court
action to construe a racially restrictive covenant contained in the
deed of the property to the city. Of course, the outcome of the
state suit is irrelevant to whether the city may constitutionally
enforce the segregation, regardless of the effect which
desegregation may have on its title.
Cf. Pennsylvania v. Board
of Trusts, 353 U. S. 230. In
any event, there is no reason to believe that the restrictive
provision will be invoked. The museum has already been opened to
Negroes one day a week without complaint. [
Footnote 11]
Page 373 U. S. 539
Since the city has completely failed to demonstrate any
compelling or convincing reason requiring further delay in
implementing the constitutional proscription of segregation of
publicly owned or operated recreational facilities there is no
cause whatsoever to depart from the generally operative and here
clearly controlling principle that constitutional rights are to be
promptly vindicated. The continued denial to petitioners of the use
of city facilities solely because of their race is without warrant.
Under the facts in this case, the District Court's undoubted
discretion in the fashioning and timing of equitable relief was not
called into play; rather, affirmative judicial action was required
to vindicate plain and present constitutional rights. Today, no
less than 50 years ago, the solution to the problems growing out of
race relations "cannot be promoted by depriving citizens of their
constitutional rights and privileges,"
Buchanan v. Warley,
supra, 245 U.S. at
245 U. S.
80-81.
The judgment below must be and is reversed and the cause is
remanded for further proceedings consistent herewith.
Reversed.
[
Footnote 1]
The plan ultimately formulated, though not part of the record
here, was described in oral argument before the Court of Appeals.
It does not provide for complete desegregation of all facilities
until 1971.
[
Footnote 2]
See, e.g., Dawson v. Mayor and City Council of
Baltimore, 220 F.2d 386,
aff'd, 350 U.S. 877 (beaches
and bathhouses);
New Orleans City Park Improvement Assn. v.
Detiege, 252 F.2d 122,
aff'd, 358 U. S.
54 (golf courses and other facilities);
City of St.
Petersburg v. Alsup, 238 F.2d 830 (beach and swimming pools);
Tate v. Department of Conservation and
Development, 133 F. Supp.
53,
aff'd, 231 F.2d 615,
cert. denied, 352
U.S. 838 (parks);
Moorhead v. City of Fort
Lauderdale, 152 F.
Supp. 131,
aff'd, 248 F.2d 544 (golf course);
Fayson v. Beard, 134 F.
Supp. 379 (parks);
Holley v. City of
Portsmouth, 150 F. Supp.
6 (golf course);
Ward v. City of Miami, 151 F.
Supp. 593 (golf course);
Willie v. Harris
County, 202 F.
Supp. 549 (park). It is noteworthy that in none of these cases
was the possibility of delay in effecting desegregation even
considered.
[
Footnote 3]
The factors set out by the Court in the second
Brown
decision were
"problems related to administration, arising from the physical
condition of the school plant, the school transportation system,
personnel, revision of school districts and attendance areas into
compact units to achieve a system of determining admission to the
public schools on a nonracial basis, and revision of local laws and
regulations which may be necessary in solving the foregoing
problems."
349 U.S. at
349 U. S.
300-301.
[
Footnote 4]
Recognition of the possible need for delay has not even been
extended to desegregation of state colleges or universities in
which like problems were not presented.
See, e.g., Florida ex
rel. Hawkins v. Board of Control, 350 U.
S. 413, where, in remanding on the authority of
Brown, this Court said that,
"[a]s this case involves the admission of a Negro to a graduate
professional school, there is no reason for delay. He is entitled
to prompt admission under the rules and regulations applicable to
other qualified candidates."
350 U.S. at
350 U. S. 414.
See also Lucy v. Adams, 350 U. S. 1.
Similarly, both before and after
Brown, delay has neither
been suggested nor countenanced in eliminating operation of racial
barriers with respect to transportation,
e.g., Boynton v.
Virginia, 364 U. S. 454;
Henderson v. United States, 339 U.
S. 816;
Morgan v. Virginia, 328 U.
S. 373;
Browder v. Gayle, 142 F.
Supp. 707,
aff'd, 352 U.S. 903; voting,
e.g.,
Schnell v. Davis, 336 U.S. 933;
Smith v. Allwright,
321 U. S. 649;
racial zoning of property, e.g.,
City of Richmond v.
Deans, 281 U. S. 704;
Buchanan v. Warley, 245 U. S. 60; or
employment rights and union representation,
e.g., Brotherhood
of Railroad Trainmen v. Howard, 343 U.
S. 768.
[
Footnote 5]
This principle was well established even under the now discarded
"separate but equal" doctrine.
See, e.g., McLaurin v. Oklahoma
State Regents for Higher Education, 339 U.
S. 637,
339 U. S. 642;
Sweatt v. Painter, 339 U. S. 629,
339 U. S. 635;
Sipuel v. Board of Regents of University of Oklahoma,
332 U. S. 631,
332 U. S.
632-633.
See also Florida ex rel. Hawkins v. Board
of Control, 350 U. S. 413,
350 U. S. 414,
and notes
2 and |
2 and S. 526fn4|>4,
supra.
[
Footnote 6]
These figures, and others referred to in the text, apparently
represent the total extent of progress, as of the time of trial,
toward desegregation of recreational facilities since this Court's
decision eight years ago outlawing the practices here in question.
So far as appears, none of the relevant facilities was open for use
without regard to race prior to 1955, and, in fact, several new
parks have been opened on a segregated basis since that time.
[
Footnote 7]
It is not entirely clear precisely how many properties have
since trial actually been desegregated and how many were merely
changed from "white-only" to "Negro-only" use in line with changes
in neighborhood racial composition.
[
Footnote 8]
Nor, contrary to predictions, does it appear that violence or
disruption of any kind ensued upon elimination of racial barriers
to use of certain additional facilities subsequent to trial.
[
Footnote 9]
Except for the mention of some extra policemen assigned to duty
at the city zoo, no showing was made even that additional
supervision was necessary or provided at facilities which had been
desegregated previously.
[
Footnote 10]
Approximately 37% of Memphis' 500,000 residents are Negroes;
contrary to the apparent assumption of the trial court, the
recreational facilities available to Negroes were not at the time
of trial all quantitatively proportional to their number and their
complete or partial exclusion from certain other facilities
evidenced a substantial qualitative difference. Moreover, there was
testimony from Negro witnesses that they were excluded from golf
courses and playgrounds more convenient to their places of
residence than other like facilities open to them.
[
Footnote 11]
The city also asserted in the District Court that delay was
supported by the fact that desegregation of the Fairgrounds would
result in a substantial loss of revenues therefrom, and would be
unfair to contract concessionaires. This claim appears to have been
mooted by the intervening elimination of racial restrictions at
that facility, seemingly without difficulty.