Following the Court of Appeals' affirmance of a District Court
judgment invalidating enforced segregation on equal protection
grounds, the city council of Jackson, Mississippi, desegregated its
public recreational facilities, including its five public parks,
except for their swimming pools. Stating that the pools could not
be operated safely and economically on an integrated basis, the
council closed four city-owned pools and surrendered its lease on a
fifth, which the lessor, the YMCA, continued to operate for whites
only. Petitioners, Negro citizens of Jackson, then brought this
action, mainly on equal protection grounds, to force the city to
reopen and operate the pools on a desegregated basis. The District
Court held that there was no denial of equal protection. The Court
of Appeals affirmed, rejecting the contention that, since the pools
had been closed to avoid desegregation there was a denial of equal
protection.
Held:
1. The closing of the pools to all persons did not constitute a
denial of equal protection of the laws under the Fourteenth
Amendment to the Negroes. Pp.
403 U. S.
219-226.
(a) This case is distinguishable from
Griffin v. County
School Board of Prince Edward County, 377 U.
S. 218, and
Reitman v. Mulkey, 387 U.
S. 369, on both of which petitioners rely. In
Griffin, there were many facets of state involvement in
the segregated operation of "private" schools; here there is no
city involvement in the operation or funding of any pool. In
Reitman, the evidence was deemed sufficient to show that
the State, by enacting a constitutional amendment establishing the
right of private persons to discriminate in realty transactions,
thereby repealing two housing anti-discrimination laws, was
abetting refusal to rent apartments on racial grounds; here there
was no evidence that the city conspired with the YMCA that its pool
be segregated. Pp.
403 U. S.
221-224.
(b) In this case, where there was substantial evidence to
support the council's stated reason for closing the pools and
there
Page 403 U. S. 218
was no evidence of state action affecting Negroes differently
from white, petitioners' contention that equal protection
requirements were violated because the pool-closing decision was
motivated by anti-integration considerations must also fail, since
courts will not invalidate legislation based solely on asserted
illicit motivation by the enacting legislative body. Pp.
403 U. S.
224-226.
2. The city council's action in closing the pools, instead of
keeping them open on an integrated basis, did not create a "badge
or incident" of slavery in violation of the Thirteenth Amendment.
Pp.
403 U. S.
226-227.
419 F.2d 1222, affirmed.
BLACK, J., delivered the opinion of the Court, in which BURGER,
C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. BURGER, C.J.,
post, p.
403 U. S. 227,
and BLACKMUN, J.,
post, p.
403 U. S. 228,
filed concurring opinions. DOUGLAS, J., filed a dissenting opinion,
post, p.
403 U. S. 231.
WHITE, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
403 U. S. 240.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
WHITE, JJ., joined,
post, p.
403 U.S. 271.
MR. JUSTICE BLACK delivered the opinion of the Court.
In 1962, the city of Jackson, Mississippi, was maintaining five
public parks along with swimming pools, golf links, and other
facilities for use by the public on a racially segregated basis.
Four of the swimming pools were used by whites only, and one by
Negroes only. Plaintiffs brought an action in the United States
District
Page 403 U. S. 219
Court seeking a declaratory judgment that this state-enforced
segregation of the races was a violation of the Thirteenth and
Fourteenth Amendments, and asking an injunction to forbid such
practices. After hearings, the District Court entered a judgment
declaring that enforced segregation denied equal protection of the
laws, but it declined to issue an injunction. [
Footnote 1] The Court of Appeals affirmed, and we
denied certiorari. [
Footnote 2]
The city proceeded to desegregate its public parks, auditoriums,
golf courses, and the city zoo. However, the city council decided
not to try to operate the public swimming pools on a desegregated
basis. Acting in its legislative capacity, the council surrendered
its lease on one pool and closed four which the city owned. A
number of Negro citizens of Jackson then filed this suit to force
the city to reopen the pools and operate them on a desegregated
basis. The District Court found that the closing was justified to
preserve peace and order and because the pools could not be
operated economically on an integrated basis. [
Footnote 3] It held the city's action did not deny
black citizens equal protection of the laws. The Court of Appeals,
sitting en banc, affirmed, six out of 13 judges dissenting.
[
Footnote 4] That court
rejected the contention that, since the pools had been closed
either in whole or in part to avoid desegregation, the city
council's action was a denial of equal protection of the laws. We
granted certiorari to decide that question. We affirm.
I
Petitioners rely chiefly on the first section of the Fourteenth
Amendment, which forbids any State to "deny to any person within
its jurisdiction the equal protection
Page 403 U. S. 220
of the laws." There can be no doubt that a major purpose of this
amendment was to safeguard Negroes against discriminatory state
laws -- state laws that fail to give Negroes protection equal to
that afforded white people. History shows that the achievement of
equality for Negroes was the urgent purpose not only for passage of
the Fourteenth Amendment, but for the Thirteenth and Fifteenth
Amendments as well.
See, e.g., 83 U. S. 16
Wall. 36,
83 U. S. 71-72
(1873). Thus, the Equal Protection Clause was principally designed
to protect Negroes against discriminatory action by the States.
Here there has unquestionably been "state action" because the
official local government legislature, the city council, has closed
the public swimming pools of Jackson. The question, however, is
whether this closing of the pools is state action that denies "the
equal protection of the laws" to Negroes. It should be noted first
that neither the Fourteenth Amendment nor any Act of Congress
purports to impose an affirmative duty on a State to begin to
operate or to continue to operate swimming pools. Furthermore, this
is not a case where whites are permitted to use public facilities
while blacks are denied access. It is not a case where a city is
maintaining different sets of facilities for blacks and whites and
forcing the races to remain separate in recreational or educational
activities. [
Footnote 5]
See, e.g., Watson v. City of Memphis, 373 U.
S. 526 (1963);
Brown v. Board of Education,
347 U. S. 483
(1954).
Unless, therefore, as petitioners urge, certain past cases
require us to hold that closing the pools to all denied
Page 403 U. S. 221
equal protection to Negroes, we must agree with the courts below
and affirm.
II
Although petitioners cite a number of our previous cases, the
only two which even plausibly support their argument are
Griffin v. County School Board of Prince Edward County,
377 U. S. 218
(1964), and
Reitman v. Mulkey, 387 U.
S. 369 (1967). For the reasons that follow, however,
neither case leads us to reverse the judgment here. [
Footnote 6]
A. In
Griffin, the public schools of Prince Edward
County, Virginia, were closed under authority of state and county
law, and so-called "private schools" were set up in their place to
avoid a court desegregation order. At the same time, public schools
in other counties in Virginia remained open. In Prince Edward
County, the "private schools" were open to whites only, and these
schools were, in fact, run by a practical partnership
Page 403 U. S. 222
between State and county, designed to preserve segregated
education. We pointed out in
Griffin the many facets of
state involvement in the running of the "private schools." The
State General Assembly had made available grants of $150 per child
to make the program possible. This was supplemented by a county
grant program of $100 per child and county property tax credits for
citizens contributing to the "private schools." Under those
circumstances, we held that the closing of public schools in just
one county while the State helped finance "private schools" was a
scheme to perpetuate segregation in education which constituted a
denial of equal protection of the laws. Thus, the
Griffin
case simply treated the school program for what it was -- an
operation of Prince Edward County schools under a thinly disguised
"private" school system actually planned and carried out by the
State and the county to maintain segregated education with public
funds. That case can give no comfort to petitioners here. This
record supports no intimation that Jackson has not completely and
finally ceased running swimming pools for all time. Unlike Prince
Edward County, Jackson has not pretended to close public pools only
to run them under a "private" label. It is true that the Leavell
Woods pool, previously leased by the city from the YMCA, is now run
by that organization, and appears to be open only to whites. And,
according to oral argument, another pool owned by the city before
1963 is now owned and operated by Jackson State College, a
predominantly black institution, for college students and their
guests. [
Footnote 7] But,
unlike the "private schools" in Prince Edward County, there is
nothing here to show the city is directly or indirectly involved in
the funding or operation of either pool. [
Footnote 8] If the time ever
Page 403 U. S. 223
comes when Jackson attempts to run segregated public pools
either directly or indirectly, or participates in a subterfuge
whereby pools are nominally run by "private parties" but actually
by the city, relief will be available in the federal courts.
B. Petitioners also claim that Jackson's closing of the public
pools authorizes or encourages private pool owners to discriminate
on account of race, and that such "encouragement" is prohibited by
Reitman v. Mulkey, supra.
In
Reitman, California had repealed two laws relating
to racial discrimination in the sale of housing by passing a
constitutional amendment establishing the right of private persons
to discriminate on racial grounds in real estate transactions. This
Court there accepted what it designated as the holding of the
Supreme Court of California, namely that the constitutional
amendment was an official authorization of racial discrimination
which significantly involved the State in the discriminatory acts
of private parties. 387 U.S. at
387 U. S.
376-378,
387 U. S.
380-381.
In the first place, there are no findings here about any state
"encouragement" of discrimination, and it is not clear that any
such theory was ever considered by the District Court. The
implication of petitioners' argument appears to be that the fact
the city turned over to the YMCA a pool it had previously leased is
sufficient to show automatically that the city has conspired with
the YMCA to deprive Negroes of the opportunity to swim in
integrated pools. Possibly, in a case where the city and the YMCA
were both parties, a court could find that the city engaged in a
subterfuge, and that liability could be fastened on it as an active
participant
Page 403 U. S. 224
in a conspiracy with the YMCA. We need not speculate upon such a
possibility, for there is no such finding here, and it does not
appear from this record that there was evidence to support such a
finding.
Reitman v. Mulkey was based on a theory that the
evidence was sufficient to show the State was abetting a refusal to
rent apartments on racial grounds. On this record,
Reitman
offers no more support to petitioners than does
Griffin.
III
Petitioners have also argued that respondents' action violates
the Equal Protection Clause because the decision to close the pools
was motivated by a desire to avoid integration of the races. But no
case in this Court has held that a legislative act may violate
equal protection solely because of the motivations of the men who
voted for it. The pitfalls of such analysis were set forth clearly
in the landmark opinion of Mr. Chief Justice Marshall in
Fletcher v.
Peck, 6 Cranch 87, 130 (1810), where the Court
declined to set aside the Georgia Legislature's sale of lands on
the theory that its members were corruptly motivated in passing the
bill.
A similar contention that illicit motivation should lead to a
finding of unconstitutionality as advanced in
United States v.
O'Brien, 391 U. S. 367,
391 U. S. 383
(1968), where this Court rejected the argument that a defendant
could not be punished for burning his draft card because Congress
had allegedly passed the statute to stifle dissent. That opinion
explained well the hazards of declaring a law unconstitutional
because of the motivations of its sponsors. First, it is extremely
difficult for a court to ascertain the motivation, or collection of
different motivations, that lie behind a legislative enactment.
Id. at
391 U. S. 383,
391 U. S. 384.
Here, for example, petitioners have argued that the Jackson pools
were closed because of ideological opposition to racial integration
in swimming
Page 403 U. S. 225
pools. Some evidence in the record appears to support this
argument. On the other hand, the courts below found that the pools
were closed because the city council felt they could not be
operated safely and economically on an integrated basis. There is
substantial evidence in the record to support this conclusion. It
is difficult or impossible for any court to determine the "sole" or
"dominant" motivation behind the choices of a group of legislators.
Furthermore, there is an element of futility in a judicial attempt
to invalidate a law because of the bad motives of its supporters.
If the law is struck down for this reason, rather than because of
its facial content or effect, it would presumably be valid as soon
as the legislature or relevant governing body repassed it for
different reasons.
It is true there is language in some of our cases interpreting
the Fourteenth and Fifteenth Amendments which may suggest that the
motive or purpose behind a law is relevant to its
constitutionality.
Griffin v. County School Board, supra;
Gomillion v. Lightfoot, 364 U. S. 339,
364 U. S. 347
(1960). But the focus in those cases was on the actual effect of
the enactments, not upon the motivation which led the States to
behave as they did. In
Griffin, as discussed
supra, the State was, in fact, perpetuating a segregated
public school system by financing segregated "private" academies.
And in
Gomillion, the Alabama Legislature's gerrymander of
the boundaries of Tuskegee excluded virtually all Negroes from
voting in town elections. Here, the record indicates only that
Jackson once ran segregated public swimming pools, and that no
public pools are now maintained by the city. Moreover, there is no
evidence in this record to show that the city is now covertly
aiding the maintenance and operation of pools which are private in
name only. It shows no state action affecting blacks differently
from whites.
Page 403 U. S. 226
Petitioners have argued strenuously that a city's possible
motivations to ensure safety and save money cannot validate an
otherwise impermissible state action. This proposition is, of
course, true. Citizens may not be compelled to forgo their
constitutional rights because officials fear public hostility or
desire to save money.
Buchanan v. Warley, 245 U. S.
60 (1917);
Cooper v. Aaron, 358 U. S.
1 (1958);
Watson v. City of Memphis,
373 U. S. 526
(1963). But the issue here is whether black citizens in Jackson are
being denied their constitutional rights when the city has closed
the public pools to black and white alike. Nothing in the history
or the language of the Fourteenth Amendment nor in any of our prior
cases persuades us that the closing of the Jackson swimming pools
to all its citizens constitutes a denial of "the equal protection
of the laws."
IV
Finally, some faint and unpersuasive argument has been made by
petitioners that the closing of the pools violated the Thirteenth
Amendment, which freed the Negroes from slavery. The argument runs
this way: the first Mr. Justice Harlan's dissent in
Plessy v.
Ferguson, 163 U. S. 537,
163 U. S. 552
(1896), argued strongly that the purpose of the Thirteenth
Amendment was not only to outlaw slavery, but also all of its
"badges and incidents." This broad reading of the amendment was
affirmed in
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968). The denial of the right of Negroes to
swim in pools with white people is said to be a "badge or incident"
of slavery. Consequently, the argument seems to run, this Court
should declare that the city's closing of the pools to keep the two
races from swimming together violates the Thirteenth Amendment. To
reach that result from the Thirteenth Amendment would severely
stretch its short simple words and do violence to its history.
Establishing
Page 403 U. S. 227
this Court's authority under the Thirteenth Amendment to declare
new laws to govern the thousands of towns and cities of the country
would grant it a lawmaking power far beyond the imagination of the
amendment's authors. Finally, although the Thirteenth Amendment is
a skimpy collection of words to allow this Court to legislate new
laws to control the operation of swimming pools throughout the
length and breadth of this Nation, the Amendment does contain other
words that we held in
Jones v. Alfred H. Mayer Co. could
empower Congress to outlaw "badges of slavery." The last sentence
of the Amendment reads:
"Congress shall have power to enforce this article by
appropriate legislation."
But Congress has passed no law under this power to regulate a
city's opening or closing of swimming pools or other recreational
facilities.
It has not been so many years since it was first deemed proper
and lawful for cities to tax their citizens to build and operate
swimming pools for the public. Probably few persons, prior to this
case, would have imagined that cities could be forced by five
lifetime judges to construct or refurbish swimming pools which they
choose not to operate for any reason, sound or unsound. Should
citizens of Jackson or any other city be able to establish in court
that public, tax=supported swimming pools are being denied to one
group because of color and supplied to another, they will be
entitled to relief. But that is not the case here.
The judgment is
Affirmed.
[
Footnote 1]
Clark v. Thompson, 206 F.
Supp. 539 (SD Miss.1962).
[
Footnote 2]
313 F.2d 637 (CA5),
cert. denied, 375 U.S. 951
(1963).
[
Footnote 3]
3 The court's opinion is not officially reported.
[
Footnote 4]
419 F.2d 1222 (CA5 1969).
[
Footnote 5]
My Brother WHITE's dissent suggests that the pool closing
operates unequally on white and blacks because
"The action of the city in this case interposes a major
deterrent to seeking judicial or executive help in eliminating
racial restrictions on the use of public facilities."
Post at
403 U. S. 269.
It is difficult to see the force of this argument, since Jackson
has desegregated its public parks, auditoriums, golf courses, city
zoo, and the record indicates it now maintains no segregated public
facilities.
[
Footnote 6]
Bush v. Orleans Parish School Board, 187 F. Supp.
42 (ED La.1960),
aff'd, 365 U.
S. 569 (1961), does not lead us to reverse the judgment
here. In
Bush, we wrote no opinion, but merely affirmed a
lower federal court judgment that held unconstitutional certain
laws designed to perpetuate segregation in the Louisiana public
schools. One law held unconstitutional by the lower court empowered
the State Governor to close any school ordered to integrate;
another empowered him to close all state schools if one were
integrated. Of course, that case did not involve swimming pools,
but rather public schools, an enterprise we have described as
"perhaps the most important function of state and local
governments."
Brown v. Board of Education, supra, at
347 U. S. 493.
More important, the laws struck down in
Bush were part of
an elaborate package of legislation through which Louisiana sought
to maintain public education on a segregated basis, not to end
public education.
See also Bush v. Orleans Parish School
Board, 188 F.
Supp. 916 (ED La.1960). Of course, there was no serious problem
of probing the motives of a legislature in
Bush, because
most of the Louisiana statutes explicitly stated they were designed
to forestall integrated schools. 187 F. Supp. at 45.
[
Footnote 7]
Tr. of Oral Arg. 31-32.
[
Footnote 8]
There is no question before us here whether the black citizens
of Jackson may be entitled to utilize the swimming facilities of
Leavell Woods pool. Nothing on the present record indicates state
involvement in the running of that pool. The YMCA, which apparently
now operates the pool, was not joined as a party, and thus, of
course, no judgment could be entered against it.
MR. CHIEF JUSTICE BURGER, concurring.
I join the opinion of MR. JUSTICE BLACK, but add a brief
comment.
The elimination of any needed or useful public accommodation
Page 403 U. S. 228
or service is surely undesirable, and this is particularly so of
public recreational facilities. Unfortunately, the growing burdens
and shrinking revenues of municipal and state governments may lead
to more and more curtailment of desirable services. Inevitably,
every such constriction will affect some groups or segments of the
community more than others. To find an equal protection issue in
every closing of public swimming pools, tennis courts, or golf
courses would distort beyond reason the meaning of that important
constitutional guarantee. To hold, as petitioners would have us do,
that every public facility or service, once opened,
constitutionally "locks in" the public sponsor so that it may not
be dropped (
see the footnote to MR. JUSTICE BLACKMUN's
concurring opinion), would plainly discourage the expansion and
enlargement of needed services in the long run.
We are, of course, not dealing with the wisdom or desirability
of public swimming pools; we are asked to hold on a very meager
record that the Constitution requires that public swimming pools,
once opened, may not be closed. But all that is good is not
commanded by the Constitution, and all that is bad is not forbidden
by it. We would do a grave disservice, both to elected officials
and to the public, were we to require that every decision of local
governments to terminate a desirable service be subjected to a
microscopic scrutiny for forbidden motives rendering the decision
unconstitutional.
MR. JUSTICE BLACKMUN, concurring.
I, too, join MR. JUSTICE BLACK's opinion and the judgment of the
Court.
Cases such as this are "hard" cases for there is much to be said
on each side. In isolation, this litigation may
Page 403 U. S. 229
not be of great importance; however, it may have significant
implications.
The dissent of MR. JUSTICE WHITE rests on a conviction that the
closing of the Jackson pools was racially motivated, at least in
part, and that municipal action so motivated is not to be
tolerated. That dissent builds to its conclusion with a detailed
review of the city's and the State's official attitudes of past
years.
MR. JUSTICE BLACK's opinion stresses, on the other hand, the
facially equal effect upon all citizens of the decision to
discontinue the pools. It also emphasizes the difficulty and
undesirability of resting any constitutional decision upon what is
claimed to be legislative motivation.
I remain impressed with the following factors: (1) No other
municipal recreational facility in the city of Jackson has been
discontinued. Indeed, every other service -- parks, auditoriums,
golf courses, zoo -- that, once was segregated has been continued,
and operates on a nonsegregated basis. One must concede that this
was effectuated initially under pressure of the 1962 declaratory
judgment of the federal court. (2) The pools are not part of the
city's educational system. They are a general municipal service of
the nice-to-have but not essential variety, and they are a service,
perhaps a luxury, not enjoyed by many communities. (3) The pools
had operated at a deficit. It was the judgment of the city
officials that these deficits would increase. (4) I cannot read
into the closing of the pools an official expression of inferiority
toward black citizens, as MR. JUSTICE WHITE and those who join him
repetitively assert,
post at
403 U. S.
240-241,
403 U. S. 266,
and
403 U. S. 268,
and certainly, on this record, I cannot perceive this to be a
"fact" or anything other than speculation. Furthermore, the alleged
deterrent to relief, said to exist because of the risk of losing
other public facilities,
post at
403 U. S.
269,
Page 403 U. S. 230
is not detectable here in the face of the continued and
desegregated presence of all other recreational facilities provided
by the city of Jackson. (5) The response of petitioners' counsel at
oral argument to my inquiry
* whether the city
was to be "locked in" with its pools for an indefinite time in the
future, despite financial loss of whatever amount, just because, at
one time, the pools of Jackson had been segregated, is
disturbing.
There are, of course, opposing considerations enumerated in the
two dissenting opinions. As my Brothers BLACK, DOUGLAS, and WHITE
all point out, however, the Court's past cases do not precisely
control this one, and the present case, if reversed, would take us
farther than any before. On balance, in the light of the factors I
have listed above, my judgment is that this is neither the time nor
the occasion to be punitive toward Jackson for its past
constitutional sins of segregation. On the record as presented to
us in this case, I therefore vote to affirm.
Page 403 U. S. 231
*
"Q. Mr. Rosen, if you were to prevail here, would the city of
Jackson be locked in to operating the pools irrespective of the
economic consequences of that operation?"
"A. If the question is forever. If it was purely an economic
problem, having nothing to do with race, or opposition to
integration, they could handle that problem the way any community
handles that problem if it is purely an economic decision. But if
it becomes a consideration of race, which creates the economic
difficulties, then it seems to me that this Court, in numerous
decisions, has answered that question. It answered it in
Watson, it answered it in
Brown, and it answered
it in
Green."
"Q. Well, this is in the premise of my question, for you to
prevail here, this racial overtone, I will assume, you must concede
must be present. Now suppose you prevail, and suppose they lose
economically year after year by increasing amounts. My question is,
are they locked in forever?"
"A. If the question is are they locked in forever because of
racial problems which cause a rise in economic difficulties in
operating the pool, my answer is that they would be locked in."
Tr. of Oral Arg. 434.
MR. JUSTICE DOUGLAS, dissenting.
Jackson, Mississippi, closed all the swimming pools owned and
operated by it, following a judgment of the Court of Appeals in
Clark v. Thompson, 313 F.2d 637, which affirmed the
District Court's grant of a declaratory judgment that three Negroes
were entitled to the desegregated use of the city's swimming pools.
206 F.
Supp. 539. No municipal swimming facilities have been opened to
any citizen of either race since that time; and the city apparently
does not intend to reopen the pools on an integrated basis.
That program is not, however, permissible if it denies rights
created or protected by the Constitution.
Buchanan v.
Warley, 245 U. S. 60,
245 U. S. 81. I
think that the plan has that constitutional defect, and that is the
burden of this dissent.
Hunter v. Erickson, 393 U. S. 385,
Reitman v. Mulkey, 387 U. S. 369, and
Griffin v. County School Board, 377 U.
S. 218, do not precisely control the present case. They
are different because there state action perpetuated ongoing
regimes of racial discrimination in which the State was
implicated.
In
Griffin, the State closed public schools in one
county only, not in the others, and meanwhile contributed to the
support of private segregated white schools. 377 U.S. at
377 U. S. 232.
That, of course, was a continuation of segregation in another form.
In
Hunter, a city passed a housing law which provided
that, before an ordinance regulating the sale or lease of realty on
the basis of race could become effective, it had to be approved by
a majority vote. Thus, the protection of minority interests became
much more difficult. [
Footnote 2/1]
We held that a state agency
Page 403 U. S. 232
could not, in its voting scheme, so disadvantage Negro
interests. In
Reitman, the State repealed legislation
prohibiting racial discrimination in housing, thus encouraging
racial discrimination in the housing market. 387 U.S. at
387 U. S.
376.
Whether, in the closing of all municipal swimming pools in
Jackson, Mississippi, any artifices and devices were employed, as
in
Burton v. Wilmington Parking Authority, 365 U.
S. 715, to make the appearance not conform to the
reality is not shown by this record. Under
Burton, if the
State has a continuing connection with a swimming pool, it becomes
a public facility, and the State is under obligation to see that
the operators meet all Fourteenth Amendment responsibilities. 365
U.S. at
365 U. S. 725.
We may not reverse under
Burton, because we do not know
what the relevant facts are.
Closer in point is
Bush v. Orleans Parish School
Board, 187 F. Supp.
42,
aff'd, 365 U. S. 569.
Louisiana, as part of her strategy to avoid a desegregated public
school system, authorized the Governor to close any public school
ordered to be integrated. The three-judge District Court, relying
on
Cooper v. Aaron, 358 U. S. 1,
358 U. S. 17,
held that the Act was unconstitutional, and enjoined the Governor
from enforcing it. The District Court decision was so clearly
correct that we wrote no opinion when we affirmed the three-judge
court. While there were other Louisiana laws also held
unconstitutional as perpetuating a state segregated school system,
the one giving the Governor the right to close any public school
ordered integrated seems indistinguishable from this one.
Page 403 U. S. 233
May a State, in order to avoid integration of the races, abolish
all of its public schools? That would dedicate the State to
backwardness, ignorance, and existence in a new Dark Age. Yet is
there anything in the Constitution that says that a State must have
a public school system? Could a federal court enjoin the
dismantling of a public school system? Could a federal court order
a city to levy the taxes necessary to construct a public school
system? Such supervision over municipal affairs by federal courts
would be a vast undertaking, conceivably encompassing schools,
parks, playgrounds, civic auditoriums, tennis courts, athletic
fields, as well as swimming pools.
My conclusion is that the Ninth Amendment has a bearing on the
present problem. It provides:
"The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people."
Rights not explicitly mentioned in the Constitution have at
times been deemed so elementary to our way of life that they have
been labeled as basic rights. Such is the right to travel from
State to State.
United States v. Guest, 383 U.
S. 745,
383 U. S. 758.
Such is also the right to marry.
Loving v. Virginia,
388 U. S. 1,
388 U. S. 12. The
"rights" retained by the people within the meaning of the Ninth
Amendment may be related to those "rights" which are enumerated in
the Constitution. Thus, the Fourth Amendment speaks of the "right
of the people to be secure in their persons, houses, papers, and
effects," and protects it by well known procedural devices. But we
have held that that enumerated "right" also has other facets
commonly summarized in the concept of privacy.
Griswold v.
Connecticut, 381 U. S. 479.
There is, of course, not a word in the Constitution, unlike many
modern constitutions, concerning the right of
Page 403 U. S. 234
the people to education or to work or to recreation by swimming
or otherwise. Those rights, like the right to pure air and pure
water, may well be rights "retained by the people" under the Ninth
Amendment. May the people vote them down, as well as up?
A State may not, of course, interfere with interstate commerce,
and, to the extent that public services are rendered by interstate
agencies, the State, by reason of the Supremacy Clause, is
powerless to escape. The right to vote is a civil right guaranteed
by the Constitution, as we recently reemphasized in
Oregon v.
Mitchell, 400 U. S. 112. In
Anderson v. Martin, 375 U. S. 399, the
State required designation on the ballots of every candidate's
race. We said:
"In the abstract, Louisiana imposes no restriction upon anyone's
candidacy, nor upon an elector's choice in the casting of his
ballot. But, by placing a racial label on a candidate at the most
crucial stage in the electoral process -- the instant before the
vote is cast -- the State furnishes a vehicle by which racial
prejudice may be so aroused as to operate against one group because
of race and for another. This is true because, by directing the
citizen's attention to the single consideration of race or color,
the State indicates that a candidate's race or color is an
important -- perhaps paramount -- consideration in the citizen's
choice, which may decisively influence the citizen to cast his
ballot along racial lines."
375 U.S. at
375 U. S.
402.
A constitutional right cannot be so burdened. We stated in
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 638,
that:
"One's right to life, liberty, and property . . . and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections."
And we added in
Lucas v. Colorado General Assembly,
377 U. S. 713,
377 U. S.
736-737,
"A citizen's
Page 403 U. S. 235
constitutional rights can hardly be infringed simply because a
majority of the people choose that [they] be."
Thus, the right of privacy, which we honored in
Griswold may not be overturned by a majority vote at the
polls, short of a constitutional amendment.
In determining what municipal services may not be abolished, the
Court of Appeals drew the line between "an essential public
function" and other public functions. Whether state constitutions
draw that line is not our concern. Certainly there are no federal
constitutional provisions which make that distinction.
Closing of the pools probably works a greater hardship on the
poor than on the rich, and it may work greater hardship on poor
Negroes than on poor whites, a matter on which we have no light.
Closing of the pools was at least in part racially motivated. And,
as stated by the dissenters in the Court of Appeals:
"The closing of the City's pools has done more than deprive a
few thousand Negroes of the pleasures of swimming. It has taught
Jackson's Negroes a lesson: in Jackson, the price of protest is
high. Negroes there now know that they risk losing even segregated
public facilities if they dare to protest segregation. Negroes will
now think twice before protesting segregated public parks,
segregated public libraries, or other segregated facilities. They
must first decide whether they wish to risk living without the
facility altogether, and at the same time engendering further
animosity from a white community which has lost its public
facilities also through the Negroes' attempts to desegregate these
facilities."
"The long-range effects are manifold and far-reaching. If the
City's pools may be eliminated from the public domain, parks,
athletic activities, and libraries also may be closed. No one can
say
Page 403 U. S. 236
how many other cities may also close their pools or other public
facilities. The City's action tends to separate the races,
encourage private discrimination, and raise substantial obstacles
for Negroes asserting the rights of national citizenship created by
the Wartime Amendments."
419 F.2d 1222, 1236.
That view has strong footing in our decisions.
"The clear and central purpose of the Fourteenth Amendment was
to eliminate all official state sources of invidious racial
discrimination in the States."
Loving v. Virginia, 388 U.S. at
388 U. S. 10.
Cf. McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 196.
When the effect is "to chill the assertion of constitutional rights
by penalizing those who choose to exercise them" (
United States
v. Jackson, 390 U. S. 570,
390 U. S. 581)
that state action is "patently unconstitutional."
While Chief Justice Marshall intimated in
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 130,
that the motives which dominate or influence legislators in
enacting laws are not fit for judicial inquiry, we do look closely
at the thrust of a law to determine whether, in purpose or effect,
there was an invasion of constitutional rights.
See Epperson v.
Arkansas, 393 U. S. 97,
393 U. S. 109;
Griffin v. County School Board, 377 U.S. at
377 U. S. 231.
A candidate may be defeated because the voters are bigots. A racial
issue may inflame a community causing it to vote a humane measure
down. The federal judiciary cannot become involved in those kinds
of controversies. The question for the federal judiciary is not
what the motive was, but what the consequences are.
In
Reitman, an active housing program had been racially
dominated and then controlled by a state law ending discrimination.
But, in time, the State reversed its policy and lifted the
anti-discrimination controls. Thus, it launched, or at least
tolerated, a regime of racially discriminatory housing.
Page 403 U. S. 237
It is earnestly argued that the same result obtains here because
the regime of desegregated swimming decreed by the District Court
is ended, and is supplanted by state-inspired, state-favored
private swimming pools by clubs and others which perpetuate
segregation.
We are told that the history of this episode shows the
"steel-hard, inflexible, undeviating official policy of
segregation" in Mississippi.
United States v. City of
Jackson, 318 F.2d 1, 5.
I believe that freedom from discrimination based on race, creed,
or color has become, by reason of the Thirteenth, Fourteenth, and
Fifteenth Amendments, one of the "enumerated rights" under the
Ninth Amendment that may not be voted up or voted down.
Much has been written concerning the Ninth Amendment, including
the suggestion that the rights there secured include "rights of
natural endowment." [
Footnote 2/2]
B. Patterson, The Forgotten Ninth Amendment 53 (1955).
Mr. Justice Goldberg, concurring in
Griswold v. Connecticut,
supra, at
381 U. S. 492,
said:
"[T]he Ninth Amendment shows a belief of the Constitution's
authors that fundamental rights exist that are not expressly
enumerated in the first eight amendments and an intent that the
list of rights included there not be deemed exhaustive. [
Footnote 2/3] "
Page 403 U. S. 238
We need not reach that premise in this case. We deal here with
analogies to rights secured by the Bill of Rights or by the
Constitution itself. Franklin, The Ninth Amendment as Civil Law
Method and its Implications for Republican Form of Government, 40
Tul.L.Rev. 487, 490 492 (1966); Redlich, Are There "Certain Rights
. . . Retained by the People"?, 37 N.Y.U.L.Rev. 787, 810-812
(1962); Black, The Unfinished Business of the Warren Court, 46
Wash.L.Rev. 3, 37-45 (1970); Kutner, The Neglected Ninth Amendment:
The "Other Rights" Retained by the People, 51 Marq.L.Rev. 121,
134-137 (1968).
"The Fourteenth Amendment and the two escorting amendments
establish a principle of absolute equality, an equality which is
denied by racial separation or segregation because the separation
in truth consecrates a hierarchy of racial relations, and hence
permits inequality. [
Footnote
2/4]"
The Solicitor General says:
"[T]o the extent that the municipality had voluntarily
undertaken to provide swimming facilities for its citizens, making
it unnecessary for the private sector to develop equally adequate
facilities, the closing of the pools has insured that racial
segregation will be perpetuated. "
Page 403 U. S. 239
Our cases condemn the creation of state laws and regulations
which foster racial discrimination -- segregated schools,
segregated parks, and the like. The present case, to be sure, is
only an analogy. The State enacts no law saying that the races may
not swim together. Yet it eliminates all its swimming pools, so
that the races will not have the opportunity to swim together.
While racially motivated state action is involved, it is of an
entirely negative character. Yet it is in the penumbra [
Footnote 2/5] of the policies of the
Thirteenth, Fourteenth, and Fifteenth Amendments, and, as a matter
of constitutional policy, should be in the category of those
enumerated rights protected by the Ninth Amendment. If not
included, those rights become narrow legalistic concepts which turn
on the formalism of laws, not on their spirit.
I conclude that, though a State may discontinue any of its
municipal services -- such as schools, parks, pools, athletic
fields, and the like -- it may not do so for the purpose of
perpetuating or installing apartheid or because it finds life in a
multi-racial community difficult or unpleasant. If that is its
reason, then abolition of a designated public service becomes a
device for perpetuating a segregated way of life. That a State may
not do.
As MR. JUSTICE BRENNAN said in
Evans v. Abney,
396 U. S. 435,
396 U. S. 453
(dissenting), where a State abandoned a park to avoid
integration:
"I have no doubt that a public park may constitutionally be
closed down because it is too expensive
Page 403 U. S. 240
to run, or has become superfluous, or, for some other reason,
strong or weak, or for no reason at all. But, under the Equal
Protection Clause, a State may not close down a public facility
solely to avoid its duty to desegregate that facility."
Hunter and
Reitman went to the verge of that
problem.
Bush went the whole way. We should reaffirm what
our summary affirmance of
Bush plainly implied.
[
Footnote 2/1]
James v. Valtierra, 402 U. S. 137,
undertook to distinguish
Hunter on the ground that the
California referendum on low-rent housing which submitted the issue
to majority vote was "neutral on its face," and not "aimed at a
racial minority." The regime of
Hunter, therefore, remains
undisturbed. Yet there was no answer to the claim that a referendum
solely for housing for the poor violates the Equal Protection
Clause. However that may be, in the instant case, the target was
not the poor, but a racial minority.
[
Footnote 2/2]
And see Comment, Ninth Amendment Vindication of
Unenumerated Fundamental Rights, 42 Temple L.Q. 46, 53-56 (1968);
Bertelsman, The Ninth Amendment and Due Process of Law -- Toward a
Viable Theory of Unenumerated Rights, 37 U.Cin.L.Rev. 777, 787
et seq. (1968); Forkosch, Does "Secure the Blessings of
Liberty" Mandate Governmental Action?, 1 Ariz. St.L.J. 17, 32
(1970).
[
Footnote 2/3]
"Nor am I turning somersaults with history in arguing that the
Ninth Amendment is relevant in a case dealing with a State's
infringement of a fundamental right. While the Ninth Amendment --
and indeed the entire Bill of Rights -- originally concerned
restrictions upon federal power, the subsequently enacted
Fourteenth Amendment prohibits the States as well from abridging
fundamental personal liberties. And the Ninth Amendment, in
indicating that not all such liberties are specifically mentioned
in the first eight amendments, is surely relevant in showing the
existence of other fundamental personal rights, now protected from
state, as well as federal, infringement. In sum, the Ninth
Amendment simply lends strong support to the view that the
'liberty' protected by the Fifth and Fourteenth Amendments from
infringement by the Federal Government or the States is not
restricted to rights specifically mentioned in the first eight
amendments."
381 U.S. at
381 U. S.
493.
[
Footnote 2/4]
Franklin, The Relation of the Fifth, Ninth and Fourteenth
Amendments to the Third Constitution, 4 How.L.J. 170, 180
(1958).
[
Footnote 2/5]
While the Equal Protection Clause protects individuals against
state action, "the involvement of the State" need not be "either
exclusive or direct."
United States v. Guest, 383 U.
S. 745,
383 U. S.
755.
"In a variety of situations, the Court has found state action of
a nature sufficient to create rights under the Equal Protection
Clause even though the participation of the State was peripheral,
or its action was only one of several co-operative forces leading
to the constitutional violation."
Id. at
383 U. S.
755-756.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE
MARSHALL join, dissenting.
I agree with the majority that the central purpose of the
Fourteenth Amendment is to protect Negroes from invidious
discrimination. Consistent with this view, I had thought official
policies forbidding or discouraging joint use of public facilities
by Negroes and whites were at war with the Equal Protection Clause.
Our cases make it unquestionably clear, as all of us agree, that a
city or State may not enforce such a policy by maintaining
officially separate facilities for the two races. It is also my
view, but apparently not that of the majority, that a State may not
have an official stance against desegregating public facilities and
implement it by closing those facilities in response to a
desegregation order.
Let us assume a city has been maintaining segregated swimming
pools and is ordered to desegregate them. Its express response is
an official resolution declaring desegregation to be contrary to
the city's policy and ordering the facilities closed, rather than
continued in service on a desegregated basis. To me, it is beyond
cavil that, on such facts, the city is adhering to an
unconstitutional policy and is implementing it by abandoning the
facilities. It will not do in such circumstances to say that whites
and Negroes are being treated alike because both are denied use of
public services. The fact is that closing the pools is an
expression of official policy that Negroes
Page 403 U. S. 241
are unfit to associate with whites. Closing pools to prevent
interracial swimming is little different from laws or customs
forbidding Negroes and whites' from eating together or from
cohabiting or intermarrying.
See Adickes v. S. H. Kress &
Co., 398 U. S. 144
(1970);
Loving v. Virginia, 388 U. S.
1 (1967);
McLaughlin v. Florida, 379 U.
S. 184 (1964);
Lombard v. Louisiana,
373 U. S. 267
(1963). The Equal Protection Clause is a hollow promise if it does
not forbid such official denigrations of the race the Fourteenth
Amendment was designed to protect.
The case before us is little, if any, different from the case
just described. Jackson, Mississippi, closed its swimming pools
when a district judge struck down the city's tradition of
segregation in municipal services and made clear his expectation
that public facilities would be integrated. The circumstances
surrounding this action and the absence of other credible reasons
for the closings leave little doubt that shutting down the pools
was nothing more or less than a most effective expression of
official policy that Negroes and whites must not be permitted to
mingle together when using the services provided by the city.
I am quite unpersuaded by the majority's assertion that it is
impermissible to impeach the otherwise valid act of closing
municipal swimming pools by resort to evidence of invidious purpose
or motive. Congress has long provided civil and criminal remedies
for a variety of official and private conduct. In various
situations, these statutes and our interpretations of them provide
that such conduct falls within the federal proscription only upon
proof of forbidden racial motive or animus. An otherwise valid
refusal to contract the sale of real estate falls within the ban of
42 U.S.C. ยง 1982 upon proof that the refusal was racially
motivated.
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968). A restaurant's
Page 403 U. S. 242
refusal to serve a white customer is actionable under 42 U.S.C.
ยง 1983 where the evidence shows that refusal occurred because the
white was accompanied by Negroes and was pursuant to a
state-enforced custom of racial segregation.
Adickes,
supra. Just last week, in
Griffin v. Breckenridge,
ante, p.
403 U. S. 88, we
construed 42 U.S.C. ยง 1985(3) to reach wholly private conspiracies
-- in that case, to commit assault on Negroes -- where sufficient
evidence of "racial . . . animus" or "invidiously discriminatory
motivation" accompanied the conspirators' actions.
Griffin v.
Breckenridge, supra, at
403 U. S. 102.
In rejecting the argument that ยง 1985(3) was subject to an implied
state action limitation, we indicated that racially motivated
conspiracies or activities would be actionable under ยง 1983 if done
under color of law.
Id. at
403 U. S. 98-99.
Official conduct is no more immune to characterization based on its
motivation than is private conduct, and we have so held many times.
The police are vulnerable under ยง 1983 if they subject a person "to
false arrest for vagrancy for the purpose of harassing and
punishing [him] for attempting to eat with black people,"
Adickes, supra, at
398 U. S. 172,
or if they
"intentionally tolerate violence or threats of violence directed
toward those who violated the practice of segregating the races at
restaurants."
Ibid.
In another decision last week, we reversed a three-judge court
ruling in a suit under ยง 1983 that the multi-member apportionment
plan there involved operated to minimize or dilute the voting
strength of Negroes in an identifiable ghetto area. However, in an
opinion joined by four members of the majority in the instant case,
we cautioned that:
"[T]he courts have been vigilant in scrutinizing schemes
allegedly conceived or operated as purposeful devices to further
racial discrimination. . . . But there is no suggestion here that
Marion County's
Page 403 U. S. 243
multi-member district, or similar districts throughout the
State,
were conceived or operated as purposeful devices to
further racial or economic discrimination."
Whitcomb v. Chavis, ante, p.
403 U. S. 124, at
149 (emphasis added).
Further, motivation analysis has assumed great importance in
suits under 42 U.S.C. ยง 1983 as a result of this Court's opinions
in
Younger v. Harris, 401 U. S. 37
(1971), and its companion cases. There, the Court held that, even
though a state criminal prosecution was pending, federal relief
would be appropriate on allegations in a complaint to the effect
that state officials were utilizing state criminal statutes in bad
faith, with no hope of obtaining valid convictions under them, in
an effort to harass individuals in the exercise of their
constitutional rights. Obviously, in order to determine its
jurisdiction in each such case, a federal court must examine and
make a determination of the same kind of official motivation which
the Court today holds unreviewable.
In thus pursuing remedies under the federal civil rights laws,
as petitioners are doing under ยงยง 1981 and 1983 here, Negro
plaintiffs should have every right to prove that the action of the
city officials was motivated by nothing but racial considerations.
In examining their contentions, it will be helpful to recreate the
context in which this case arises.
I
In May, 1954, this Court held that "[s]eparate educational
facilities are inherently unequal."
Brown v. Board of
Education, 347 U. S. 483,
347 U. S. 495.
In a series of opinions following closely in time, the Court
emphasized the universality and permanence of the principle that
segregated public facilities of any kind were no longer permissible
under the Fourteenth Amendment.
Page 403 U. S. 244
Muir v. Louisville Park Theatrical Assn., 347 U.S. 971
(1954), decided one week after
Brown, saw the Court review
a decision of the Court of Appeals for the Sixth Circuit which had
affirmed a district court order holding that Negro plaintiffs were
entitled to the use of public golf courses and a public fishing
lake in Iroquois Park in Louisville, but that the privately owned
theatrical association that leased a city-owned amphitheater in the
same park was not guilty of discrimination proscribed by the
Fourteenth Amendment in refusing to admit Negroes to its operatic
performances. The Court vacated the judgment and remanded "for
consideration in the light of the Segregation Cases decided May 17,
1954 . . . and conditions that now prevail."
Ibid.
[
Footnote 3/1]
At the beginning of the October, 1955, Term, the Court resolved
any possible ambiguity about the action taken in
Muir. In
a pair of summary decisions, the Court made it clear that
state-sanctioned segregation in the operation of public
recreational facilities was prohibited.
Mayor and City Council
of Baltimore v. Dawson, 350 U.S. 877 (1955), was a summary
affirmance of a decision by the Court of Appeals for the Fourth
Circuit that officials of the State and city could not enforce a
policy of racial segregation at public beaches and bathhouses. On
the same day, the Court confirmed that use of a public golf course
could not be denied to any person on account of his race.
Holmes v. City of Atlanta, 350 U.S. 879 (1955).
The lower federal courts played a very important role in this
ongoing process. For example, in June, 1956,
Page 403 U. S. 245
a three-judge district court in Alabama, relying on
Brown,
Dawson, and
Holmes, held that:
"[T]he statutes and ordinances requiring segregation of the
white and colored races on the motor buses of a common carrier of
passengers in the City of Montgomery and its police jurisdiction
violate the due process and equal protection of the law clauses of
the Fourteenth Amendment. . . ."
Browder v. Gayle, 142 F.
Supp. 707, 717 (MD Ala.). Again this Court affirmed summarily,
citing
Brown, Dawson, and
Holmes. 352 U.S. 903
(1956). Some public officials remained unconvinced. In early 1958,
the Court of Appeals for the Fifth Circuit summarily rejected as
without merit an appeal by the New Orleans City Park Improvement
Association from a summary judgment including a permanent
injunction prohibiting the Association, a municipal corporation,
from denying Negroes the use of the facilities of the New Orleans
City Park.
New Orleans City Park Improvement Assn. v.
Detiege, 252 F.2d 122 (CA5 1958). When the Association took a
further appeal to this Court, the judgment was affirmed in a
one-line opinion.
New Orleans City Park Improvement Assn. v.
Detiege, 358 U. S. 54
(1958). Other decisions in this Court and the lower federal courts
demonstrated the pervasive idea that officially segregated public
facilities were not equal. [
Footnote
3/2]
Page 403 U. S. 246
Throughout the same period, this Court and other courts rejected
attempts by various public bodies to evade their clear duty under
Brown and its progeny by employing delaying tactics or
other artifices short of open defiance.
Cooper v. Aaron,
358 U. S. 1 (1958);
Burton v. Wilmington Parking Authority, 365 U.
S. 715 (1961);
Watson v. City of Memphis,
373 U. S. 526
(1963);
Griffin v. County School Board of Prince Edward
County, 377 U. S. 218
(1964). [
Footnote 3/3] Meanwhile,
countless class suits seeking desegregation orders were
successfully prosecuted by Negro plaintiffs in the lower federal
courts. Many public facilities were opened to all citizens,
regardless of race, without direct intervention by this Court.
Several of these local suits are relevant to the present case.
The city of Jackson was one of many places where the consistent
line of decisions following from
Brown had little or no
effect. [
Footnote 3/4] Public
recreational facilities were
Page 403 U. S. 247
not desegregated although it had become clear that such action
was required by the Constitution. As respondents state in their
brief in this case:
"In 1963, the City of Jackson was operating equal but separate
recreational facilities such as parks and golf links, including
swimming pools. A suit was brought in the Southern District of
Mississippi to enjoin the segregated operation of these facilities.
The City of Jackson took the position in that litigation that the
segregation of recreational facilities, if separate but equal
recreational facilities were provided and if citizens voluntarily
used segregated facilities, was constitutional."
Respondents' Brief 2. This was nearly nine years after
Brown, and more than seven years after
Dawson and
Holmes.
The suit respondents refer to was instituted in 1962 as a class
action by three Negro plaintiffs who alleged that some city
facilities -- parks, libraries, zoo, golf courses, playgrounds,
auditoriums, and other recreational complexes -- were closed to
them because of their race. The defendants were Jackson city
officials, including Mayor Allen C. Thompson and Director of Parks
and Recreation George Kurts, both respondents in the present case.
The plaintiffs in that suit were successful. The District Court's
opinion began by stating that Jackson
Page 403 U. S. 248
was a city
"noted for its low crime rate and lack of racial friction except
for the period in 1961, when the self-styled Freedom Riders made
their visits."
Clark v. Thompson, 206 F.
Supp. 539, 541 (SD Miss.1962). It was also stated that Jackson
had racially exclusive neighborhoods, that as this residential
pattern had developed, the city had "duplicated" its recreational
facilities in white and Negro areas, and that members of each race
"have customarily used the recreational facilities located in close
proximity to their homes."
Ibid. The final finding of fact
was that the
"defendants are not enforcing separation of the races in public
recreational facilities in the City of Jackson. The defendants do
encourage voluntary separation of the races."
Ibid. [
Footnote
3/5]
Among the District Court's conclusions of law were the
following: (1) that the suit was not a proper class action, since
the Negro plaintiffs had failed to show that their interests were
not antagonistic to or incompatible with those of the purported
class; [
Footnote 3/6] (2) that the
three original plaintiffs were entitled to an adjudication by
declaratory judgment of "their personal claims of right to
unsegregated use of public recreational facilities," 206
F.Supp.
Page 403 U. S. 249
at 542; (3) that injunctive relief was inappropriate as a matter
of law; [
Footnote 3/7] and (4)
that
"The individual defendants in this case are all outstanding,
high class gentlemen, and, in my opinion, will not violate the
terms of the declaratory judgment issued herein. They know now what
the law is and what their obligations are, and I am definitely of
the opinion that they will conform to the ruling of this Court
without being coerced so to do by an injunction. The City of
Jackson, a municipality, of course, is operated by some of these
high class citizens. I am further of the opinion that, during this
period of turmoil, the time now has arrived when the judiciary
should not issue injunctions perfunctorily, but should place trust
in men of high character that they will obey the mandate of the
Court without an injunction hanging over their heads."
206 F. Supp. at 543.
As the city has stressed in its brief here, it did not appeal
from this judgment, which was entered in May, 1962. The Negro
plaintiffs, however, did appeal, claiming that the relief afforded
was inadequate. The Court of Appeals for the Fifth Circuit affirmed
per curiam, 313 F.2d 637 (CA5 1963). On December 16, 1963, this
Court denied certiorari, 375 U.S. 951.
It must be noted here that none of Jackson's public recreational
facilities was desegregated until after the appellate proceedings
in
Clark v. Thompson were fully concluded. [
Footnote 3/8] This was true despite the
fact that, under this Court's prior decisions, the only possible
result of such review would have been a broadening of the
relief
Page 403 U. S. 250
granted by the District Judge. Moreover, from the time of the
trial court's decision in
Clark v. Thompson, the mayor of
Jackson made public statements, of record in this case, indicating
his dedication to maintaining segregated facilities. On May 24,
1962, nine days after the District Court's decision in
Clark v.
Thompson, the Jackson Daily News quoted Mayor Thompson as
saying:
"'We will do all right this year at the swimming pools . . . ,
but if these agitators keep up their pressure, we would have five
colored swimming pools because we are not going to have any
intermingling.' . . . He said the City now has legislative
authority to sell the pools or close them down if they can't be
sold."
App. 15.
A year passed while the appeals in
Clark v. Thompson
were pending, but the city's official attitude did not change. On
May 24, 1963, the Jackson Daily News reported that "Governor Ross
Barnett today commended Mayor Thompson for his pledge to maintain
Jackson's present separation of the races." App. 15. On the next
day, the same newspaper carried a front page article stating that
"Thompson said neither agitators nor President Kennedy will change
the determination of Jackson to retain segregation." App. 16.
During May and June, 1963, the Negro citizens of Jackson
organized to present their grievances to city officials. On May 27,
a committee representing the Negro community met with the mayor and
two city commissioners. Among the grievances presented was a
specific demand that the city desegregate public facilities,
including the city-operated parks and swimming pools.
On the day following this meeting, the Jackson Daily News quoted
the mayor as saying:
"'In spite of the current agitation, the Commissioners and I
shall continue to plan and seek money
Page 403 U. S. 251
for additional parks for our Negro citizens. Tomorrow we are
discussing with local Negro citizens plans to immediately begin a
new clubhouse and library in the Grove Park area, and other park
and recreational facilities for Negroes throughout the City. We
cannot proceed, however, on the proposed $100,000 expenditure for a
Negro swimming pool in the Grove Park area as long as there is the
threat of racial disturbances.'"
App. 15. On May 30, 1963, the same paper reported that the mayor
had announced that "[p]ublic swimming pools would not be opened on
schedule this year due to some minor water difficulty." App. 5.
The city at this time operated five swimming facilities on a
segregated basis: the Livingston Lake swimming facility, in reality
a lake with beach facilities, at Livingston Park; a swimming pool
in Battlefield Park; a swimming pool and a wading pool in Riverside
Park; a pool that the city leased from the YMCA in Leavell Woods
Park; a swimming pool and a wading pool for Negroes in College
Park. [
Footnote 3/9] In literature
describing its Department of Parks and Recreation, the city
stressed that
"[o]ur $.10 and $.20 charge for swimming . . . [is] the lowest
to be found anywhere in the country. The fees are kept low in order
to serve as many people as possible."
In one of two affidavits that he filed below, Parks Director
Kurts stated that, for the years 1960, 1961, and 1962, the average
annual expense to the city of operating each of the pools in
Battlefield, Riverside, and College Park was $10,000. The average
annual revenue from the pools in Battlefield
Page 403 U. S. 252
and Riverside Parks was $8,000 apiece; the average annual
revenue from the Negro pool in College Park was $2,300. Thus, for
these three facilities, the city was absorbing an annual loss of
approximately $11,700, and was doing so "in order to serve as many
people as possible."
From the time of the announcement of "minor water difficulty" at
the end of May, 1963, none of these swimming facilities has
operated under public aegis. The city canceled its lease on the
Leavell Woods pool, and it has since been operated on a "whites
only" basis by its owner, the YMCA, apparently without city
involvement. [
Footnote 3/10] At
oral argument, counsel for the city informed us that the pool that
was located in the Negro neighborhood -- the College Park pool
--
"was sold by the City to the Y. The YMCA opened it up and the
black people boycotted so it wasn't being used, then the YMCA sold
it to Jackson State College; Jackson State now owns it and operates
it . . . for the students at Jackson State and their guests. . .
."
Tr. of Oral Arg. 31. According to the record below, the
Battlefield Park and Riverside Park pools, both in white
neighborhoods, have remained closed, but have been properly
maintained and
Page 403 U. S. 253
prevented from falling into disrepair by the city, although they
produce no offsetting revenue. The Livingston Lake facility has
apparently remained in its natural state. [
Footnote 3/11]
In August, 1965, petitioners brought the present class action in
the Southern District of Mississippi. They challenged the closing
of the pools and racial segregation in the city jail, seeking both
declaratory and injunctive relief. The case was tried on affidavits
and stipulations and submitted to the District Judge. In addition
to the evidence summarized above, Mayor Thompson filed an affidavit
which stated:
"Realizing that the personal safety of all of the citizens of
the City and the maintenance of law and order would prohibit the
operation of swimming pools on an integrated basis, and realizing
that the said pools could not be operated economically on an
integrated basis, the City made the decision subsequent to the
Clark case to close all pools owned and operated by the
City to members of both races."
App. 21. [
Footnote 3/12] Parks
Director Kurts filed a similar affidavit, averring:
"That, after the decision of the Court in the case of
Clark
v. Thompson, it became apparent that the swimming pools owned
and operated by the City of Jackson could not be operated
peacefully, safely, or economically on an integrated basis, and the
City
Page 403 U. S. 254
decided that the best interest of all citizens required the
closing of all public swimming pools owned and operated by the
City. . . ."
App. 18. [
Footnote 3/13] Based
on these affidavits, the District Judge found as a fact that the
decision to close the pools was made after
Clark v.
Thompson, and that the pools could not be operated safely or
economically on an integrated basis. Accordingly, he held that
petitioners were not entitled to any relief, and dismissed the
complaint. On appeal, a panel of the Court of Appeals for the Fifth
Circuit affirmed.
Palmer v. Thompson, 391 F.2d 324 (1967).
On rehearing en banc, the Court of Appeals, by a seven-to-six vote,
again affirmed dismissal of the complaint. 419 F.2d 1222 (1969).
Both courts below rejected petitioners' argument that, because the
pools were closed to avoid court orders that would require their
desegregation, the city's action was a denial of equal protection.
We granted certiorari to decide that issue, 397 U.S. 1035 (1970),
and, for the reasons that follow, I would reverse.
II
There is no dispute that the closing of the pools constituted
state action. Similarly, there can be no disagreement that the
desegregation ruling in
Clark v. Thompson was the event
that precipitated the city's decision to cease furnishing public
swimming facilities to its citizens. [
Footnote 3/14] Although the secondary evidence of what
the city officials thought and believed about the wisdom of
desegregation is relevant, it is not necessary to rely on it to
establish the causal link between
Clark v. Thompson and
the closings. The officials' sworn affidavits,
Page 403 U. S. 255
accepted by the courts below, stated that loss of revenue and
danger to the citizens would obviously result from operating the
pools on an integrated basis. Desegregation, and desegregation
alone, was the catalyst that would produce these undesirable
consequences. Implicit in this official judgment were assumptions
that the citizens of Jackson were of such a mind that they would no
longer pay the 10- or 20-cent fee imposed by the city if their
swimming and wading had to be done with their neighbors of another
race, that some citizens would direct violence against their
neighbors for using pools previously closed to them, and that the
anticipated violence would not be controllable by the authorities.
Stated more simply, although the city officials knew what the
Constitution required after
Clark v. Thompson became
final, their judgment was that compliance with that mandate, at
least with respect to swimming pools, would be intolerable to
Jackson's citizens.
Predictions such as this have been presented here before. One
year after the District Court's opinion in
Clark v.
Thompson, this Court reviewed a case in which municipal
officials had made the same assumption and had acted upon it. In
Memphis, Tennessee,
Brown and the cases discussed above
had little effect until May, 1960, when Negro residents sued for
declaratory and injunctive relief directing immediate desegregation
of the municipal parks and other city-owned and city-operated
recreational facilities. The city agreed that the Fourteenth
Amendment required all facilities to be opened to citizens
regardless of race and that the majority of city-run facilities
remained segregated at the time of suit, six years after
Brown. It was nevertheless asserted that desegregation was
under way, and that further delay in achieving full desegregation
was the wise and proper course. Both of the lower courts denied
plaintiffs relief, the net result being an order directing the city
to submit
Page 403 U. S. 256
within six months a plan providing for gradual desegregation of
all the city's recreational facilities.
This Court unanimously rejected further delay in integrating
these facilities.
Watson v. City of Memphis, 373 U.
S. 526 (1963). It did so although the city asserted its
good faith attempt to comply with the Constitution and its honest
belief that gradual desegregation, facility by facility, was
necessary to prevent interracial strife. The Court's
"compelling answer to this contention [was] that constitutional
rights may not be denied simply because of hostility to their
assertion or exercise."
Id. at
373 U. S. 535.
See also Buchanan v. Warley, 245 U. S.
60,
245 U. S. 81
(1917);
Brown v. Board of Education, 349 U.
S. 294,
349 U. S. 300
(1955);
Cooper v. Aaron, 358 U.S. at
358 U. S. 16;
Wright v. Georgia, 373 U. S. 284,
373 U. S.
291-293 (1963). The record in the case was reviewed in
some detail. I quote at length because of the pertinence of the
Court's observations.
"Beyond this, however, neither the asserted fears of violence
and tumult nor the asserted inability to preserve the peace was
demonstrated at trial to be anything more than personal
speculations or vague disquietudes of city officials. There is no
indication that there had been any violence or meaningful
disturbances when other recreational facilities had been
desegregated. In fact, the only evidence in the record was that
such prior transitions had been peaceful. The Chairman of the
Memphis Park Commission indicated that the city had 'been
singularly blessed by the absence of turmoil up to this time on
this race question;' notwithstanding the prior desegregation of
numerous recreational facilities, the same witness could point as
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
Page 403 U. S. 257
which he had received. The Memphis Chief of Police mentioned
without further description some 'troubles' at the time bus service
was desegregated, and referred to threatened violence in connection
with a 'sit-in' demonstration at a local store, but, beyond making
general predictions, gave no concrete indication of any inability
of authorities to maintain the peace. The only violence referred to
at any park or recreational facility occurred in segregated parks
and was not the product of attempts at desegregation. Moreover,
there was no factual evidence to support the bare testimonial
speculations that authorities would be unable to cope successfully
with any problems which in fact, might arise or to meet the need
for additional protection should the occasion demand."
"The existing and commendable goodwill between the races in
Memphis, to which both the District Court and some of the witnesses
at trial made express and emphatic reference as in some
inexplicable fashion supporting the need for further delay, can
best be preserved and extended by the observance and protection,
not the denial, of the basic constitutional rights here asserted.
The best guarantee of civil peace is adherence to, and respect for,
the law."
"The other justifications for delay urged by the city or relied
upon by the courts below are no more substantial, either legally or
practically. It was, for example, asserted that immediate
desegregation of playgrounds and parks would deprive a number of
children -- both Negro and white -- of recreational facilities;
this contention was apparently based on the premise that a number
of such facilities would have to be closed because of the
inadequacy of the 'present' park budget to provide additional
'supervision' assumed to be necessary to operate unsegregated
Page 403 U. S. 258
playgrounds. As already noted, however, there is no warrant in
this record for assuming that such added supervision would, in
fact, be required, much less that police and recreation personnel
would be unavailable to meet such needs if they should arise. More
significantly, however, it is obvious that vindication of conceded
constitutional rights cannot be made dependent upon any theory that
it is less expensive to deny than to afford them. We will not
assume that the citizens of Memphis accept the questionable premise
implicit in this argument or that either the resources of the city
are inadequate, or its government unresponsive, to the needs of all
of its citizens."
373 U.S. at
373 U. S.
536-538 (footnotes omitted).
So it is in this case. The record before us does not include
live testimony. It was stipulated by the parties after the District
Judge had entered his order denying relief that the "parties had an
opportunity to offer any and all evidence desired." The official
affidavits filed were even less compelling than the evidence
presented by city officials in
Watson. The conclusion of
city officials that integrated pools would not be "economical" was
no more than "personal speculation." The city made no showing that
integrated operation would increase the annual loss of at least
$11,700 -- a loss that, prior to 1963, the city purposely accepted
for the benefit of its citizens as long as segregated facilities
could be maintained. The prediction that the pools could not be
operated safely if they were desegregated was nothing more than a
"vague disquietude." In
Watson, the record reflected that
the parks commissioner had received a number of anonymous phone
calls and letters presumably threatening violence, and that the
chief of police had testified about troubles in connection with a
sit-in demonstration and desegregation of the city buses. Here,
Mayor Thompson's
Page 403 U. S. 259
affidavit, filed in 1965, refers only to a time in 1961 "when
racial tensions were inflamed by the visits of the freedom riders
to Jackson." Both the Thompson and Kurts affidavits assert that all
other public recreational facilities in Jackson were desegregated
following
Clark v. Thompson. Neither affidavit contains
the slightest hint -- in general or specific terms -- that this
transition caused disorder or violence. [
Footnote 3/15] As in
Watson, there is no
factual evidence that city law enforcement authorities would be
unable to cope with any disturbances that might arise; unlike
Watson, however, there is in this record not even a "bare
testimonial speculation" that this would be the case.
With all due respect, I am quite unable to agree with the
majority's assertion,
ante at
403 U. S. 225,
that there is "substantial evidence in the record" to support the
conclusion of the lower courts that the pools could not be operated
safely and economically on an integrated basis. Officials may take
effective action to control violence or to prevent it when it is
reasonably imminent. But the anticipation of violence in this case
rested only on unsupported assertion, to which the permanent
closing of swimming pools was a wholly unjustified response. The
city seems to fear that, even if some or all of the pools suffered
a sharp decline in revenues from the levels pertaining before 1963
because Negro and white neighbors refused to use integrated
facilities, the city could never close the pools for that reason. I
need only observe
Page 403 U. S. 260
that such a case, if documented by objective record evidence,
would present different considerations. As Judge Wisdom stated
below,
"We do not say that a city may never abandon a previously
rendered municipal service. If the facts show that the city has
acted in good faith for economic or other nonracial reasons, the
action would have no overtones of racial degradation, and would
therefore not offend the Constitution."
419 F.2d at 1237 n. 16 (dissenting opinion). It is enough for
the present case to reemphasize that the only evidence in this
record is the conclusions of the officials themselves, unsupported
by even a scintilla of added proof.
Watson counsels us to reject the vague speculation that
the citizens of Jackson will not obey the law, as well as the
correlative assumption that they would prefer no public pools to
pools open to all residents who come in peace. The argument based
on economy is no more than a claim that a major portion of the
city's population will not observe constitutional norms. The
argument based on potential violence, as counsel for the city
indicated at oral argument, unfortunately reflects the views of a
few immoderates who purport to speak for the white population of
the city of Jackson. Tr. of Oral Arg. 36. Perhaps it could have
been presented, but there is no evidence now before us that there
exists any group among the citizens of Jackson that would employ
lawless violence to prevent use of swimming pools by Negroes and
whites together. In my view, the Fourteenth Amendment does not
permit any official act -- whether in the form of open refusal to
desegregate facilities that continue to operate, decisions to delay
complete desegregation, or closure of facilities -- to be
predicated on so weak a reed. Public officials sworn to uphold the
Constitution may not avoid a constitutional duty by bowing to the
hypothetical effects of private racial prejudice that they assume
to be both widely and deeply
Page 403 U. S. 261
held. Surely the promise of the Fourteenth Amendment demands
more than nihilistic surrender. As Mr. Justice Frankfurter observed
more than 12 years go:
"The process of ending unconstitutional exclusion of pupils from
the common school system -- 'common' meaning shared alike -- solely
because of color is no doubt not an easy, overnight task in a few
States where a drastic alteration in the ways of communities is
involved. Deep emotions have, no doubt, been stirred. They will not
be calmed by letting violence loose violence and defiance employed
and encouraged by those upon whom the duty of law observance should
have the strongest claim -- nor by submitting to it under whatever
guise employed. Only the constructive use of time will achieve what
an advanced civilization demands and the Constitution
confirms."
Cooper v. Aaron, 358 U.S. at
358 U. S. 25
(concurring opinion).
III
I thus arrive at the question of whether closing public
facilities to citizens of both races, whatever the reasons for such
action, is a special kind of state action somehow insulated from
scrutiny under the Fourteenth Amendment. As the opinions of the
majority and MR. JUSTICE DOUGLAS show, most of our prior decisions,
because of their facts, do not deal with this precise issue.
Bush v. Orleans Parish School Board, 187 F. Supp.
42 (ED La.1960),
aff'd, 365 U.
S. 569 (1961), is relevant. In that case, a three-judge
court declared unconstitutional a number of Louisiana statutes
designed to avoid desegregation of the public schools in that
State. Among the laws stricken down was a statute giving the
Governor the right to close any school ordered to integrate, a
statute giving the Governor the right to close all schools if one
was integrated, and a statute giving the Governor
Page 403 U. S. 262
the right to close any school threatened with violence or
disorder. We affirmed the District Court summarily and without
dissent.
Ibid. [
Footnote
3/16]
See also Hall v. St. Helena
Page 403 U. S. 263
Parish School Board, 197 F.
Supp. 649 (ED La.1961),
aff'd, 368 U.
S. 515 (1962).
Griffin v. County School Board of Prince Edward County,
377 U. S. 218
(1964), is perhaps distinguishable,
Page 403 U. S. 264
but only if one ignores its basic rationale and the purpose and
direction of this Court's decisions since
Brown. First,
and most importantly,
Griffin stands for the proposition
that the reasons underlying certain official acts are highly
relevant in assessing the constitutional validity of those acts. We
stated:
"But the record in the present case could not be clearer that
Prince Edward's public schools were closed and private schools
operated in their place with state and county assistance, for one
reason, and one reason only: to ensure, through measures taken by
the county and the State, that white and colored children in Prince
Edward County would not, under any circumstances, go to the same
school. Whatever nonracial grounds might support a State's allowing
a county to abandon public schools, the object must be a
constitutional one, and grounds of race and opposition to
desegregation do not qualify as constitutional."
377 U.S. at
377 U. S. 231.
See also Gomillion v. Lightfoot, 364 U.
S. 339,
364 U. S.
346-348 (1960);
Board of Education v. Allen,
392 U. S. 236,
392 U. S. 243
(1968);
Epperson v. Arkansas, 393 U. S.
97,
393 U. S. 109
(1968); Ely, Legislative and Administrative Motivation in
Constitutional Law, 79 Yale L.J. 1205 (1970); Note, Legislative
Purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev.
1887 (1970). Second,
Page 403 U. S. 265
Griffin contains much that is relevant to the kind of
decree that would be appropriate if the decision below is reversed.
See 377 U.S. at
377 U. S.
232-234.
The majority, conceding the relevance of the quoted passage from
Griffin, states that the "focus in [both
Griffin
and
Gomillion] was on the actual effect of the enactments,
not upon the motivation which led the States to behave as they
did." Respondents agree, and argue further that the present record
shows only that Jackson has closed facilities that were once open
on a segregated basis, and that the closing operates equally on
Negroes and whites alike.
But if effect was all that the Court considered relevant in
Griffin, there was no need to mention underlying purpose
and to stress the delay that took place in Virginia in implementing
Brown. [
Footnote 3/17] More
importantly,
Griffin was only one case in a series
stressing that the Fourteenth Amendment rights
"declared by this Court in the
Brown case can neither
be nullified openly and directly by state legislators or state
executive or judicial officers, nor nullified indirectly by them
through evasive schemes for segregation, whether attempted
'ingeniously or ingenuously.'
Smith v. Texas, 311 U. S.
128,
311 U. S. 132."
Cooper v. Aaron, supra, at
358 U. S. 17. It
seems to me neither wise nor warranted to limit this principle in a
case where the record is as clear as is the one presently before
us.
State action predicated solely on opposition to a lawful court
order to desegregate is a denial of equal protection of the laws.
As Judge Wisdom said in dissent below, the argument that the
closing of the pools operated equally on Negroes and whites "is a
tired contention, one that has been overworked in civil rights
cases." 419 F.2d at 1232 (dissenting opinion). It was made and
rejected in
Griffin. See, e.g., Brief of
Respondent Board of Supervisors
Page 403 U. S. 266
of Prince Edward County in
Griffin 57-84. [
Footnote 3/18] It was advanced and
rejected in different contexts in
Anderson v. Martin,
375 U. S. 399
(194) (designation of race on ballots), and
Loving v.
Virginia, 388 U. S. 1 (1967)
(miscegenation law). The same argument was rejected in
Hunter
v. Erickson, 393 U. S. 385,
393 U. S. 391
(1969), where we stated that,
"although the law, on its face, treats Negro and white, Jew and
gentile in an identical manner, the reality is that the law's
impact falls on the minority. The majority needs no protection
against discrimination, and, if it did, a referendum might be
bothersome, but no more than that."
Here, too, the reality is that the impact of the city's act
falls on the minority. Quite apart from the question whether the
white citizens of Jackson have a better chance to swim than do
their Negro neighbors absent city pools, there are deep and
troubling effects on the racial minority that should give us all
pause. As stated at the outset of this opinion, by closing the
pools solely because of the order to desegregate, the city is
expressing its official view that Negroes are so inferior that they
are unfit to share with whites this particular type of public
facility, though pools were long a feature of the city's segregated
recreation program. But such an official position may not be
enforced by designating certain pools for use by whites and others
for the use of Negroes. Closing the pools without a colorable
nondiscriminatory reason was every bit as much an official
endorsement of
Page 403 U. S. 267
the notion that Negroes are not equal to whites as was the use
of state National Guard troops in 1957 to bar the entry of nine
Negro students into Little Rock's Central High School, a public
facility that was ordered desegregated in the wake of
Brown. See Cooper v. Aaron, 358 U.S. at
358 U. S. 11.
Both types of state actions reflect implementation of the same
official conclusion: Negroes cannot be permitted to associate with
whites. But that notion had begun to break down as this Court
struggled with the "separate but equal" doctrine,
see
Brown, 347 U.S. at
347 U. S.
491-494, [
Footnote
3/19] and I had thought it was emphatically laid to rest in
Brown itself, where we quoted with approval the finding of
a district judge that:
"'Segregation of white and colored children in public schools
has a detrimental effect upon the colored children. The impact is
greater when it has the sanction of the law, for the policy of
separating the races is usually interpreted as denoting the
inferiority of the negro group. A sense of inferiority affects the
motivation of a child to learn. Segregation with the sanction of
law, therefore, has a tendency to [retard] the educational and
mental development of the negro children, and to deprive them of
some of the benefits they would receive in a racial[ly] integrated
school system.'"
347 U.S. at
347 U. S.
494.
Page 403 U. S. 268
These considerations were not abandoned as
Brown was
applied in other contexts, and it is untenable to suggest that the
closing of the swimming pools -- a pronouncement that Negroes are
somehow unfit to swim with whites -- operates equally on Negroes
and whites. Whites feel nothing but disappointment and perhaps
anger at the loss of the facilities. Negroes feel that and more.
They are stigmatized by official implementation of a policy that
the Fourteenth Amendment condemns as illegal. And the closed pools
stand as mute reminders to the community of the official view of
Negro inferiority. Moreover, this Court has carefully guarded the
rights of Negroes to attack state-sanctioned segregation through
the peaceful channels of the judicial process. This Court has
recently discussed and analyzed various provisions of the
Reconstruction civil rights statutes, and there is little need here
to repeat anything more than the most recent observation that
"[t]he approach of this Court . . . has been to
accord [these
statutes] a sweep as broad as [their] language.'" Griffin v.
Breckenridge, ante, p. 403 U. S. 88, at
403 U. S. 97.
[Footnote 3/20] Of course, 42
U.S.C. ยง 1981 specifically declares that "[a]ll persons . . . shall
have the same right . . . to sue . . . as is enjoyed by white
citizens. . . ." Congress has supplemented this early legislation,
and this Court has commented on the importance of private
plaintiffs in enforcing civil rights statutes. Newman v. Piggie
Park Enterprises, Inc., 390 U. S. 400,
390 U. S.
401-402 (1968); see also NAACP v. Alabama,
357 U. S. 449
(1958). The Civil Rights Act of 1964 provided an additional avenue
for a potential private plaintiff to follow. Provisions of that Act
authorize the Attorney General to bring a civil suit in the name of
the United States whenever he receives a signed complaint in
writing
Page 403 U. S. 269
from an individual that such person is being denied equal
protection of the laws by being denied equal utilization of any
public facilities such as those involved in the present case. 42
U.S.C. ยง 2000b(a). The Attorney General may bring such a suit if he
believes the complaint to be meritorious and certifies that the
signer of the complaint is unable, in his judgment, to initiate and
maintain an appropriate private suit.
Ibid. The statute
further defines when the Attorney General may deem a complainant
unable to initiate or maintain a private action, specifying
inability to bear the expense of private litigation and the
possibility that
"the institution of such litigation would jeopardize the
personal safety, employment, or economic standing of such person or
persons, their families, or their property."
42 U.S.C. ยง 2000b(b).
It is evident that closing a public facility after a court has
ordered its desegregation has an unfortunate impact on the minority
considering initiation of further suits or filing complaints with
the Attorney General. As Judge Wisdom said,
"[T]he price of protest is high. Negroes . . . now know that
they risk losing even segregated public facilities if they dare to
protest . . . segregated public parks, segregated public libraries,
or other segregated facilities. They must first decide whether they
wish to risk living without the facility altogether. . . ."
419 F.2d at 1236 (dissenting opinion). It is difficult to
measure the extent of this impact, but it is surely present, and
surely we should not ignore it. The action of the city in this case
interposes a major deterrent to seeking judicial or executive help
in eliminating racial restrictions on the use of public facilities.
[
Footnote 3/21] As such, it is
illegal under the
Page 403 U. S. 270
Fourteenth Amendment.
See Shapiro v. Thompson,
394 U. S. 618,
394 U. S. 631
(1969);
United States v. Jackson, 390 U.
S. 570,
390 U. S. 581
(1968);
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S.
486-487 (1965);
see also Oregon v. Mitchell,
400 U. S. 112,
400 U. S. 292
(1970) (STEWART, J., concurring and dissenting).
IV
From what has been stated above, it is clear that the city's
action in closing the pools because of opposition to the decision
in
Clark v. Thompson was
"an exercise of the state police power which trenches upon the
constitutionally protected freedom from invidious official
discrimination based on race."
McLaughlin v.
Florida, 379
Page 403 U. S. 271
U.S. 184,
379 U. S. 196
(1964). As such, it
"bears a heavy burden of justification . . . , and will be
upheld only if it is necessary, and not merely rationally related,
to the accomplishment of a permissible state policy."
Ibid.; see also Loving v. Virginia, 388 U. S.
1 (1967). The city has only opposition to desegregation
to offer as a justification for closing the pools, and this
opposition operates both to demean the Negroes of Jackson and to
deter them from exercising their constitutional and statutory
rights. The record is clear that these public facilities had been
maintained, and would have been maintained but for one event: a
court order to open them to all citizens without regard to race. I
would reverse the judgment of the Court of Appeals and remand the
cause for further proceedings.
[
Footnote 3/1]
See Burton v. Wilmington Parking Authority,
365 U. S. 715
(1961) (segregated restaurant operated under lease in municipal
facility).
[
Footnote 3/2]
See, e.g., Boynton v. Virginia, 364 U.
S. 454 (1960) (application of Interstate Commerce Act);
Burton, supra, 403
U.S. 217fn3/1|>n. 1;
Turner v. City of Memphis,
369 U. S. 350
(1962) (public restaurant in municipal airport);
Johnson v.
Virginia, 373 U. S. 61 (1963)
(courtrooms);
Brown v. Louisiana, 383 U.
S. 131,
383 U. S. 139
(1966) (libraries);
City of St. Petersburg v. Alsup, 238
F.2d 830 (CA5 1956) (beach and swimming pool);
Department of
Conservation & Development v. Tate, 231 F.2d 615 (CA4),
cert. denied, 352 U.S. 838 (1956) (state park);
Willie
v. Harris County, 202 F.
Supp. 549 (SD Tex.1962) (county park);
Shuttlesworth v.
Gaylord, 202 F. Supp.
59 (ND Ala.1961),
aff'd sub nom. Manes v.
Shuttlesworth, 310 F.2d 303 (CA5 1962) (parks, tennis courts,
swimming pools, zoo, golf courses, baseball parks, museum,
auditorium);
Moorhead v. City of Ft.
Lauderdale, 152 F.
Supp. 131 (SD Fla.),
aff'd, 248 F.2d 544 (CA5 1957)
(golf course);
Ward v. City of Miami, 151 F.
Supp. 593 (SD Fla.1957) (golf course);
Holley v. City of
Portsmouth, 150 F. Supp.
6 (ED Va.1957) (golf course);
Fayson v.
Beard, 134 F.
Supp. 379 (ED Tex.1955) (city parks).
[
Footnote 3/3]
See also Green v. County School Board of New Kent
County, 391 U. S. 430
(1968).
[
Footnote 3/4]
See Thomas v. Mississippi, 380 U.
S. 524 (1965);
NAACP v. Thompson, 357 F.2d 831
(CA5 1966);
Bailey v. Patterson, 199 F.
Supp. 595 (SD Miss.1961),
vacated, 369 U. S.
31 (1962);
United States v. City of
Jackson, 206 F. Supp.
45 (SD Miss.1962),
rev'd, 318 F.2d 1, 5-6 (CA5 1963)
(common carrier terminals), where the Court of Appeals stated:
"We again take judicial notice that the State of Mississippi has
a steel-hard, inflexible, undeviating official policy of
segregation. The policy is stated in its laws. It is rooted in
custom. The segregation signs at the terminals in Jackson carry out
that policy. The Jackson police add muscle, bone, and sinew to the
signs."
(Footnotes omitted.)
See also Singleton v. Jackson Municipal Separate School
Dist., 348 F.2d 729 (CA5 1965);
Singleton v. Jackson
Municipal Separate School Dist., 355 F.2d 865 (CA5 1966);
Singleton v. Jackson Municipal Separate School Dist., 419
F.2d 1211 (CA5 1969),
rev'd in part sub nom. Carter v. West
Feliciana Parish School Board, 396 U.
S. 290 (1970);
Singleton v. Jackson Municipal
Separate School Dist., 426 F.2d 1364 (CA5), modified, 430 F.2d 368
(CA5 1970); Singleton v. Jackson Municipal Separate School
Dist., 432 F.2d 927 (CA5 1970).
[
Footnote 3/5]
In an affidavit filed August 18, 1965, in the District Court in
the present case, Mayor Thompson stated,
"I believe that the welfare of both races would have best been
served if [the custom that members of each race would use the
recreational facilities near their homes] had continued."
[
Footnote 3/6]
But see Brown v. Board of Education, 347 U.
S. 483,
347 U. S. 495
(1954);
Dawson v. Mayor and City Council of Baltimore, 220
F.2d 386 (CA4),
aff'd, 350 U.S. 877 (1955);
Holmes v.
City of Atlanta, 223 F.2d 93, 94-95 (CA5),
rev'd, 350
U.S. 879 (1955);
Browder v. Gayle, 142 F.
Supp. 707, 714 (MD Ala.),
aff'd, 352 U.S. 903 (1956);
New Orleans City Park Improvement Assn. v. Detiege, 252
F.2d 122, 123 (CA5),
aff'd, 358 U. S.
54 (1958);
see also Carter v. Jury Comm'n of Greene
County, 396 U. S. 320,
396 U. S.
329-330 (1970).
[
Footnote 3/7]
But see cases cited
403
U.S. 217fn3/6|>n. 6,
supra.
[
Footnote 3/8]
See Respondents' Brief 3; Affidavit of Allen C.
Thompson, App. 21; Affidavit of George T. Kurts, App. 18.
[
Footnote 3/9]
At the time
Clark v. Thompson was decided, the
population of Jackson consisted of approximately 100,000 whites and
50,000 Negroes. Despite this 2:1 ratio in population, there were
four swimming facilities for whites and only one for Negroes.
[
Footnote 3/10]
I agree fully with the majority that, if a city or State becomes
involved in any way in the operation of facilities on a segregated
basis by private parties, the Fourteenth Amendment is violated.
See Burton v. Wilmington Parking Authority, supra,
403
U.S. 217fn3/1|>n. 1;
Hampton v. City of
Jacksonville, 304 F.2d 320 (CA5),
cert. denied sub nom.
Ghioto v. Hampton, 371 U.S. 911 (1962);
Smith v. Young
Men's Christian Assn. of Montgomery, 316 F.
Supp. 899 (MD Ala.1970) (city agreement with YMCA to coordinate
city and YMCA recreational activities to eliminate duplication of
services had as its primary purpose and effect encouragement and
assistance of YMCA in maintaining segregated recreational
facilities and programs);
Chinn v. Canton, Civ. No. 3764
(SD Miss., Nov. 18, 1965) (unreported) (town leased municipal pool
to private all-white association; pool ordered desegregated).
[
Footnote 3/11]
During the proceedings in this case, it was developed that the
benches in the Livingston Park Zoo were removed in 1961, and that
the public rest rooms in the Municipal Court Building were closed
at some point in time.
See Palmer v. Thompson, 419 F.2d
1222, 1231 (CA5 1969) (dissenting opinion); affidavit of Allen C.
Thompson, App. 21.
[
Footnote 3/12]
The Mayor's affidavit makes no mention of "minor water
difficulty."
[
Footnote 3/13]
The Parks Director's affidavit makes no mention of "minor water
difficulty."
[
Footnote 3/14]
At oral argument, counsel for the city so conceded. Tr. of Oral
Arg. 229.
[
Footnote 3/15]
In its brief, the city argues:
"This Court will take judicial knowledge of the fact that there
still exists a serious danger of violent clashes between young
people of different racial groups, whether stemming from acts of or
promoted by one group or the other."
Respondents' Brief 10. But this is, as noted in the text,
contrary to the record developed in the courts below. Moreover, at
oral argument, counsel for the respondents stated that, to his
knowledge, there has been no interracial violence in Jackson since
the 1961 Freedom Rider incidents.
See Tr. of Oral Arg.
36.
[
Footnote 3/16]
I cannot agree with the majority's attempt to discount the
significance of
Bush. First, the action taken in
Bush in no sense depended on our conclusion in
Brown that the provision of public education was an
especially important state function. Had that been the case, and
had recreational facilities somehow been considered less essential,
the Court should have accepted the argument made by some States
that
Brown not be extended to recreational facilities.
This we did not do.
See Dawson, supra, and
Holmes,
supra. Similarly, if such a distinction was at all tenable,
the extension of the "all deliberate speed" approach to
desegregating public facilities might have been appropriate. But
this argument was also emphatically rejected.
See Watson,
supra, at
373 U. S.
529-530. When a public agency furnishes a service --
regardless of whether or not it is an "essential" one -- it must
act in a nondiscriminatory manner with regard to that service.
Second, even accepting the majority's characterization of public
schools as "important," there is much in our previous decisions to
contradict its implication that providing swimming pools and other
public recreational facilities is not a significant state function.
In
Evans v. Newton, 382 U. S. 296,
382 U. S. 302
(1966), the Court stated:
"A park . . . is more like a fire department or police
department that traditionally serves the community. Mass recreation
through the use of parks is plainly in the public domain,
Watson v. Memphis, 373 U. S. 526; and state courts
that aid private parties to perform that public function on a
segregated basis implicate the State in conduct proscribed by the
Fourteenth Amendment."
See also Evans v. Abney, 396 U.
S. 435,
396 U. S.
443-444,
396 U. S. 445
(1970), where MR. JUSTICE BLACK, writing for the Court, stated:
"When a city park is destroyed because the Constitution requires
it to be integrated, there is reason for everyone to be
disheartened. We agree with petitioners that, in such a case, it is
not enough to find that the state court's result was reached
through the application of established principles of state law. No
state law or act can prevail in the face of contrary federal law,
and the federal courts must search out the fact and truth of any
proceeding or transaction to determine if the Constitution has been
violated."
"
* * * *"
"A second argument for petitioners stresses the similarities
between this case and the case in which a city holds an absolute
fee simple title to a public park and then closes that park of its
own accord solely to avoid the effect of a prior court order
directing that the park be integrated as the Fourteenth Amendment
commands. Yet, assuming
arguendo that the closing of the
park would in those circumstances violate the Equal Protection
Clause, that case would be clearly distinguishable from the case at
bar because there, it is the State, and not a private party, which
is injecting the racially discriminatory motivation. In the case at
bar, there is not the slightest indication that any of the Georgia
judges involved were motivated by racial animus or discriminatory
intent of any sort in construing and enforcing Senator Bacon's
will."
This was the inquiry made in
Bush, and it led to
striking down the statutes in question. We affirmed that ruling,
and the record here is no less clear. And as the majority concedes,
ante at
403 U. S. 221
n. 6, surely it is not irrelevant in considering the context in
which Jackson's pools were closed, that a statute of the State of
Mississippi, in effect since 1956, provides:
"That the entire executive branch of the government of the State
of Mississippi, and of its subdivisions, and all persons
responsible thereto, including the governor, the lieutenant
governor, the heads of state departments, sheriffs, boards of
supervisors, constables, mayors, boards of aldermen and other
governing officials of municipalities by whatever name known . . .
whether specifically named herein or not . . . shall give full
force and effect in the performance of their official and political
duties, to the Resolution of Interposition . . . and all of said
members of the executive branch be and they are hereby . . .
directed and required to prohibit, by any lawful, peaceful and
constitutional means, the implementation of or the compliance with
the Integration Decisions of the United States Supreme Court of May
17, 1954 (347 US 483), . . . and of May 31 1955 (349 US 294), . . .
and to prohibit by any lawful, peaceful, and constitutional means
the causing of a mixing or integration of the white and Negro races
in public schools, public parks, public waiting rooms, public
places of amusement, recreation or assembly in this state, by any
branch of the federal government, any person employed by the
federal government, any commission, board or agency of the federal
government, or any subdivision of the federal government, and to
prohibit, by any lawful, peaceful and constitutional means, the
implementation of any orders, rules or regulations of any board,
commission or agency of the federal government, based on the
supposed authority of said Integration Decisions, to cause a mixing
or integration of the white and Negro races in public schools,
public parks, public waiting rooms, public places of amusement,
recreation or assembly in this state."
Miss.Code Ann. ยง 4065.3 (1957);
see United States v. City of
Jackson, 318 F.2d 1, 5-6 (CA5 1963) (judicial notice taken of
this statute).
[
Footnote 3/17]
See also Green,
supra, 403
U.S. 217fn3/3|>n. 3.
[
Footnote 3/18]
In their briefs in
Griffin, No. 592, O.T. 1963, the
respondents relied on previous lower court cases that have
permitted closing public recreational facilities after decrees had
been entered ordering that they be desegregated.
See Brief
of Respondent Board of Supervisors in
Griffin 65-66.
See also Brief of Respondents State Board of Education and
Superintendent of Public Instruction in
Griffin 53-63.
Griffin rejected the relevance of these decisions;
however, the present respondents rely on them here and the majority
implicitly embraces them.
[
Footnote 3/19]
The Court in
Brown noted that, in
Sweatt v.
Painter, 339 U. S. 629
(1950), the Court had held that a segregated law school for Negroes
could not provide them equal educational opportunities, relying in
large part on "those qualities which are incapable of objective
measurement but which make for greatness in a law school." 339 U.S.
at
339 U. S. 634.
The Court in
Brown also relied on
McLaurin v. Oklahoma
State Regents, 339 U. S. 637
(1950), in which it was required that a Negro student in a white
graduate school be treated like all other students in order to
avoid impairing "his ability to study, to engage in discussions and
exchange views with other students, and, in general, to learn his
profession." 339 U.S. at
339 U. S.
641.
[
Footnote 3/20]
Quoting
United States v. Price, 383 U.
S. 787,
383 U. S. 801
(1966);
see also Adickes S. H. Kress & Co.,
398 U. S. 144
(1970);
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968).
[
Footnote 3/21]
Nor should we be lulled by the suggestion that all of Jackson's
public facilities have been integrated. As the majority correctly
states,
"[i]f the time ever comes when Jackson attempts to run
segregated public pools either directly or indirectly, or
participates in a subterfuge whereby pools are nominally run by
'private parties' but actually by the city, relief will be
available in the federal courts."
This is but a partial summary of the litigation that may lie
ahead as some cities attempt to avoid the requirement that public
facilities be operated on an integrated basis. It demonstrates that
it is surely wrong to suggest that, simply because a city presently
operates no segregated facilities, there is nothing that will need
to be done by way of litigation to enforce the Fourteenth Amendment
in the future. Assume, for instance, that it can be shown that a
city is providing some form of covert assistance to a "private"
organization such as the YMCA to run swimming pools on a segregated
basis, one for the whites and one for the Negroes; another example
would be a "desegregated" public school offering segregated
classes, perhaps including physical education and swimming.
Although we are all agreed that such conduct is illegal, the
majority apparently believes that allowing a city to close public
facilities solely because of opposition to desegregation would
exert no effect whatsoever on the deliberations of Negro plaintiffs
considering a court challenge to these newer, more subtle
discriminatory practices.
See 403
U.S. 217fn3/10|>n. 10,
supra. To me, it is clear
that the majority's edict places a powerful weapon at the disposal
of public officials hostile to fulfilling the promise of the
Fourteenth Amendment. Threat of suit by Negroes in either case
hypothesized above is likely to be countered by a threat, and
perhaps action, to close the covertly run segregated pools in
schools or outside.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE WHITE join, dissenting.
While I am in complete agreement with the opinions of JUSTICES
DOUGLAS and WHITE, I am obliged to add a few words of my own.
First, the majority and concurring opinions' reliance on the
"facially equal effect upon all citizens" of the decision to
discontinue all public pools is misplaced. As long ago as 1948, in
Shelley v. Kraemer, 334 U. S. 1,
334 U. S. 22,
this Court held:
"The rights created by the first section of the Fourteenth
Amendment are, by its terms, guaranteed to the individual. The
rights established are personal rights. It is, therefore, no answer
to these petitioners to say that the courts may also be induced to
deny white persons rights of ownership and occupancy on grounds of
race or color. Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities. "
Page 403 U. S. 272
In short, when the officials of Jackson, Mississippi, in the
circumstances of this case detailed by MR. JUSTICE WHITE, denied a
single Negro child the opportunity to go swimming simply because he
is a Negro, rights guaranteed to that child by the Fourteenth
Amendment were lost. The fact that the color of his skin is used to
prevent others from swimming in public pools is irrelevant.
Second, since
Brown v. Board of Education, 347 U.
S. 483 (1954), public schools and public recreational
facilities such as swimming pools have received identical
Fourteenth Amendment protection. Indeed, exactly one week after
Brown I, this Court remanded three cases in the same per
curiam:
Florida ex rel. Hawkins v. Board of Control of Florida;
Tureaud v. Board of Supervisors; and
Muir v. Louisville
Park Theatrical Assn., 347 U.S. 971. The first two involved
university education, and the latter involved recreational
facilities.
Even before
Brown II, 349 U. S. 294
(1955), it was recognized as obvious that
"racial segregation in recreational activities can no longer be
sustained as a proper exercise of the police power of the State,
for if that power cannot be invoked to sustain racial segregation
in the schools, where attendance is compulsory and racial friction
may be apprehended from the enforced commingling of the races, it
cannot be sustained with respect to public beach and bathhouse
facilities, the use of which is entirely optional."
Dawson v. Mayor and City Council of Baltimore, 220 F.2d
386, 387 (CA4),
aff'd per curiam, 350 U.S. 877 (1955).
See also Department of Conservation & Development v.
Tate, 231 F.2d 615 (CA4),
cert. denied, 352 U.S. 838
(1956).
By effectively removing publicly owned swimming pools from the
protection of the Fourteenth Amendment -- at least if the pools are
outside school buildings -- the majority and concurring opinions
turn the clock back 17 years. After losing a hard-fought legal
battle to
Page 403 U. S. 273
maintain segregation in public facilities, the Jackson,
Mississippi, authorities now seek to pick and choose* which of the
existing facilities will be kept open. Their choice is rationalized
on the basis of economic need, and is even more transparent than
putting the matter to a referendum vote.
Finally, I cannot conceive why the writers of the concurring
opinions believe that the city is "locked in," and must operate the
pools no matter what the economic consequences. Certainly I am not
bound by any admission of an attorney at oral argument as to his
version of the law. Equity courts have always had continuing
supervisory powers over their decrees, and if a proper basis for
closing the facilities -- other than a conclusory statement about
the projected human, and thus economic, consequences of
desegregation -- could be shown, swimming pools, as I imagine
schools, or even golf courses, could be closed.
I dissent.
* The economic loss incident to the operation of public swimming
pools could not be much more than that incident to maintaining
public golf courses that charge green fees of $0.75 to $1.25,
admittedly the lowest in the country.