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

419 F.2d 1222

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 7, 1970
• Docket: 23841
• Status: Published

Opinions

RIVES, Circuit Judge:

The briefs and arguments on rehearing en banc have been confined to the first point discussed in the original opinion; that is, to whether the City of Jackson denied the equal protection of the laws to Negroes by the closing of all of its public swimming pools. The findings of fact by the district court on this point were set forth in the original opinion, and, for convenience, are again quoted:

“The City of Jacks on closed all swimming pools owned and operated by it in 1963, following the entry of a declaratory judgment by this Court in the case of Clark v. Thompson, 206 F.Supp. 539, affirmed 313 F.2d 637, cert. den. 376 U.S. 951, 84 S.Ct. 440, 11 L.Ed.2d 312. No municipal swimming facilities have been opened to any citizen of either race since said time, and the City Council does not intend to reopen or operate any of these swimming facilities on an integrated basis. The personal safety of the citizens of the City and the maintenance of law and order would be endangered by the operation of public swimming pools on an integrated basis. These pools could not be economically operated in that manner. Although closed, the swimming facilities owned by the City are being properly maintained. In addition to closing the swimming facilities owned by it, the City cancelled its lease covering the Leavell Woods swimming pool in 1964.”

On this rehearing we would observe the admonition of the Supreme Court that “generalizations do not decide concrete cases. ‘Only by sifting facts and weighing circumstances’ (Burton v. Wilmington Parking Authority, supra [365 U.S. 715], at 722 [81 S.Ct. 856, 6 L.Ed.2d 45]) can we determine whether the reach of the Fourteenth Amendment extends to a particular case.” Evans v. Newton, 1966, 382 U.S. 296, 299, 300, 86 S.Ct. 486, 488, 15 L.Ed.2d 373.¹ So doing, we search for further facts and circumstances.

First, it should be noted that the district court’s findings were entered on the hearing of the plaintiffs’ application for a temporary injunction. Thereafter the parties stipulated:

“ * * * that this action be and the same is hereby submitted to the Court for final decision on the merits on the complaint, answer, and affidavits heretofore filed and submitted by the parties, and on the full and complete hearing heretofore afforded the parties, at which all parties had an opportunity to offer any and all evidence desired, and on this Court’s letter opinion filed herein dated September 14, 1965, and on this Court’s separate findings of fact and conclusions of law filed herein by this Court in connection with this Court's order overruling plaintiffs’ application for a temporary injunction.

“IT IS FURTHER STIPULATED and agreed that a final judgment may be entered herein on the foregoing without further hearing and without the offering of any further or additional evidence herein.”

The district court then, upon the same findings of fact, entered final judgment that the plaintiffs are not entitled to relief. We note particularly that all parties agreed that they have “had an opportunity to offer any and all evidence desired.”

In the case of Clark v. Thompson, cited by the district court, a declaratory judgment had been entered, “That each of the three plaintiffs has a right to unsegregated use of the public recreational facilities of the City of Jackson.” After that decision had been affirmed per curiam by this Court and certiorari denied by the Supreme Court, the zoo, parks, and all recreational facilities except the pools were opened to the use of whites and blacks alike. The pools were closed. The only evidence as to the reasons and motives for such closing is contained in affidavits of the Mayor and of the Director of the Department of Parks and Recreation. We quote from the Mayor’s affidavit:

“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. The City thereby decided not to offer that type of recreational facility to any of its citizens, and it has not done so and does not intend to reopen any of said pools.

“All other recreational facilities have been completely desegregated and have been made available to all citizens of the City regardless of race.”

The Director’s affidavit was to the same effect and was supplemented by a second affidavit stating the average annual operating expense and revenue of the pools for the years 1960, 1961 and 1962, from which it appears that there was an average annual loss of $11,700.00. The affidavit concluded: “that the City of Jackson would suffer a severe financial loss if it attempted to operate said pools, or any of them, on an integrated basis.”

True, the City decided to close the pools rather than to operate them on an integrated basis. There was, however, no evidence that it reached that decision in an effort to impede further efforts to integrate. Nor did the court find any intent to chill or slow down the integration of other recreational facilities. To the contrary, as the Mayor’s affidavit states, those were completely desegregated and made available to all citizens of the City regardless of race. The pools were closed because they could not be operated safely or economically on an integrated basis. Is that a denial of equal protection of the laws?

If so, then the plaintiffs must prevail, for “ * * law and order are not * * * to be preserved by depriving the Negro children of their constitutional rights.”² Desirable as is economy in government and important as is the preservation of the public peace, “this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.” ³ For that principle to be applicable, however, it must be held that the result of closing the pools because they cannot be operated safely or economically on an integrated basis deprives Negroes of the equal protection of the law. In our opinion that simply is not true.

The operation of swimming pools is not an essential public function in the same sense as the conduct of elections,⁴ the governing of a company town,⁵ the operation or provision for the operation of a public utility,⁶ or the operation and financing of public schools.⁷

Under the impetus of the declaratory judgment in Clark v. Thompson, supra,, the City was making the transition in the operation of its recreational facilities from a segregated to an integrated basis. It had considerable discretion as to how that transition could best be accomplished. Local authorities have the duty of easing the transition from an unconstitutional mode of operation to one that is constitutionally permissible. That has been held true as to the reapportionment of the state legislative bodies ⁸ and as to the desegregation of the public schools.⁹ The Constitution does, however, require that the end result be constitutionally permissible.

The equal protection clause is negative in form, but there is no denying that positive action is often required to provide “equal protection.” That is frequently true as to essential public functions. Other functions permit more latitude of action. As to swimming pools, which a city may furnish or not at its discretion, it seems to us that a city meets the test of the equal protection clause when it decides not to offer that type of recreational facility to any of its citizens on the ground that to do so would result in an unsafe and uneconomical operation.

There is, of course, no constitutional right to have access to a public swimming pool. No one would question that proposition in circumstances having no racial overtones; as, for example, where all citizens of a municipality are of the same race, the closing of all municipal pools would embody no unconstitutional action or result.¹⁰

Attempts to analogize this case to Reitman v. Mulkey, 1967, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 and Griffin v. County School Board of Prince Edward County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256, offer little assistance. In Reitman, the Court held unconstitutional a recently adopted state constitutional amendment which declared that no agency of the state could interfere with the right of a property vendor or lessor to sell, rent or lease to anyone he chose. Considering the “purpose, scope, and operative effect” of the amendment, the Court stated that by, in effect, nullifying existing fair-housing laws, the state had adopted an affirmative policy of encouraging private discrimination. Significant state involvement in the private housing market, by prior regulation of fair-housing practices, supported the Court’s conclusion. This case offers no circumstances involving the regulation of private activity, the abandonment of which can be transmuted into discriminatory state action. It is significant further that the subject facility here, public in nature, has ceased to exist, whereas the private facilities in Reitman, by their very identity and nature, of necessity continued to exist. The possibility that private pool owners in Jackson may operate segregated pools henceforth does not indicate any such state involvement in the past, present or future as could possibly require the application of the Reitman principles here.

In Griffin, the Court held as a violation of the equal protection clause the closing of all of the public schools of Prince Edward County, Virginia. The Court predicated its decision on two factors. Noting that none of the other counties in Virginia had closed their schools,¹¹ the Court pointed out that the state and county were supporting private, segregated schools with public funds, to the effect that, excluding one temporary expedient, “Prince Edward County school children, if they go to school in their own county, must go to racially segregated schools which, although designated as private, are beneficiaries of county and state support.” 377 U.S. at 230-231, 84 S.Ct. at 1233. Pretermitting the question of swimming facilities available in other parts of Mississippi, on which there is no evidence, we see no involvement here of public funds applied to maintain any private swimming facilities.

The plaintiffs rely also on Evans v. Newton, 1966, 382 U.S. 296, 86 S.Ct. 486, but we do not think that case analogous. There the Court found that-the public character of a purportedly private park required the park to be treated “as a public institution subject to the command of the Fourteenth Amendment.” 382 U.S. at 302, 86 S.Ct. at 490. “We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.” 382 U.S. at 301, 86 S.Ct. at 489. In the case at bar, of course, there may well be inferred a “tradition of municipal control,” but there the analogy must end. The city swimming pools in Jackson completely ceased to operate, whereas the park in Evans v. Newton continued to operate, with the benefit of continued “municipal maintenance and concern.” 382 U.S. at 301, 86 S.Ct. 486.

Appellants have urged a theory other than those' suggested explicitly by Reit-man, Griffin and Evans. We understood them to argue in terms of a protected right to be a free and equal citizen. We understood counsel in oral argument, as well as by written brief, to state that the issue here is whether the Constitution forbids the City of Jackson from withdrawing a badge of equality. The badge of equality, presumably, was, the ability to swim in an integrated municipal swimming pool — the ability to enjoy, in an integrated fashion, recreational facilities operated by a municipality for its citizens. It cannot be disputed that were the badge of equality, here the ability to swim in an unsegregated pool, to be replaced by a badge implying inequality — segregated pools, the municipality’s action could not be allowed. However, where the facilities around which revolve the status of equality are removed from the use and enjoyment of the entire community, we see no withdrawal of any badge of equality.

Plaintiffs extend their argument, however, urging that white people in general are more affluent and thus have greater access to private swimming facilities¹² Therein, it is said, lies a fatal aspect of the alleged removal of the badge of equality — plaintiffs, and the class they represent, will continue to suffer unequal treatment' as a result of municipal action. In this context, the argument carries little legal significance. The equal protection clause does not promise or guarantee economic or financial equality. In applying the requirements of the equal protection clause, this Court cannot require a city to operate a public swimming pool solely because the city’s ceasing to do so forecloses the enjoyment by financially less fortunate citizens of recreational facilities available on a completely private basis to the more affluent.

Motive behind a municipal or a legislative action may be examined where the action potentially interferes with or embodies a denial of constitutionally protected rights. See, e. g., Griffin v. School Board of Prince Edward County, supra, and Gomillion v. Lightfoot, supra, n. 10. Griffin, supra, 377 U.S. at 231, 84 S.Ct. 1226, at 1233, uses the expression that, “Whatever nonraeial 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.” That expression must not be lifted out of context. Read in connection with the attached footnote, the preceding part of the paragraph, and the paragraph which follows, it is clear that the Court was speaking of the kind of abandonment of public schools which would operate to continue racial segregation. We do not read this statement to prohibit the City from taking race into consideration if not for an invidious or discriminatory purpose. The consideration of racial factors has been endorsed in cases of national defense,¹³ the operation of the public schools,¹⁴ and the selection of jurors.¹⁵ In dismissing this complaint, after considering the affidavits and testimony, the district court found that the City officials acted in the interest of preventing violence and preserving economic soundness to the City’s operations. Even though such motive obviously stemmed from racial considerations, we know of no prohibition to bar the City from taking such factors into account and being guided by conclusions resulting from their consideration.

Motivation has been pointed out here as a positive indication of municipal policy. It has been suggested that the City has, in effect, adopted an official position that it would prefer to operate no pools rather than operate unsegregated pools. Without commenting on the soundness of the argument, we recognize that in the face of the substantial and legitimate objects which motivated the City’s closing, to wit, the preservation of order and maintenance of economy in municipal activity, no such municipal policy can be inferred from the closing.

We agree with the district court that plaintiffs were not denied the equal protection of the laws by the closing of these swimming pools.

The judgment is

Affirmed.

JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, THORNBERRY, GOLDBERG, and SIMPSON, Judges, dissent, reserving the right to file a dissenting opinion.

GEWIN, COLEMAN, AINSWORTH, GODBOLD and DYER, Judges, concur.

BELL, Circuit Judge, specially concurring, with whom Circuit Judges RIVES, GEWIN, COLEMAN, AINS-WORTH, GODBOLD and DYER join.

The footnote at the beginning of the majority opinion shows that Judge Clayton, now deceased, had concurred on February 5, 1968. Now almost two years later, the dissenting opinion has been filed. The pools in question here were closed in 1963. The suit which forms the subject matter of this appeal was filed in 1965. There was a prompt hearing in the district court and the judgment appealed from was rendered in 1965. The original panel decision affirming the denial of relief by the district court was rendered on August 29, 1967. Palmer v. Thompson, 5 Cir., 1967, 391 F.2d 324. This is not to attribute the long delay to the parties; it is court produced. In any event, one must wonder what has happened to the pools in the long interim? Are they still in existence? If so, what condition are they in ?

The final footnote¹ of the dissenting opinion shows that the differences between the majority and the dissenters are largely factual. The majority opinion had emphasized that “The only evidence as to the reasons and motives for such closing is contained in affidavits of the Mayor and of the Director of the Department of Parks and Recreation.” [Majority typed opinion, p. 1225]. The majority opinion also noted particularly that “all parties agreed that they had 'had an opportunity to offer any and all evidence desired.’” [p. 1225] With deference, it would appear that the dissenting opinion, in making the finding that the City of Jackson acted in bad faith, simply departs from the record.² There is no record basis for such a finding.

Whether to operate swimming pools, racial discrimination aside, is a matter for the City of Jackson. We can easily surmise, indeed it may not be disputed, that the closings here were racially motivated. Mere racial motivation, however, is not proof of a racially discriminatory purpose in the closing. The presence or absence of such a purpose was and is the real issue. Courts, including federal courts, must travel on proof and there was a failure of proof in this ease on the part of plaintiffs. We cannot assume racial discrimination simply from the fact of the closings. Constitutional principles, as important as they are, must nevertheless rest on facts. It may be that on a full hearing a factual base could be developed for the constitutional principles announced by the dissenting opinion. The case is here, however, on affidavits and the necessary factual basis is absent. 1, therefore, concur.

WISDOM, Circuit Judge, dissenting, joined by JOHN R. BROWN, Chief Judge, TUTTLE, THORNBERRY, GOLDBERG and SIMPSON, Circuit Judges.

1 . To like effect, see Reitman v. Mulkey, 1967, 387 U.S. 369, 378, 87 S.Ct. 1627, 18 L.Ed.2d 830.

2 . Cooper v. Aaron, 1958, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5, 19.

3 . Buchanan v. Warley, 1917, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149.

4 . Nixon v. Condon, 1932, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984; Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Terry v. Adams, 1953, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152.

5 . Marsh v. Alabama, 1946, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265.

6 . Public Utilities Com’n of District of Columbia v. Poliak, 1952, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 724, 81 S.Ct. 856; Boman v. Birmingham Transit Co., 5 Cir. 1960, 280 F.2d 531; Baldwin v. Morgan, 5 Cir. 1961, 287 F.2d 750, 755.

7 . Brown v. Board of Education, 1954, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873; Guillory v. Administrators of Tulane University, E.D.La.1962, 203 F. Supp. 855, 859, 863; Hobson v. Hansen, D.D.C.1967, 269 F.Supp. 401.

8 . Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.

9 . Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686; Shuttlesworth v. Birmingham Board of Education, NJD. Ala.1958, 162 F.Supp. 372, 379, 381, aff’d, 358 U.S. 101, 79 S.Ct. 221, 3 L. Ed.2d 145.

10 . Arguments related to a due process or impairment of contract theory were foreclosed to plaintiffs by such cases as Hunter v. Pittsburgh, 1907, 207 U.S. 161, 177, 178, 28 S.Ct. 40, 52 L.Ed. 151. See in this regard, Gomillion v. Lightfoot, 1960, 364 U.S. 339, 342-343, 81 S.Ct. 125, 5 L.Ed.2d 110.

11 . On this point, Mr. Justice Black observed that “the Equal Protection Clause relates to equal protection of the laws ‘between persons as such rather than between areas’,” 377 U.S. at 230, 84 S.Ct. at 1233, but that Virginia law treated “the school children of Prince Edward [County] differently from the way it treats the school children of all other Virginia counties.” Id.

12 . One pool formerly leased by the City has subsequently been operated by the local Y.M.C.A. on a white-only basis. There is no evidence however, of any public involvement in the operation of that pool. See, e. g., Evans v. Newton, 1966, 382 U.S. 299, 302, 86 S.Ct. 486, citing Terry v. Adams, 1953, 345 U.S. 461, 73 S.Ct. 809; Public Utilities Com’n of District of Columbia v. Pollak, 1952, 343 U.S. 451, 72 S.Ct. 813; Marsh v. Alabama, 1946, 326 U.S. 501, 66 S.Ct. 276.

13 . Hirabayashi v. United States, 1943, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774.

14 . Shuttlesworth v. Birmingham Board of Education, supra, n. 9; see also Darby v. Daniel, S.D.Miss.1958, 168 F.Supp. 170, 186.

15 . Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1, 25.

1 . “16 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.”

2 . Judge Eives wishes it noted that the City of Montgomery parks, contrary to footnote 14 of the dissenting opinion, are „ open and have been since 1965. This fact was called to the attention of the court by Judge Eives prior to the filing of the dissenting opinion.