Amicus Curiae Brief — Evans v. Abney

Jn the Supreme Court of the United States

OcToBER TERM, 1969

No. 60

REVEREND E. S. EVANS, ET AL., PETITIONERS

Vv.

Guyton G. ABNEY, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

The case is fully stated in the brief filed on behalf

of the petitioners and we do not recapitulate the facts

here. We submit this short memorandum to focus on

particular arguments and to express the interest of

the United States.

The government participated in this Court when the

case was here before as Evans vy. Newton, No. 61,

October Term, 1965, 382 U.S. 296. As it happens, the

United States has a special connection with Bacons-

field through substantial federal aid granted for the

improvement of the facility some years ago and as-

surances then received that the public character of

the park would not be changed. It is, moreover, a

(1)

LIME ALLIES LOD ADD NLL TDL el LEME ai he AE UG IONE. BE he 8 See be ee De can, ABD Mg ee Be a

matter of concern that all the residents of a munici-

pality have been deprived of an important public

facility on account of race. Then, as now, however,

‘there was more at stake than non-discriminatory en-

joyment of a large recreational park in Macon,

Georgia.

As the case returns, it involves potentially far.

reaching questions relating to the enforcement of

racially restrictive stipulations in grants establish.

ing charitable trusts. The United States speaks to

those issues because of the continuing national con-

cern to eradicate race discrimination in our public life,

ARGUMENT

The ultimate question in this case is whether a

large recreational park which this Court has held

subject to the constitutional rule of nondiscrimina-

tion shall be closed and the property returned to

private hands rather than being opened up to the

Negro citizens of the area. The Georgia courts have

so decreed, declining to disregard the now unenforee-

able racially restrictive provision of the will which

established the park half a century ago. Those who

support the judgment below—including the adminis-

trators of the park, the trustees of the property, and

the heirs of the testator, with no opposition from the

municipality which would lose an important recrea-

tional facility—argue that this decision ends the mat-

ter, insisting that there is no federal constitutional

question involved. We disagree, sharing the view of

the petitioners that the Fourteenth Amendment stands

in the way of this result.

3

1. At the outset, we confront the claim that the

ease involves nothing more than the construction of a

will and an application of the local law of charitable

trusts and therefore presents no federal question

whatever. The answer, we suggest, is that given by

this Court when immunity from scrutiny was asserted

with respect to a discriminatory exercise of the gen-

erally absolute power to redefine municipal bound-

aries: insulation from federal judicial review “is not

carried Over when state power is used as an instru-

ment for circumventing a federally protected right.”

Gomillion v. Lightfoot, 364 U.S. 339, 347. The tradi-

tionally local setting does not oust the constitutional

inquiry when the charge is, as here, that State action

threatens to deny important public benefits on the

ground of race.

What is more, the present case does not intrude

far into the traditional domain of private choice. No

one here is remotely suggesting review of the motives—

even racial bias—which govern the decisions of testators

in writing or rewriting wills or establishing trusts. Nor,

for that matter, do the present arguments call into

question the power of any private individual to revoke

agrant, terminate a trust, or close an established facility

over which he has retained control—or to abandon a

husiness—rather than comply with a federal constitu-

tional or statutory requirement of non-discrimination.

We deal only with affirmative State action with-

drawing a public facility to avoid a declared obliga-

tion to cease discrimination on the basis of race.

And, finally, the case does not involve any real issue

of construing a testator’s actual intent. Although Sen-

4

ator Bacon made clear that he shared the prevailing

prejudice of his time and place against the “mixing”

of the races “in their social relations,” then thought

to include the use of recreational facilities (cf. Civj]

Rights Cases, 109 U.S, 3, 22, 24), he did not express

himself on the question whether the racial restriction

in his grant, if unenforceable, should defeat his in-

tention to establish a publie park. There is no way

of knowing what his choice would have been had he

known the present alternatives when he wrote his

will. Still less is there any basis for saying that he

would wish Baconsfield closed altogether after half

a century because the law now requires that Negroes

also be admitted. It is obvious the Senator never ad-

verted to the eventuality that his “perpetual” grant

should be withdrawn from the publie and ‘given over

to his heirs. Indeed, it is doubtful whether any right

of reversion was meant to be attached to his gift to

the municipality.

The fact of the matter is that the decision to prefer

closure to non-discrimination is not attributable to

Senator Bacon, but to the State of Georgia, acting

through its courts, at the prompting of the administra-

tors of the park (who may, in that capacity, be deemed

public officers, since they are administering a public

facility). The reversion of the Baconsfield property to

private hands did not occur automatically, by opera-

tion of law: the active participation of an agency of

the State necessarily intervened before that result

could be accomplished. Nor was the decree a mere

formality, inexorably predetermined by events. There

were many alternatives, one of which had to be se-

Yr

5

jected. Our submission is that Georgia contravened

the Fourteenth Amendment by making a discrimina-

tory choice.

2. What were the options? In the first place, the

restrictive provision might have been treated as not

written, because contrary to overriding public policy

embodied in the supreme law of the land. Cf. Hurd

y. Hodge, 334 U.S. 24, 34-36. In the absence of any indi-

cation that a comparable facility was then available to

the Negro residents of Macon, it is doubtful that Sen-

ator Bacon’s attempt to exclude them totally from a

public park satisfied even the “separate but equal” doc-

trine of Plessy v. Ferguson, 163 U.S. 537, prevailing in

1911 when the will was written. And it is at least argu-

able that the intervening decision in Buchanan v.

Warley, 245 U.S. 60, outlawed racial restrictions of

this kind before the bequest of the park property to the

public was executed in 1920. But even if it was only

later that it became constitutionally unenforceable, the

Georgia courts might have struck the clause prospec-

tively, thus avoiding giving any effect to an offensive

stipulation. Cf. Barrows v. Jackson, 346 U.S. 249, 254.

Another alternative was to decline reversion on the

ground that the park had been irrevocably dedicated

to the public. As we have noted, Senator Bacon’s will

did not provide for contingent reversion to his heirs:

on the contrary, the instrument required that “all

right, title and interest” in the property, expressly

including ‘‘all remainders and reversions,” be vested

in the municipality, for the “perpetual and unending”

| ps ate.

LS ei Say om

6

benefit of the public, and, specifically, to be “forever

used and enjoyed as a park and pleasure ground,”

“under no circumstances”’ to be “sold or alienated or

disposed of, or at any time for any reason devoted

to any other purpose or use” (A. 19; see also, the

last sentence of Item 3rd of the Codicil, at A. 30),

Both the deed from the executors to the City exe-

cuted upon delivery of the property in 1920 (A. 353;

see also A. 405-409) and later representations made

to the United States (A. 440-441, 448, 451) indicate an

indefeasible title in the municipality. So, also, the

actual use of the park by the public for haif a century

argued against implying a requirement of reversion,

See Ga. Code § 85-410.

Of course, if the municipality had been found to

hold an irrevocable title to the property, the decree

below could not have been entered. The suit of the

heirs, lacking any legal interest, would have been

dismissed. The City itself presumably could not close

the park merely to avoid desegregation. Cf. Griffin Vv.

School Board, 377 U.S. 218. And, at all events, the

city was not praying for such a result: indeed, the

State Attorney General, representing the public bene-

ficiaries, was, at least formally, urging continuance of

the park (see A. 502, 509, 512, 515).

Finally, the most obvious solution was to apply the

cy pres principle to continue Baconsfield as a public

park, albeit desegregated, on the ground that this

would be carrying out the dominant purpose of the

charitable trust. See Ga. Code § 108-202. Surely, it

would have been natural to view the establishment of

a public recreational facility as the main object of

a?

I

7

the trust and to find that the constitutionality required

admission of Negroes—which did not oust the original

class of beneficiaries—would not defeat that goal.

A charitable court might indulge the supposition that

Senator Bacon himself would amend his grant to re-

move the exclusionary clause if he were alive in the

changed circumstances of today. But, however that

may be, it was certainly within the normal boundaries

of the cy pres doctrine to treat as incidental, and not

of the essence, the racial stipulation attached to the

trust. Indeed, it is difficult to understand how the

courts below could find that exclusion of Negroes,

rather than continuation of the park as a publie fa-

cility, was the fundamental purpose of the grant.

In our view, the availability of the several less

drastic options, each apparently consistent with local

law, invalidates the choice made. That is true, we

believe, even if each of the alternatives was equally

permissible as a matter of State law. Whatever the

proper limits of the principle that the Constitution is

not violated by neutral State action unavoidably sup-

porting a private discriminatory decision, but see

Shelley v. Kraemer, 334 U.S. 1, the claim of neutrality

will not avail when, in light of other possible solu-

tions, the means selected needlessly aids diserimina-

tion. Cf. Reitman v. Mulkey, 387 U.S. 369. As a

matter of fact, however, it seems plain that the

courts below were not confronted with an evenly bal-

anced series of options; everything favored a resolu-

tion that would permit continuation of the park. In

the circumstances, we are inevitably led to the conclu-

sion that in preferring the last resort of reversion the

8

Georgia courts were applying a special rule which

accords critical weight to racial restrictions. It is of

course immaterial whether the rule was independently

fashioned by the courts or merely reflects the public

policy of the State. In either case, impermissible

governmental action is present: the attempt to escape

official responsibility by invoking Senator Bacon’s

supposed preference cannot succeed. Cf. Burton vy.

Wilmington Parking Authority, 365 U.S. 715, 725.

3. It only remains to respond briefly to the sug-

gestion that the decree below cannot offend the Con-

stitution because the petitioners and the class they

represent have no ‘‘federal right” to enjoy Bacons-

field Park and thus have not been legally injured by

the action which closes it. There are several answers.

To be sure, the Fourteenth Amendment does not

grant petitioners a right, s¢mpliciter, to enjoy the

Baconsfield property. But it does assure that they

shall not be excluded from the benefits of a public

facility on the ground of race. And that is precisely

what is threatened here: the method is a total closure

of the park, but the purpose is racial, and the effect,

so far as Negroes are concerned, is the same as if

whites remained free to enjoy the park. It does not

alleviate the practical injury to the class that others

also are adversely affected by the discriminatorily

motivated action. ‘* Equal protection of the laws is not

achieved through indiscriminate imposition of in-

equalities.’’ Shelley v. Kraemer, supra, 334 U.S. at 22.

It is, moreover, plain that the disadvantaged Negro

community of Macon will suffer unequally by the

ee --

EeE—V7"7_—OoO~OH—

withdrawal of Baconsfield to private lands. Cf. Grif-

fin v. School Board, supra.

There is another aspect to the decision below. The

fact is that Negroes are to be deprived of the park

solely because they insist on exercising their declared

right to share it so long as it remains open to the

public. That is more than imposing an impermissible

penalty on the assertion of a constitutional right,

cf. Shapiro v. Thompson, 394 U.S. 618, 631; the con-

sequence is so drastic as wholly to discourage the

bootless effort in future. Cf. Barrows v. Jackson,

supra. And there is of course a corresponding en-

couragement to resist voluntary acquiescence in non-

discrimination. That, too, is an involvement forbidden

to State officers by the Fourteenth Amendment. Cf.

| Reitman v. Mulkey, supra; Anderson v. Martin, 375

U.S. 399; N.A.A.C.P. v. Alabama, 357 U.S. 449, 463.

Finally, and perhaps most important, the decision

below injures the Negro citizens of Macon in the same

fundamental sense as all officially supported racial

discrimination. Here, as in Strauder v. West Virginia,

100 U.S. 303, 308, the published official action directed

at Negroes as a race ‘‘is practically a brand upon

them, affixed by the law, an assertion of their in-

feriority, and a stimulant to that race prejudice which

is an impediment to securing to individuals of the

race that equal justice which the law aims to secure

to all others.” This alone condemns the action of the

State courts, regardless of whether petitioners can

show any more tangible loss. Cf. Brown v. Board of

| Education, 347 U.S. 483, 493-495. As we view it, the

| decision strains to reach the extreme result of reversion

and thereby announces an official view that the

10

Negro’s presence in the park would be so obnoxious

that it is preferable to close the facility altogether.

That, we submit, is a plain denial of that “equal

protection of the laws’’ which the Fourteenth Amend-

ment was framed to assure.

CONCLUSION

For the reasons stated, the judgment below should

be reversed.

Respectfully submitted.

Erwin N. Griswop,

Solicitor General.

JERRIS LEONARD,

Assistant Attorney General.

Louis F. CLatporne,

Deputy Solicitor General.

NOVEMBER 1969.