Opposition Brief — Palmer v. Thompson

—_

—

APR 7 1970

JOHN F. DAVIS, CLERI

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. —_- 167

HAZEL PALMER, ET AL, Petitioners,

vs.

ALLEN C. THOMPSON, MAYOR, CiTY OF

JACKSON, ET AL, Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT.

Joun E, STONE

City Attorney

City Hall

Jackson, Mississippi

Tuomas H. WATKINS

Suite 800 - Bankers Trust Plaza Bldg.

Jackson, Mississippi

EvizaBeTH W. GRAYSON

Suite 800 - Bankers Trust Plaza Bldg.

Jackson, Mississippi

Attorneys for Respondents.

INDEX

Brief of respondents in opposition to writ of

certiorari

Summary of argument

Argument—Grounds for denying writ

1. This Petition is an effort to have this Court

by certiorari review the evidence

. The Writ cannot be justified on the ground

that the court below rendered a decision in

conflict with the decision of another Court of

Appeals on the same matter or in conflict

with any applicable decision of this Court ...

3. There is not involved here any important

question of Federal law which should be

settled by this Court

Conclusion

Appendix A

Appendix B

TaBLe or Cases

Anderson v. Martin, 375 U.S. 399, 11 L.ed.2d 430...

Beard v. City & County of San Francisco, 180 P. 2d

744 (hospital)

Bullock v. Tamiami Trail Tours, Inc., C.A. 5, 266 F.

2d 326

Caporossi v. Atlantic City, N.J., 220 F. Supp. 508,

affirmed C.A. 3,328 F. 2d 620, cert. den. 13 L.ed.2d

35, 379 U.S. 825

City of Ferguson v. Marrow, C.A. 8, 210 F.2d 520 ...

City of Montgomery v. Gilmore, C.A. 5, 277 F. 2d 364

City of Orange, Tex. v. Lacoste, Inc., C.A. 5, 210 F. 2d

939 (a port)

City of Tyler v. Ingram, Tex., 157 S.W. 2d 184 (park)

Clark v. Thompson, 206 F. Supp. 539, affirmed C.A. 5,

313 F. 2d 637, cert. den. 376 U.S. 951, 11 L.ed. 312

Dept. of Treasury v. City, Ind., 60 N.E. 24 957 (golf

course and airport)

Evans v. Abney, 24 L.ed.2d 634, 396 U.S. 613

(1)

Cases—Continued

General Talking Pictures y. Western Electric, 304

U.S. 175, 83 L.ed 1273

Griffin v. The County School Board of Prince Edward

County, Virginia, 377 U.S. 218, 12 L.ed.2d 256 ....

Hampton v. City of Jacksonville, 304 F. 24 319

Hitchings v. Albemarle Hos

Lee Moor v. Railroad, 297 U.S. 101, 80 L.ed. 509 ....

Southern Power Co. v. North Carolina Public Service

Co., 68 L.ed 413, 268 U.S. 508

S. S. Monrose v. Carbon Black Export, 359 U.S. 180,

3 L.ed.2d 723

Thomas v. Potomac Electric

266 F. Supp. 687

Tonkins v. City of Greensboro, D.C. N.C., 162 F. Supp.

549, 175 F. Supp. 478, affirmed C.A. 4, 276 F. 2d 890

Town v. Karpark Corp., C.A. 4, 194 F. 2d 616 (park-

ing meters)

Walker v. Sha

¥,

Wood vy. Vaughan, D.

LE CLO PINE IO LSE IT LOGIE EG

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No.

HAZEL PALMER, ET AL, Petitioners,

vs. |

ALLEN C. THOMPSON, MAYOR, CITY OF

JACKSON, ET AL, Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO WRIT

OF CERTIORARI

Summary of Argument

Petitioners seek a Writ of Certiorari to review the judg-

ment of the United States Court of Appeals for the Fifth

Cireuit, affirming an order of the United States District

Court for the Southern District of Mississippi (Jackson

Division) denying injunctive relief to the Petitioners who

sought to require the City Officials to open its public

swimming pools closed by the respondents after a federal

court order integrating these facilities.

Respondents submit that Petitioners have not brought

themselves within the considerations governing the review

by this Court on Certiorari, controlled by Rule 19 of this

Court. This rule provides: “A review on Writ of Certiorari

is not a matter of right, but of sound judicial discretion,

and will be granted only where there are special and im-

portant reasons therefor.” The character of the reasons

which will be considered are thereafter listed in the rule.

No listed reason is involved here.

(1)

2

There is here involved the right of a City to close all of f

its swimming pools to all citizens and not furnish such

recreational facilities to any citizen. There is therefore no fF

issue of discrimination on account of race, i.e., no 14th

Amendment issue.

The Petition here is predicated on a review of the evi.

dence by this Court and a reversal by this Court of the

finding of fact of the court below, i.e., the fact that the

closing of the pools to all citizens after an order requiring

integration thereof was necessary because the personal

safety of all citizens and the maintenance of law and order

would be endangered by integrated operation thereof and

because integrated pools could only be operated at a large

financial loss. Petitioners’ entire legal argument is based

on this Court’s reviewing this evidence and reversing of

the findings of the court below. This Court will not grant

Certiorari to so do.

The court below did not render a decision in conflict

with the decision of any other Court of Appeals. Petitioners

do not so contend. On the other hand, the decisions of all

reported cases dealing with the same issue are in accord

with the decision in the court below.

The court below did not render a decision in conflict with

any applicable decision of this Court.

This cause involves no substantial issue of general im.

portance. The issue here is limited in scope by the particu-

lar facts and circumstances. There is not here involved the

broader question of whether a City can close a type of

recreational facility after integration without any reason

therefor except racial animosity. The right of a City w

cease to perform a particular proprietary function would

vary depending upon the particular function involved and

the factual justification therefor. The burden on this Court

of policing the factual justification for every such municipal

action would be prohibitive.

- IP PE ITA BOT SP IE

LOS OT ET ee ee Mg Cee as ee

3

Argument—Grounds for Denying Writ

1. This Petition is an effort to have this Court by certiorari

review the evidence.

In 1963 the City of Jackson was operating segregated

swimming pools. The District Court of the Southern Dis-

trict of Mississippi entered a declaratory judgment requir-

ing the integration of swimming pools in the City of Jack-

son in the case of Clark \. Thompson, 206 F. Supp. 539,

affirmed C.A. 5, 313 F. 2d 637, cert. den. 376 U.S. 951, 11

Led. 312.

Thereafter the City of Jackson ceased to operate any

swimming pools and no municipal swimming facilities have

been open to any citizen of either race since said time.

In August 1965 a petition was filed by Petitioners here

seeking injunctive relief against the City and its officials

to require the City to reopen the swimming pools. The

United States District Court for the Southern District of

Mississippi, Jackson Division, denied Petitioners the right

to this injunctive relief. There was an appeal to the Fifth

Circuit Court of Appeals. The Order of the District Court

was affirmed by the Fifth Circuit Court of Appeals on

August 29, 1967. Petitioners have failed to attach as an

Appendix to their Petition a copy of this decision which is

reported 391 F. 2d 324. The pertinent part thereof appli-

cable to the issue here involved is attached hereto as Ap-

pendix “A”, An order was entered for a rehearing en banc.

On October 9, 1969 the prior judgment of the Court of

Appeals was affirmed. The majority opinion of the Court

of Appeals on the hearing en banc affirming the prior

decision of that Court is made Appendix “B” hereto. A

dissenting opinion was filed on November 25, 1969 (Peti-

tioners’ Appendix A, page 48). On January 7, 1970 a con-

curring opinion ‘was filed (Petitioners’ Appendix A, page

45). It specifically stated :

4

“The final footnote of the dissenting opinion shows

that the differences between the majority and the dis.

senters 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. 3).

The majority opinion also noted particular,’ that ‘all

parties agreed that they had “had an opportunity to

offer any and all evidence desired” ’ [p. 3] With defer.

ence, it would appear that the disserting opinion, in

making the finding that the City of Jackson acted in

bad faith, simply departs from the record. There is no

record basis for such a finding.” (Emphasis added.)

Here Petitioners seek a Writ of Certiorari in order that

this Court may resolve the factual differences between the

majority and the minority opinions in the Fifth Circuit

Court of Appeals.

The evidence in the District Court and the findings of

fact of the District Court and the findings of fact of the

Court of Appeals disclose that while the closing of the

swimming pools of the City of Jackson followed the deci-

sion in Clark v. Thompson, supra, that the motive of the

City of Jackson was not a desire to discriminate against

black people nor to harass and enslave black people and

its decision was not made in bad faith but that the decision

of the City Council was based on a motive of promoting the

peace and general welfare of the Community and avoiding

large economic losses from the operation of integrated

pools. The lower courts found that there was no proof of

any other motives of the City of Jackson in reaching its

decision not to perform a purely discretionary proprietory

function of operating this one particular recreational fa-

cility for members of any race.

5

The City of Jackson made a discretionary decision which

it believed was for the best interest of the City and all

citizens thereof. There was nothing before the courts below

or before this Court to support a finding that the City was

motivated in the decision finally arrived at by racial ani-

mosity or discriminatory intent or desire.

The case was tried by stipulation before the District

Court on the pleadings and affidavits, but with full oppor-

tunity having been offered all parties for the introduction

of any evidence desired, and on the District Court’s findings

of fact and conclusions of law (See opinion of the Court of

Appeals on hearing en banc, Appendix “B” hereto).

The only evidence offered as to the motive or intent

of the City was the affidavit of the Mayor (Petitioners’

Appendix B, page 77), which contained the following

language :

“Realizing that the personal safety of ail 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 dees

not intend to reopen any of said pools.”

There was no evidence to the contrary.

The motive or intent of the City was corroborated by

the undisputed proof that although the Clark decision also

involved other recreational facilities such as parks, the zoo,

golf links, auditoriums, ete., that after the Clark decision

no such facilities were closed but all were and are being

operated on an integrated basis.

6

The operation of iutegrated swimming pools presented

& unique problem as to the maintenance of law and order

and as to the effect on the economy of the City. Not only

would integrated pools be operated at a large loss, but it

must be recalled that the operation of swimming pools is

& proprietary, not a governmental function, and the City

would be liable for damages to anyone using the same

should under any circumstances it be held that the City

did not provide adequate protection for the safety of the

users and the maintenance of law and order'. This could

endanger the financial stability of the City.

The liability of a City arising out of the operation of

such a proprietary function as a swimming pool is estab.

lished. See the decisions in such cases as Caporossi y,

Atlantic City, N.J., 220 F. Supp. 508, affirmed C.A. 3, 328

F. 2d 620, cert. den. 13 L.ed.2d 35, 379 U.S. 825, City of

Ferguson v. Marrow, C.A. 8, 210 F.2d 5207; Thomas y.

Potomac Electric Power Co., D.C. D.C., 266 F.Supp. 687.

The finding of fact by the District Judge was as follows:

(Appendix B)

“The City of Jackson 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 312. No municipal swimming facilities have been

opened to any citizen of either race Since said time,

*In Bullock v. Tamiami Trail Tours, Inc., C.A. 5, 266 F. 2d 326, dam-

ages were held recoverable for failure to Protect passengers on a bus

from assault reasonably foreseeable because of racial prejudice and racial

tension in the community.

? Cf. Hitchings v. Albemarle Hospital, C.A. 4, 220 F. 24 716 (hospital) ;

City of Orange, Ter. v. Lacoste, Inc., C.A. 5, 210 F. 2d 939 (a port);

Town v. Karpark Corp., C.A. 4, 194 F. 2d 616 (parking meters) ; Dept.

of Treasury v. City, Ind., 60 N.E. 2d 957 (golf course and airport); Beard

v. City @ County of San Francisco, 180 P. 2d 744 (hospital) ; City of

Tyler v. Ingram, Tex., 157 S.W. 2d 184 (park).

ig

1 DOES CEE YA TREE TEE,

7

and the City Council does not intend to reopen or

operate any of these swimming facilities on an inte-

grated 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 eco-

nomically operated in that manner. Although closed,

the swimming facilities owned by the City are being

properly maintained. In addition to closing the swim-

ming facilities owned by it, the City cancelled its lease

covering the Leavell Woods swimming pool in 1964.”

(Emphasis added.)

The Cireuit Court of Appeals for the Fifth Circuit on

the rehearing en banc stated: (Appendix B)

“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 con-

trary, as the Mayor’s affidavit states, those were com-

pletely 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 econom-

ically on an integrated basis.”

And yet here Petitioners seek to have this Court review

the evidence, and this in spite of the fact that the findings

were not only plainly supported by the evidence but there

was no evidence to the contrary.

Petitioners’ basic dependence upon a review of the evi-

dence by this Court and finding of fact contrary to the

findings of the courts below is evidenced throughout their

_ aan

8

Petition. They are asking this Court to ignore the reasons

established by the City for closing the pool and the motives

therefor, and hold that as a fact the real motivation was

“racism”; a deliberate “insult” to the Petitioners; 4

“marked dislike for black people”; an “insulting continua.

tion of the badges of slavery”.

Petitioners’ entire legal argument is based upon this

Court’s review of and reversal of the findings of fact of

the courts below, i.e., upon the assumption that it does g0,

And yet in General Talking Pictures v. Western Electric,

304 U.S. 175, 83 L.ed 1273, this Court held:

“. .. Granting of the writ would not be warranted

merely to review the evidence or inferences drawn

from it. Southern Power Co. v. North Carolina Pub,

Serv. Co. 263 U.S. 508, 68 L.ed. 413, 44 S.Ct. 164;

United States v. Johnston, 268 U.S. 220, 227, 69 Led.

925, 926, 45 S.Ct. 95; Alabama Power Co. v. Ickes,

302 U.S. 464, ante 374, 58 S.Ct. 300. There is evidence

to support them.” (82 L.ed. p. 1275)

In Southern Power Co. v. North Carolina Public Service

Co., 68 L.ed. 413, 268 U.S. 508, a Writ of Certiorari which

had been granted was dismissed when it developed . ..

“That the controverted question was whether the evidence

sufficed to establish actual dedication of petitioner’s prop-

erty to public use, —primarily a question of fact.”

2. The Writ cannot be justified on the ground that the court

below rendered a decision in conflict with the decision

of another Court of A ppeals on the same matter or in

conflict with any applicable decision of this Court.

While acts of City Officials motivated by a desire to pro-

tect the personal safety of citizens and maintain law and

order or prevent economical injury to the City might not

AR ap te ee ee eres OEE

EE ELEN ES TIE | a OYE

rl .

Sen EE >

9

always justify a deprivation of constitutional rights, this

is not the issue here. On the other hand, there being no dis-

crimination, Petitioners have no constitutional rights to the

maintenance by a City of public swimming pools or the per-

formance by a City of this proprietary function of furnish-

ing this particular recreational facility. Having no such con-

stitutional right, they are deprived of none.

No Court of Appeals of any other Circuit has held that

any citizen has any constitutional right to the availability

of public swimming pools, where there is no discrimination.

Petitioners have cited none. In fact, every Circuit Court of

Appeals and District Court where the exact issue has been

presented has held that there is no such Constitutional right.

The holding in this case of the Fifth Circuit is in accord

with its previous holding in City of Montgomery v. Gilmore,

C.A. 5, 277 F. 2d 364, where the issue was the right of the

City to close its parks. There that Court held:

“We agree with the district court that no law, State

or Federal, requires the City to operate public parks.

“In its resolution closing the parks, the Board of

Commissioners . . . stated that, ‘the members of the

Commission are of the opinion that it is to the best

interests of the citizens of Montgomery that said parks

be closed.’ That is a matter committed to the wisdom

of the members of the Board of Commissioners, and is

not subject to review by this Court in the absence of

some violation of the Construction of the United

States.”

Also, see the opinion of the Fifth Cireuit in Hampton v.

City of Jacksonville, 304 F. 2d 319.

In Tonkins v. City of Greensboro, D.C. N.C., 162 F.Supp.

549, 175 F.Supp. 478, affirmed C.A.4, 276 F. 2d 890, there

was involved the issue as to whether or not the City had

10

the right to close the pools rather than operate them ona

integrated basis. The Courts answered this question in th

affirmative and held that no person had a constitution,

right to swim in a public pool. The Court stated:

“With respect to the right of the plaintiffs, and othe:

Negroes similarly situated, to use the Lindley Par

Swimming Pool on the same terms and conditions ap

plicable to white citizens, this would appear to be g

moot question. The City of Greensboro, through its

City Council, is firmly committed to a permanent clos.

ing and sale of the pool. ...

“The question here presented is whether the de.

fendants have the right to close or sell the Lindley

Park Swimming Pool rather than to operate it on an

integrated basis. The plaintiffs contend that the answer

to this question depends upon whether there is a duty

imposed upon the defendants to support the Four.

teenth Amendment to the Constitution of the United

States. There is no question but that the defendants do

have a positive duty to support the Fourteenth Ament-

ment and other provisions of the Constitution of the

United States, as these provisions are interpreted by

our Courts, but the question still remains as to whether

or not the Constitution of the United States imposes

upon a municipality the positive duty to own and op-

erate recreational facilities.

“In the final analysis, the plaintiffs can only con.

plain of discrimination or unequal treatment. If the

swimming pools are closed to all, or disposed of

through a bona fide public sale, there can be no unequal

treatment and, therefore, no racial discrimination. No

citizen of Greensboro will have access to municipal

swimming facilities,

ll

“Unless persons under the same circumstances and

conditions are treated differently there can be no dis-

crimination. No person has any constitutional right to

swim in a public pool. All citizens do have the right,

however, if a swimming pool is provided, not to be

barred therefrom solely because of race or color. If the

swimming pools are closed or sold, the rights of all

groups will be equal, and it must follow that the closing

or sale will not discriminate against anyone.

“In Clark v. Flory, D.C.E.D.S.C. 1956, 141 F.Supp.

248, 250 affirmed, 4 Cir., 1956, 237 F. 2d 597, where ac-

tion was brought to restrain enforcement of segrega-

tion statutes in use of state park, the Court stated:

“‘No one contends that this Court has the power to

require the State of South Carolina to operate any

park. This Court cannot by mandamus order the re-

opening of the closed park.’

“In Simkins v. City of Greensboro, D.C.M.D.N.C.

1957, 149 F.Supp. 562, it was held that a municipality

was not required to furnish a golf course for its

citizens but if it undertakes to do so out of public

treasury, it cannot constitutionally furnish such facili-

ties to a part of its citizens and deny them to others

similarly situated.”*

In Wood v. Vaughan, D.C. Va., 209 F.Supp. 106, affirmed

C.A. 4, 321 F. 2d 474, the Court made the following com-

ment:

“ . . Obviously the city officials realized that they

could not legally maintain segregation in the pools and

chose the course of abandoning the use of these facili-

* Quotation is from 162 F. Supp. 549.

12

ties rather than to desegregate them—a course that,

where swimming pools are concerned, has been followed

by many, if not all, of the southern cities in which the

question has arisen. .. .”

The same result was reached in Walker v. Shaw, D.C.

S.C., 209 F.Supp. 569, dealing with the right of the City

of Greenville, South Carolina, to close its public skating

rinks.

In Lagarde v. Recreation & Park Commission, D.C. La,

229 F.Supp. 379, the Court held:

“There is no legal obligation or duty on the part of

the City or Parish to provide or operate any public

recreational facilities, . . .”

In Willie v. Harris County, Tex., 202 F.Supp. 549, the

Court pointed out that there was no constitutional compul-

sion which directed a state or its subdivisions to furnish

recreational facilities.

With all swimming pools in the City of Jackson now

closed and closed since 1963 there is no question of any

discrimination on account of race and therefore no ques-

tion arises under the Fourteenth Amendment to the Con-

stitution.

Nor is the decision of the Fifth Cireuit Court of Appeals

in this case in conflict with any applicable decision of this

Court.

Petitioners rely on Griffin v. The County School Board of

Prince Edward County, Virginia, 377 U.S, 218, 12 L.ed.2d

256, involving the closing of the public schools in Prince

Edward County, Virginia.

The relationship of a government to the operation of the

public schools is not comparable to the furnishing of a ree-

reational facility such as a swimming pool. The furnishing

Fah AN pitt SE ee Sel tee aes oe 3

PBSC EES ke ER ARC sh

nt ae

;

of such recreational facilities is the exercise of the discre-

tionary proprietary power of a local government, while the

operation of public schools is the exercise of a governmental

power, usually required by the state laws or by constitu-

tional provisions.

In Griffin the Court merely held that there was discrim-

ination against the petitioners and a denial of the equal

protection of the law under the Fourteenth Amendment

for two reasons:

(1) The state was discriminating against Petitioners in

that it was by public statewide taxation supporting the

public schools in every other county of the state except in

Prince Edward County.

(2) Beth the county and state were discriminating

against petitioners, in that they both contributed to the

support of private schools in Prince Edward County, but

not to any public schools therein.

That this was the basis for the holding of a denial of

constitutional rights clearly appears from the following

language in the opinion:

“For reasons to be stated, we agree with the District

Court that, under the circumstances here, closing the

Prince Edward County schools while public schools

in all the other counties of Virginia were being main-

tained denied the petitioners and the class of Negro

students, they represent the equal protection of the

laws guaranteed by the Fourteenth Amendment.

“|. The new complaint charged that Prince Edward

County was still using its funds, along with state funds,

to assist private schools while at the same time closing

down the county’s public schools.

14

“. . . Accordingly, we agree with the District Court

that closing the Prince Edward schools and meanwhile

contributing to the support of the private segregated

white schools that took their place denied petitioners

the equal protection of the laws.”

The Court in Griffin thus held that the children of all

races had a right to public schools, if any children were

being furnished such privileges. This is a far ery froma

holding that any citizens of Jackson have a constitutional

right to recreational facilities, such as a public swimming

pool, when none of the citizens thereof are being furnished

such facilities.

All other cases from this Court relied on by Petitioners

involved actual discrimination on account of race or in-

volved acts which promoted or statutes which authorized

discrimination,‘ not involved here.

In fact the decision of the court below is in line with

phraseology of Evans v. Abney, 24 L.ed.2d 634, 396 U.S.

613. There a city was allowed to relinquish and give up a

part claiming that if integrated the title, under the terms

of a will, would revert to the heirs. A court decision to that

effect was affirmed, i.e., there was a factual basis for aban-

doning the park. Here Respondents claim the right to cease

the operation of public swimming pools after the City

Council determined that the operation of the same en-

dangered public safety and law and order and would ad.

* For example, in Jones v. Mayor, 392 U.S. 409, 20 L.ed.2da 1189, the

real issue was whether or not private discrimination on account of race

was prohibited by 42 U.S.C. § 1982, as well as public discrimination. The

discrimination involved was the lack of freedom of Negroes “to buy

whatever a white man could buy”. In Anderson v. Martin, 375 U.S. 399,

11 L.ed.2d 430, there was involved a statute providing that election docu-

ments designate the race of the candidate. While on its face it applied to

all races it was held unconstitutional on the ground that equality was only

superficial and that it actually promoted discrimination which made it

invalid.

hens hie: td i eich pith cp aly Geshe

Fae SMA in OE ati 0h thts e hpbats sdb tt,

—

versely affect the economy of the City. The Court in Evans

stated :

“Here the effect of the Georgia decision eliminated

all discrimination against Negroes in the park by elim-

inating the park itself, and the termination of the park

was a loss shared equally by the white and Negro citi-

zens of Macon since both races would have enjoyed a

constitutional right of equal access to the park facil-

ities had it continued.”

Here, as there, the effect of the decision of the City

Council eliminated all discrimination against Negroes.

3. There is not involved here any important question of

Federal law which should be settled by this Court.

Here there is not involved the broader question as to

whether or not a City can close all its recreational facilities

when they are integrated. Here the City of Jackson main-

tains and furnishes adequate recreational facilities on an

integrated basis, i.e., golf links, zoo, parks, coliseum, ete.

The swimming pools, used for only a few months of the

year, were a minor luxury.

There is not presented here the broader question of

whether a city can close a recreational facility without

any factual justification therefor or merely because of

racial animosity. The issue here involved is factually lim-

ited. The holding of the Court below only involves the

closing of a recreational facility where there is a valid

factual justification therefor, i.e., to preserve the safety

and welfare of the public and the financial stability of

the City.

The right of a city to cease to per°orm a particular

proprietary function would vary depending upon the par-

16

ticular function involved and the factual justification there.

for. The burden on this Court of policing the factual justi.

fication for every such municipal action would be pr.

hibitive.

It will be noted that in all of the above cited cases wher

the same question has arisen in courts of appeal that in no

instance was the question considered of sufficient impor.

tance to justify a Petition for Certiorari. It will also he

observed that in District Court cases above cited the ques.

tion was not considered of sufficient importance to justify

an appeal to a Court of Appeals.

As pointed out, any question of discrimination has been

removed by the Clark decision and that issue is now moot

The policy of this Court with reference to granting

Writs of Certiorari is stated in S. S. Monrose v. Carbon

Black Export, 359 U.S. 180, 3 L.ed.2d 723, as follows:

“While this Court decides questions of public im.

portance, it decides them in the context of meaningful

litigation. Its function in resolving conflicts among the

Courts of Appeals is judicial, not simply administra-

tive or managerial. Resolution here of the extent to

which these bill of lading provisions may be given

effect by our courts can await a day when the issue is

posed less abstractly.” (P. 726)

In Layne € Bowler Corp. v. Western Well Works, %61

U.S. 387, 67 L.ed. 712, the Court in dismissing a Writ of

Certiorari improvidently granted, commented on the bur-

dened docket of this Court and then stated:

“. . . it is very important that we be consistent in

not granting the writ of certiorari except in cases in-

volving principles the settlement of which is of im-

portance to the public as distinguished from that of the

parties, and in cases where there is a real and embar-

Wi Nt ab Aiud SS Se ts Rap Seats

CW ante

Se

hacia ik eat i tat nition bg i te TE EE RE

—

17

rassing conflict of opinion and authority between the

cireuit courts of appeal.”

In Lee Moor v. Railroad, 297 U.S. 101, 80 L.ed. 509, this

Court commented on the hesitancy with which it would

grant a Writ of Certiorari in a case involving a mandatory

injunction which is granted or refused in the exercise of

sound judicial discretion of the lower courts.

Conclusion

For the above reasons we respectfully submit that a

Writ of Certiorari should not issue to review the judgment

and opinion of the Fifth Circuit Court of Appeals.

Respectfully submitted,

JoHN E. STONE

City Attorney

City Hall

Jackson, Mississippi

Tuomas H. WatTKINS

Suite 800 - Bankers Trust Plaza Bldg.

Jackson, Mississippi

EvizaBETH W. GRAYSON

Suite 800 - Bankers Trust Plaza Bldg.

Jackson, Mississippi

Attorneys for Respondents.

18

APPENDIX A

Untrep States Court or Appgats, Fiera Circuit.

No. 23841

Haze Patmer et al., Appellants,

v.

ALLEN C. THompson, Mayor, City of Jackson et al.,

- Appellees.

Aug. 29, 1967.

Class action by Negro citizens and residents of city to

enjoin certain city officials from certain allegedly discrim-

inatory conduct. The United States District Court of Missis-

sippi, William Harold Cox, Chief J udge, rendered judgment

denying relief and appeal was taken. The Court of Appeals,

Rives, Circuit Judge, held that city may abandon operation

of segregated public swimming pools to prevent them from

being desegregated without violating equal protection clause

of federal Constitution when swimming pools cannot be

operated economically or safely as integrated pools.

Affirmed.

(West Key Numser System)

1. Constitutional Law (Key) 217

City may abandon operation of segregated public swim-

ming pools to prevent them from being desegregated with-

out violating equal protection clause of federal Constitution

when swimming pools cannot be operated economically or

safely as integrated pools.

2. Injunction (Key) 118(2)

Standing to enjoin discrimination in operation of non-

recreational facilities must be apparent from the complaint.

—_— ee

19

3. Constitutional Law (Key) 42

Normally person cannot challenge constitutionality of

statute unless he shows that he himself is injured by its

operation.

4. Constitutional Law (Key) 42

Party challenging alleged segregation in operation of non-

recreational public facility lacks standing to challenge al-

leged discrimination unless he has been aggrieved and either

he or class of which he is a member may be aggrieved by the

use of the segregated facility. U.S.C.A. Const. Amend. 14.

5. Constitutional Law (Key) 42

Person challenging constitutionality of segregated jail

facility lacks standing to bring suit unless he is presently

incarcerated or is threatened by government officials with

incarceration. U.S.C.A. Const. Amend. 14.

6. Constitutional Law (Key) 42

All Negroes are not members of the class consisting of

those Negroes threatened with or subjected to imprisonment

in segregated jail facilities and only those Negroes presently

incarcerated or threatened by government officials with in-

earceration have standing to challenge constitutionality of

statute providing for segregation of prisoners. US.C.A.

Const. Amend. 14.

7. Action (Key) 13

Only in exceptional circumstances where it would be diffi-

cult if not impossible for persons whose rights are being

denied to present their grievances to the courts may a third

party raise another’s rights.

8. Federal Civil Procedure (Key) 656

Pleadings may be liberally construed.

L. H. Rosenthal, Jackson, Miss., Paul A. Rosen, Detroit,

Mich., for appellants.

20

Thomas H. Watkins, FE. W. Stennett, Jackson, Miss., for

appellees.

Before Rives, Copeman and Gopsotn, Cireuit J udges,

Rives, Cireuit Judge.

Twelve Negro citizens and residents of Jackson, Missis.

sippi, on their own behalf and “on behalf of the thousands

of their fellow Negro citizens and residents * * * who are

similarly situated because of race and color,” filed a com-

plaint against the Mayor and Commissioners of Jackson, its

Police Chief, and its Director of Recreation, seeking to en-

join their allegedly discriminatory conduct. After joinder

of issue and the filing of affidavits and stipulations showing

the facts, the case was submitted to the district court for

final decree on its merits. The court found that the plaintiffs

were not entitled to any of the relief prayed and dismissed

the complaint. On appeal, the plaintiffs seek review on two

points stated in their brief as follows:

“First Point

“Where a local government closes its previously

segregated public facilities to avoid a judgment declar-

ing that Negroes have a right to use the facilities on an

integrated basis, the closing violates the equal protec.

tion clause of the Constitution of the United States and

Negro residents have a cause of action against the local

government to compel re-opening of the facilities. The

trial court erred in denying appellants’ request for

injunctive relief from appellees’ discriminatory closing

of the pools.

“Second Point

“Segregation of the races in municipal jails is for-

bidden by the Fourteenth Amendment. Where segrega-

tion of public facilities is pursuant to a state statute,

such statute, is unconstitutional as contrary to the

Fourteenth Amendment, and the trial court erred in

denying appellants’ request to enjoin operation of such

facilities in a segregated manner.”

—

21

There seems to be no dispute as to the facts; certainly

the findings of fact are not clearly erroneous. Rule 52(a),

Fed. R.Civil P. As to the swimming pools, the district court

found the facts as follows:

“The City of Jackson 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 [375] 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 oper-

ate any of these public swimming facilities on an inte-

grated 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 eco-

nomically operated in that manner. Although closed,

the swimming facilities owned by the City are being

properly maintained. In addition to closing the swim-

ming facilities owned by it, the City cancelled its lease

covering the Leavell Woods swimming pool in 1964.”

The district court’s conclusions of law relating to the

operation of the swimming pools were:

“The plaintiffs have no constitutional right to require

the City of Jackson to maintain cr operate specific f acil-

ities such as swimming pools, benches in parks, or

public rest rooms in any particular building. Any publie

facility furnished by the City would have to be avail-

able to all citizens regardless of race. As to whether any

particular facility will be furnished, the City officials

exercise judgment on a matter committed to their wis-

dom which is not subject to review by any Court in the

absence of violation of constitutional rights. City of

Montgomery v. Gilmore, U.S.C.A. 5th, 277 F.2d 564

[364]; Lagrade v. Recreation & Park Commission,

D.C. La., 229 F. Supp. 379. No person has a constitu-

22

tional right to swim in a public pool. Tonkins vy. City |

of Greensboro, D.C. N.C., 162 F. Supp. 549. Where }

public facility is closed to members of all races, any

issue as to discrimination becomes moot. Clark v. Flory,

U.S.C.A. 4th, 237 F.2d 597; Wood v. Vaughan, D.C.Va,

209 F. Supp. 106; Walker v. Shaw, D.C.S.C., 209 F.

Supp. 569.”

[1] The appellants urge that the City may not abandon

the operation of public swimming pools to prevent them

from being desegregated, and that to do so is contrary to

the teaching of Mulkey v. Reitman, 1966, 64 Cal.2d 529, 413

P.2d 825, aff’d, May 29, 1967, U.S. No. 483, Oct. Term 1966,

and of Griffin v. County School Board of Price Edward

County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256. In

our opinion, the holding in neither of these two cases ex-

tends so far as to prevent the City from closing its swim-

ming pools when they cannot be operated economically or

safely as integrated pools.

The basic holding in Mulkey v. Reitman, according to our

understanding, was that the State had become significantly

invoived in private discriminations against Negroes con-

cerning residential housing. In Griffin the Supreme Court

held that,

“For reasons to be stated, we agree with the District

Court that, under the circumstances here, closing the

Prince Edward County schools while public schools

in all the other counties of Virginia were being main-

tained denied the petitioners and the class of Negro

students they represent the equal protection of the laws

guaranteed by the Fourteenth Amendment.” 377 US.

at 225, 84 S.Ct. at 1230.

The Court further held that, “Accordingly, we agree with

the District Court that closing the Prince Edward schools

and meanwhile contributing to the support of the private

segregated white schools that took their place denied peti-

tioners the equal protection of the laws.” 377 U.S. at 232, 84

S.Ct. at 1234. Neither those cases nor any other authority

23

can permit a federal court to require a city to operate public

swimming pools when to do so would endanger the personal

safety of the city’s citizens and the maintenance of law and

order.’

1 We further agree with the finding of the district court that no racial

discrimination was involved in the City’s cancellation of its lease covering

the Leavell Woods swimming pool.

24

APPENDIX B

tN THE Unrrep States Court or APPEALS FOR THE Firru Ciacty

No. 23841

Hazev Pacnmer, et al., Appellants,

versus

Auten C. THompson, Mayor, City of Jackson, et al.,

Appellees.

Oprnions oF THE Court or APPEALS

Appeal from the United States District Court for the

Southern District of Mississippi

(October 9, 1969)

Before: Brown, Chief Judge; Rives, Tuttle, Wisdom,

Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth,

Godbold, Dyer and Simpson, Circuit Judges.*

Rives, Circuit Judge: The briefs and arguments on re-

hearing en banc have been confined to the first point dis-

cussed in the original opinion; that is, to whether the City

of Jackson denied the equal protection of the laws to Ne-

groes 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 conven-

ience, are again quoted:

“The City of Jackson 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,

* Judge Clayton, now deceased, participated in the decision of this case

and expressed his written concurrence in the opinion and decision on

February 5, 1968, prior to his last illness which disabled him from any

further participation or action.

ee ee

pam ye tee eT

Aa

25

and the City Council does not intend to reopen or

operate any of these swimming facilities on an in-

tegrated 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 circum-

stances’ (Burton v. Wilmington Parking Authority, supra

(365 U.S. 715], at 722) can we determine whether the

reach of the Fourteenth Amendment extends to a particu-

lar case.” Evans v. Newton, 1966, 382 U.S. 299, 300." 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 stipu-

lated :

«e © * 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.

1 To like effect, see Reitman v. Mulkey, 1967, 387 U.S. 369, 378.

26

“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 entitle

to relief. We note particularly that all parties agreed that

they have “had an opportunity to offer any and all evi.

dence 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 inte-

grated 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 com-

pletely desegregated and have been made available to

all citizens of the City regardless of race.”

The Director’s affidavit was to the same e.fect and was

supplemented by a second affidavit stating the average an-

nual operating expense and revenue of the pools for the

—

27

years 1960, 1961 and 1962, from which it appears that

there was an average annual loss of $11,700.00. The affi-

davit concluded: “that the City of Jackson would suffer

z 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 op-

erated 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.” * Desirable

as is economy in government and important as is the

preservation of the public peace, “this aim cannot be ac-

complished by laws or ordinances which deny rights cre-

ated or protected by the Federal Constitution.” * 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 elec-

tions,‘ the governing of a company town,* the operation or

EL Se

* Cooper v. Aaron, 1958, 358 U.S. 1, 16.

* Buchanan v. Warley, 1917, 245 U.S. 60, 81.

«Nixon v. Condon, 1932, 286 U.S. 73; Smith v. Allwright, 1944, 321

U.S. 649; Terry v. Adams, 1953, 345 U.S. 461.

* March v. Alabama, 1946, 326 U.S. 501.

28

provision for the operation of a public utility,® or th

operation and financing of public schools.’

Under the impetus of the declaratory judgment in Clark

v. Thompson, supra, the City was making the transitio)

in the operation of its recreational facilities from a

gated 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 a

unconstitutional mode of operation to one that is consti.

tutionally permissible. That has been held true as to the

reapportionment of the state legislative bodies * and as to

the desegregation of the public schools.* The Constitution

does, however, require that the end result be constitution.

ally permissible.

The equal protection clause is negative in form, but ther

is no denying that positive action is often required to pro-

vide “equal protection.” That is frequently true as to

essential public functions. Other functions permit mor

latitude of action. As to swimming pools, which a city may

furni:, r not at its discretion, it seems to us that a city

meets 1 test of the equal protection clause when it de.

cides 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

* Public Utilities Comm’n v. Pollak, 1952, 343 U.S. 451; Burton +.

Wilmington Parking Authority, 1961, 365 U.S. 715, 724; Boman v.

Birmingham Transit Co., 5 Cir. 1960, 280 F.2d 531; Baldwin v. Morgan,

5 Cir. 1961, 287 F.2d 750, 755.

"Brown v. Board of Education, 1954, 347 U.S. 483, 493; Guillory

v. Tulane University, E.D. La. 1962, 203 F.Supp. 855, 850, 863; Hobson

v. Hansen, D.D.C. 1967, 269 F. Supp. 401.

® Reynolds v. Sims, 1964, 377 U.S. 533.

* Brown v. Board of Education, 1954, 347 U.S. 483: Shuttlesworth ¥.

Birmingham Board of Education, N.D. Ala. 1958, 162 F.Supp, 372, 379,

381, aff'd, 358 U.S. 101.

29

the same race, the closing of all municipal pools would

embody no unconstitutional action or result.”

Attempts to analogize this case to Reitman v. Mulkey,

1967, 387 U.S. 369, and Griffin v. School Board of Prince

Edward County, 1964, 377 U.S. 218, 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 trans-

muted 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 Rettman,

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 pro-

tection 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,” the Court

© 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. See in this regard, Gomillion v. Lightfoot, 1960,

364 U.S. 339, 342-43.

"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, 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.

30

pointed out ti.at the state and county were supporting pri. |”

vate, segregated schools with public funds, to the effey |

that, excluding one temporary expedient, “Prince Edwari 7

County school children, if they go to school in their ow, |

county, must go to racially segregated schools which, al. |:

though designated as private, are beneficiaries of county |

and state support.” 377 U.S. at 230-31. Pretermitting the |

question of swimming facilities available in other parts |

of Mississippi, on which there is no evidence, we see m |

involvement here of public funds applied to maintain any

private swimming facilities.

The plaintiffs rely also on Evans v. Newton, 1966, 3%

U.S. 296, 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 publie }

institution subject to the command of the Fourteenth

Amendment,” 382 U.S. at 302. “We only hold that wher

the tradition of municipal control had become firmly es-

tablished, 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. 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 parks in Evans v. Newton

continued to operate, with the benefit of continued “munici-

pal maintenance and concern.” 382 U.S. at 301.

Appellants have urged a theory other than those sug.

gested explicitly by Reitman, Griffin and Evans. We under-

stood them to argue in terms of a protected right to bea

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

31

badge implying inequality—segregated pools, the munici-

ity’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 com-

munity, we see no withdrawl of any badge of equality.

Plaintiffs extend their argument, however, urging that

white people in general are more affluent and thus have

ater access to private swimming facilities.* 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 are“ ©

municipal action. In this context, the argument “=”

little legal significance. The equal protection clause © ©

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 swim-

ming pool solely because the city’s ceasing to do so fore-

closes 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, at 231, uses the expression that, “Whatever non-

racial grounds might support a State’s allowing a county

to abandon public schools, the object must be a constitu-

tional one, and grounds of race and opposition to desegre-

gation 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 para-

graph, 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

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, citing Terry v. Adams, 1953, 345

U.S. 461; Public Utilities Comm’n v. Pollak, 1952, 343 U.S. 451; Marsh

v. Alabama, 1946, 326 U.S. 501.

—— i

32

Segregation. We do not read this statement to prohibit the

City from taking race into consideration if not for a

invidious or discriminatory purpose. The consideration of

racial factors has been endorsed in cases of national de.

fense,” the operation of the public schools,” and the sele.

tion of jurors."* In dismissing this complaint, after consider.

ing the affidavits and testimony, the district court found that

the City officials acted in the interest of preventing vio.

lence 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 considera.

tion.

Motivation has been pointed out here as a positive indi.

cation 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 unsegre.

gated 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 econ.

omy 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.

Chief Judge Brown, Judges Tuttle, Wisdom, Thorn-

berry, Goldberg, and Simpson dissent reserving the right

to file a dissenting opinion.

Judges Gewin, Coleman, Ainsworth, Godbold and Dyer,

concur.

Judge Bell concurs in the result and specially reserving

the right to file a concurring opinion.

18 Hirabayashi v. United States, 1943, 320 U.S. 81, 100.

** Shuttlesworth v. Birmingham Board of Education, supra, n. 9; see

also Darby v. Daniel, S.D. Miss. 1958, 168 F.Supp. 170, 186.

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