Amicus Curiae Brief — Palmer v. Thompson

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‘ Supreme Court of the United States

OCTOBER TERM, 1970

HAZEL PALMER, ET AL.,

* Petitioners,

versus

ALLEN C. THOMPSON, Mayor,

CITY OF JACKSON, ET AL.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS

Attorneys for the West Point

Amicus Curiae

| scam

SUIT TN DIEX

aye

Intervet of Amiel Crore ,

Argument :

1 Cloeing oo Public Swimming Pool Selely toe

Prevent Hinek Cltlvene from Combing ting

with White ia an Aaeertion of Tnfertority of

Hiaek People and Therefore a Denial of Pqunl

Protection Prohibited hy the Pourteenth

Amendment ‘}

Hl. Closing a Publie Awimming Pool Solely te

Prevent Hinek Citivena from Comming ling

with White lea Hadpe of Slavery Prohibited

Hy the ‘Thirteenth Amendment 1K

Coneluaion 2H

Certifiente of Servier uo

“Se

INDEX TO AUTHORITIES CITED

CASES ‘ Page

Aaron e. MeXinley, V7 F.Supp. 44d CED Ark, 1969),

aff'd. anh nom, Fanbue oe Aaron, SOL UWS. 197

(ipo) 18

Adtekes eS. i. Krese &® Co. 398 U.S, , mo S.Ct,

Toys (iz) 16

Anderson 0 Martin, S76 US, 8M C1o60d) ih

Raley e Patterson, 1 F.Supp. 505 (S.D Miss,

WL), vacated and remanded S60 US. SL 62) 17

Rell e. Maryland, 878 US. 226 (1964) 29 |

Rrown eo, Board of Rdueation, 347 UWS. 488 (1954) 89

Reon eo. Roand of Nducation, S40 US. 204 (1955) 1b

Ruchanan ev Warley, 246 US, 60 C1917) i

Bertone Wilmington Parking Authority, 865 U.S,

TU clged) 6,15

Rush ve, Orleans Parish School Board, 187 F.Supp, 42

(B.D La, 1960), affd, 865 U.S, 5669101961) 18

188 F.Supp. 916

(ED La, 1960), affd, 865 U.S, 569 (1961) 18

Cird Rights Cases, 109 U.S. 3 (1883) 18, 25

Clark vy. Thompson, 206 F.Supp. 539 (4.D.Miss.,

1962), affd. 318 F.2d 673 (C.A.5, 1963), cert.

den, 876 U.S. 951 (1963) 6, 10, 11, 16

II

SUBJECT TO AUTHORITIES (Continued)

Page

Cooper Aaron, 368 US. 1 1958) 15,17

Bvane v. Abney, 896 U.S. 485 C1970) 12

Kuan vo. Newton, S82 ULS. 206 (1966) 1h

Bx parte Virginia, 100 U.S, 88901880) 11,25

Ferqguaon v, Gies 82 Mich, 358, 46 N.W, 718

(1800) , 15, 28

Garrett wv. Faubus, 280 Ark, 445, 323 8.W.2d 877

(1959) 13

Gayle », Browder, 362 U.S, 903 (1956) )

Goxe v. Board of Education, 373 U.S, 683 (1963) 15

Green v. County School Board of New Kent County,

B01 U.S. 480 (1968) 7

Griffin v. School Board of Prince Edward County,

377 U.S, 218 (1964) 7, 12

Guyot v, Pierce, 872 F.2d 658 (C.A.5, 1967) 16

Hamm v. Virginia State Board of Elections, 230

F.Supp. 156 (E.D.Va., 1964), aff'd. 379 US.

19 (1964)

Harmon v. Tyler, 273 U.S. 668 (1927)

Henderson v. United States, 339 U.S. 816 (1950)

Ill

— Ne en Cae er nce Ga PETRIE: PRADA AFD

SUBIECT TO AUTHORITIES (Continued)

Page

Hodges v, United States, 208 US. 1 1906) 2b, 26

Holmes vo City of Atlanta, 8360 U.S, 879 (1965)

Holmes v. Danner, 190 F.Supp. 394 (M.D.Ga., 1961) 18

Hunter v. Nriekson, 398 US. 385) (1969) s

In ve Turner, 24 Fed. Cas. 3887 (No, 14,247)

(C.C.Md,, 1867) 23

Johnson ve. Virginia, 878 U.S, 61 (1963) 89

Jones v, Alfred H. Mayer Co., 392 U.S, 409

(' @s 3) 1h, 26, 28

Loving v. Virginia, 388 U.S. 1 1967) 10

Mayer of Baltimore v. Dawson, 850 U.S. 877 (1955) i)

4

Monroe v. Board of Commissioners, 391 U.S. 450

(1968) 7

Muir ve, Louisville Park Theatrical Assoc., 347 U.S.

Y71 (1954) 9

ee OA ee ae Se ee ree, ne eT

NAACP v, Thompson, 357 F.2d 831 (C.A.5, 1966) 16

New Orleans City Park Improvement Assoc. v. De-

tiege, 358 U.S. 54 (1958)

Olmstead v. United States, 277 U.S. 488 (1928)

People v. Brady, 40 Cal. 198 (1870)

IV

SUBJECT TO AUTHORITIES (Continued)

Paye

People v. Washington, 36 Cal, 658 (1869) 23

Pleasy v. Ferguson, 163 U.S. 5687 (1896) 9, 12, 17, 25, 26

Reitman v. Mulkey, 887 US. 369 (1967) 1h

Schiro v. Bynum, 876 U.S. 396 (1964) 0)

Scott v. Sandford, 19 How. 393 (1857) ~

Shelley v. Kraemer, 334 U.S. 1 (1948) 6,11

Slaughter-House Cases, 16 Wall. 36 (1873) 11,24

Strauder v. West Virginia, 100 U.S. 303

(1880) 9,10, 24

Strother v. Thompson, 372 F.2d 654 (C.A.5, 1967) 16

Terry v. Ohio, 3892 U.S. 1 (1968) 7

Turner v. City of Memphis, 369 U.S, 350 (1962) 9

United States v. City of Jackson, 318 F.2d 1 (C.A.5,

1963) 16,17

United States v. Cruikshank, 25 Fed. Cas. 707 (No.

14,897) (C.C.La., 1874), affd 92 U.S. 542

(1876) 23

United States v. Jefferson County Board of Education,

372 F.2d 836 (C.A.5, 1966); aff'd. en bane 380

F.2d 385 (1967) 14

ae

eS SSE eae 5 I aa

Oe ee epee

SUBJECT TO AUTHORITIES (Continued)

Page

United States v. Rhodes, 27 Fed. Cas. 785 (No.

16,151) (C.C.Ky., 1866) 99

Watson v. City of Memphis, 373 U.S. 526 (1963) 15

Williams vy. Kansas City, 104 F.Supp. 848 (W.D.Mo.,

1952), aff'd. 205 F. 2d 47, (C.A.8, 1953) cert,

den. 346 U.S. 826 (1953) 9

STATUTES:

Civil Rights Act, 14 Stat. 27 (1866) 22

Mississippi Code, See. 4065.3 ; ; 16

MISCELLANEOUS:

Congressional Globe,

38th Cong., Ist Sess. (1864) bales 19, 21, 22, 27

38th Cong., 2nd Sess. (1865) ig a 22

39th Cong. Ist Sess. (1866) — aoe

Emerson, Haber & Dorsen, Political and Civil Rights

in the United States, vol. 2 (8d ed.) si“

Kinoy, “The Constitutional Right of Negro Freedom,”

21 Rutgers L.Rev. 387 (1967) 9

J. tenBroek, The Anti-Slavery Origins of the Four-

teenth Amendment (University of California

SIR fot ol 2

VI

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

NO. 107

HAZEL PALMER, ET AL.,

Petitioners,

versus

ALLEN C. THOMPSON, Mayor, City of Jackson,

ET AL.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Four black citizens of four cities of Mississippi re-

spectfully seek leave to file the attached brief Amicus

Curiae. The attorney for petitioners has consented; the

attorney for respondents has refused consent.

These same four persons made a motion for leave to

file an amicus brief in support of the petition for cer-

tiorari in this cause. That earlier motion was granted.

397 U.S. __., 90 S.Ct. 1364 (1970).

The Amici Curiae are as follows: James Moore,

Greenwood, Mississippi; C. O. Chinn, Canton, Missis-

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sippi; Willie Crump, Edwards, Mississippi; and Minnie

MeFarland, West Point, Mississippi. The issue involved

in this suit, the closing of the public swimming pools in

the City of Jackson after a federal court order deseg-

regating those pools had been obtained, is of vital con-

cern to them beeause a similar pattern of events has

taken place in each of their cities. All four cities for-

merly had public swimming pools which were used by

white people only and which, after attempts to integrate

them, were closed or conveyed to private groups that

continued the white-only policy.

In three of the cases there has been litigation in which

Amici were or are named plaintiffs representing the

class of all black residents of those cities. There was no

litigation in West Point but Mrs. McFarland is the

mother of one of the boys who sought to integrate the

pool there on July 4, 1964,

Amici seek leave to file this brief in order to demon-

strate that the practice of closing public facilities is an

integral part of a pattern of racial segregation, to bring

to the Court's attention certain lines of analysis and to

emphasize particular relevant Congressional debates and

early opinions by Justices of this Court.

Respectfully submitted,

ARMAND DERFNER

JAMES REIF

603 North Farish Street

Jackson, Mississippi

Attorneys for the Canton

and Edwards Amici Curiae

3

ALIX SANDERS

JOHN McCREERY

109 1/2 Johnson Street

Greenwood, Mississippi

Attorneys for the Greenwood

Amicus Curiae

JOHN THAMES

THOMAS MAYFIELD

206 East Jordan Avenue

West Point, Mississippi

Attorneys for the West Point

Amicus Curiae

d

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

NO. 107

HAZEL PALMER, ET AL.,

Petitioners,

versus

ALLEN C. THOMPSON, Mayor, City of Jackson,

ET AL.,

Respondents,

BRIEF AMICUS CURIAE

ARMAND DERFNER

JAMES REIF

603 North Farish Street

Jackson, Mississippi

Attorneys for the Canton and

Edwards Amici Curiae

pall tetas in eet BOR AS AOR

3 ALIX SANDERS

j JOHN McCREERY

i 109 1/2 Johnson Street

4 Greenwood, Mississippi

‘| Attorneys for the Greenwood

Amicus Curiae

‘

,

; JOHN THAMES

; THOMAS MAYFIELD

4 206 East Jordan Avenue

West Point, Mississippi

Attorneys for the West Point

Amicus Curiae

romomeaneynsti: Nn

5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

NO. 107

HAZEL PALMER, ET AL.,

Petitioners,

versus

ALLEN C. THOMPSON, Mayor, City of Jackson,

ET AL.,

Respondents.

BRIEF AMICUS CURIAE

THE INTEREST OF AMICI CURIAE IN

PALMER v. THOMPSON

Amici are residents of Canton, West Point, Edwards

and Greenwood, towns in Mississippi where the public

swimming pools have also been closed to prevent their

integration. The facts surrounding the closing of the

pools in each of these towns and the resultant litigation

in which Amici have been involved is set forth in detail

in our Amicus brief on the petition for certiorari, pp. 1-3.

Therefore, we believe we need only note here that the

outcome of these struggles to obtain integrated swimming

facilities in these other towns hinges on the outcome in

Palmer v. Thompson.

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ARGUMENT

1. CLOSING A PUBLIC SWIMMING POOL SOLE.

LY TO PREVENT BLACK CITIZENS FROM COM.

MINGLING WITH WHITE IS AN ASSERTION OF

THE INFERIORITY OF BLACK PEOPLE AND

THEREFORE A DENIAL OF EQUAL PROTECTION

PROHIBITED BY THE FOURTEENTH AMEND.

MENT.

When black plaintiffs obtained a federal court order

requiring the integration of the swimming pools operated

by the City of Jackson, Mississippi, Clark v. Thompson,

206 F.Supp. 539 (S.D.Miss., 1962), aff'd. 313 F.2d 673

(C.A.5, 1963), cert. den, 376 U.S. 951 (1963), the City

responded by closing four of its five pools and cancelling

the lease it held on the fifth. When the present. suit

was instituted to compel a reopening of the pools on an

integrated basis, two of the defendants, Allen Thompson,

Mayor of Jackson, and George Kurts, City Director of

Recreation, conceded in their affidavits that the pools

were closed in order to prevent racial integration. Al-

though the United States Court of Appeals for the Fifth

Circuit was almost equally divided on the legal issues in

this case, it was in unanimous agreement that the pools

were closed by the City to prevent the commingling of

the races.'

1 Respondents have claimed that while it is true the pools were closed

to enforce separation of the races, the named defendants did not. act

with the intention of discriminating against black people. This attempted

distinction is a differentiation without a difference. Whether the re-

spondents closed the pools because of the racial prejudice that they

themselves felt as individuals or whether they closed the pools because

of the racial prejudice of other whites in Jackson is of no constitutional

moment, “It is of no consolation to an individual denied the equal pro:

tection of the laws that it was done in good faith.” Burton y. Wilmington

Parking Authority, 365 U.S. 715, 725 (1961). The fact is that racial

prejudice caused the City to close a public facility in order to prevent

its integration, In Shelley v. Kraemer, 334 U.S. 1 (1948), that the judge

who enforced the restrictive covenant did not intend to discriminate

7

The main thrust of the majority opinion below was that

blacks were not denied equal protection because the clos-

ings operated equally on black and white alike: neither

had the opportunity to use the pools. 419 F.2d 1222,

1225-1227 (C.A.5, 1969). Moreover, if black people could

not gain access to privately operated pools, that was

merely the result of economic disparity, a kind of dis-

crimination against which the equal protection clause of-

fers no protection. 419 F.2d at 1227.

The majority recognizes that black people, unlike their

white counterparts, cannot turn to the many privately

operated pools in Jackson now that the public swimming

facilities are closed. The majority has misunderstood,

however, the nature of the discrimination that has

wrought this condition. It is not economic, it is racial.

There are many black residents of Jackson who now wish

to join private pools and who have the money to do so.

The reason that no black person has the use of a private

swim club or pool is that black people are excluded from

them solely because of their race. In Griffin v. School

Board of Prince Edward County this Court observed that

closing the Prince Edward public schools “bears more

heavily on Negro children in Prince Edward County since

white children there have accredited private schools which

they can attend, while colored children until very re-

cently have had no available private schools, and even

the school they now attend is a temporary expedient.”

against the petitioners was irrelevant. It was enough that in enforcing

the racial covenant he had given his official imprimatur to the racial

prejudices of private individuals. Cf. Terry v. Ohio, 392 U.S. 1, 13

(1968). Similarly, “free transfer” and “freedom-of-choice” school plans

have been declared a denial of equal protection even where it is private

individuals, parents and children, who are motivated by prejudice, rather

than the governmental agency, the school board. See, E.g.. Monroe vy,

Board of Commissioners, 391 U.S. 450 (1968); Green vy. County School

Board, 391 U.S. 430 (1968). Cf. Harmon vy. Tyler, 273 U.S. 668 (1927).

ratte

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8

377 U.S. 218, 230 (1964'. Cf Hunter v. Erickson, 393

U.S. 385, 391 (1969). Similarly, closing the Jackson

public swimming pools bears more heavily on black chil-

dren since white children there have privately owned

pools of which they can make use, while black children

are excluded from all privately operated pools solely be-

cause of their race. The majority below was in error

when it concluded that the closing affected blacks the

same as whites.

Nevertheless, even if that majority has been correct

in its assumption that the tangible effect of the closings

was the same on both races, the closings here would still

deny black people equal protection. This is best seen

when the focus is on the act of closing, itself, rather than

on the subsequent non-operation of the pools.

After Brown v. Board of Education, 347 U.S. 483

(1954) this Court held that racial segregation in a wide

variety of public facilities was a denial to black people

of equal protection.” The holding in each case was not

premised on a finding of a tangible or material inequal-

ity in the facility. In Johnson v. Virginia, for example,

there was no measurable difference to a black man

whether he sat on the right side of the courtroom or

on the left. Rather, these decisions were based on the

conclusion that “separate .. . facilities are inherently

unequal.” Brown v. Board of Education, 347 U.S. at 495.

(Emphasis added.) To intentionally separate black peo-

ple from white is to affirm the inferiority of the former.

The prohibition of integration is a reassertion of the

fundamental premise of Dred Scott v. Sandford: black

people are “beings of an inferior order, and altogether

unfit to associate with the white race, either in social

or political relations.” 19 How. 393, 407 (1857). See Fer-

9

guson v. Gies, 82 Mich. 358, 365-8, 46 N.W. 718, 720-1

(1890). This is true whether the prohibition is by way of

segregation or by way of closing to avoid racial mixing.

The closing of the Jackson pools was premised on the

Dred Scott doctrine and a step toward its revitalization.

It was a declaration by the city that blacks are so inferior

that they could not be allowed to swim in the same pools

as whites, for fear that persons of different races might

come into physical contact. See Williams v. Kansas City,

104 F.Supp. 848, 852-3 (W.D.Mo., 1952), aff'd. 205 F.2d

47 (C.A.8, 1953), cert. den. 346 U.S. 826 (1953).* It was

precisely this kind of move backward toward slavery that

the Fourteenth Amendment was designed to prevent:

The words of the amendment, it is true are

prohibitory, but they contain a necessary impli-

cation of a positive immunity, a right, most val-

uable to the colored race, — the right to exemp-

tion from unfriendly legislation against them

distinctly as colored,— exemption from legal

discriminations, implying inferiority in civil so-

ciety, lessening the security of their enjoyment

of the rights which others enjoy, and discrim-

inations which are steps toward reducing them

to the condition of a subject race. Strauder v,

West Virginia, 100 U.S. 303, 307-8 (1880).

2 Muir v. Louisville Park Theatrical Association, 347 U.S. 971 (1954)

(city lease of park facilities); Mayor of Baltimore v. Dawson, 350 U.S.

877 (1955) (beaches); Holmes v. City of Atlanta, 350 U.S. 879 (1955)

(golf courses); Gayle v. Browder, 352 U.S. 903 (1956) (busses); New

Orleans City Park Improvement Association v. Detiege, 358 U.S. 54

(1958) (parks); Turner v. City of Memphis, 369 U.S. 350 (1962) (ad-

ministrative regulation requiring segregation in airport restaurant);

Johnson vy. Virginia, 373 U.S. 61 (1963) (courtrooms); Schiro v. Bynum,

375 U.S. 395 (1964) (auditoriums).

8’ This reality cannot be answered by the claim that only black people

see the closing as attaching to them a stigma, that white people do not

see the closing as an assertion of white supremacy. This kind of alle-

gation, first raised in Plessy v. Ferguson, 163 U.S. 5387, 551 (1896),

reflecting as it does the insensitivity and lack of understanding by

whites of black people, has been put to rest. Brown v. Board of Educa-

tion, supra.

10

The Jackson pools were closed solely because black

people were about to use those which had always been re-

served to whites. The pools would not have been closed if

white people who, for whatever reason, had never used the

“white” pools before were about to begin making use of

them.’ The closings therefore were a singling out of black

people, a treatment prohibited by the Fourteenth Amend-

ment. For “|t|}he very fact that colored people are singled

out... because of color, though they are citizens . . . is

practically a brand upon them, affixed by the law, an

assertion of their inferiority. .. .” Strauder v. West Vir

gina, 100 U.S. at 308.

The closings acted as punishment of the black people

who had sought to integrate Jackson’s pools. The clos-

ings effectively thwarted their constitutionally protected

attempt to integrate. Moreover, black people who formerly

had the use of one pool now have the use of none; they

have only the animosity of whites whose use of public

pools has also been foreclosed and who recognize that the

*

4In this respect, it can be seen that the classification discussed by the

majority below, which lead to its ultimate holding, was essentially

artificial. Not only did the majority err in its conclusion as to the

relative effect of the closings on the two groups, white and black, that

were subject to the closings, see fn. 1, supra, it also erred in comparing

those two groups in the first instance. The meaningful comparison is

between the black people who sought originally in Clark v. Thompson,

supra, to use the formerly all-white pools and any all-white group that

might have sought to use those same pools for the first time. The

pools were closed in the former instance; they would not be closed

in the latter. Analyzing the problem in this way, rather than in terms

of the majority's largely obfuscatory classification below, makes clear

the denial to black people of equal protection. The problem here is

similar to that in Loving v. Virginia, 388 U.S. 1 (1967). Virginia claimed

that the statute forbidding interracial marriages applied equally to

both spouses and thus denied no one equal protection. But Virginia, like

respondent here, was talking about the wrong classification. Instead of

comparing the effect of the statute on the wife with its effect on the

husband, proper analysis called for a comparison of a black woman's

ability to marry a white man with a white woman's ability to marry

the same man and, conversely, a comparison of a black man’s ability

to marry a white woman with a white man’s ability to marry the same

woman.

11

closings are traceable to the efforts of the black plaintiffs

in Clark v. Thompson, supra.” The black people of Jackson

would be better off today if the complaint in Clark v.

Thompson had never been filed, They have suffered sub-

stantially, both physically and psychologically, because of

that litigation. And yet the Fourteenth Amendment was

designed to relieve black people of special burdens:

No one can fail to be impressed with the one per-

vading purpose found in all the |Wartime|

Amendments, lying at the foundation of each,

and without which none of them would have been

suggested; we mean the freedom of the slave

race, the secur’ty and firm establishment of that

freedom, and the protection of the newly made

freeman and citizen from the opressions of those

who had formerly exercised unlimited dominion

over them. |Slaughter-House Cases, 16 Wall. 36,

71 (1873).|

This language has been quoted so frequently it has be-

come cliche and, in that way, curiously devoid of mean-

ing. But that meaning must be revitalized. If the language

of the Slaughter-House Cases is something more than

cliche, if the Wartime Amendments “were intended to

take away all possibility of oppression by law because

of race or color,” Ex parte Virginia, 100 U.S. 339, 345

(1880), then surely the oppression that the black people

of Jackson have suffered since the “victory” in Clark

v. Thompson, is a violation of the Fourteenth Amendment.

The argument of the respondent here, that the closing

5 While it is true that whites no longer have the use of public pools

either, “Discriminations that operate to the disadvantage of two groups

are not less to be condemned because their impact is broader than

if only one were affected.” Henderson v. United States, 339 U.S. 816,

825-6 (1950). Cf. Sheliey v. Kraemer, 334 U.S. 1, 21-2 (1948). See Fn. 1.

applies equally to black and white, is hauntingly familiar,

Its origins lie with the majority opinion in Plessy y,

Ferguson, 163 U.S. 5387 (1896). Because its separate-but-

equal claim has now been overruled, it is proper and in-

structive to turn to the dissenting opinion in Plessy of

the first Mr. Justice Harlan:

It was said in argument that the statute of

Louisiana does not discriminate against either

‘ace, but prescribes a rule applicable alike to

white and colored citizens, But this argument

does not meet the difficulty. Every one knows

that the statute in question had its origin in the

purpose, not so much to exclude white persons

from railroad cars occupied by blacks, as to ex-

clude colored people from coaches occupied by or

assigned to white persons, ... The thing to ac-

complish was, under the quise of giving equal

accommodation for whites and blacks, to compel

the latter to keep to themselves while travelling

in railroad passenger coaches... . (163 U.S. at

556-7 (emphasis added.)

Just as the Louisiana statute in Plessy sought to compel

black people to remain apart from whites, the action of

the City of Jackson in closing the pools was designed to

achieve the same result. Under Mr. Justice Harlan’s an-

alysis the closings are a clear denial of equal protection.

In Evans vy. Abney, this Court assumed that the closing

of a publicly owned facility solely to avoid the effect of

a prior court order directing that the facility be integrated

would violate the Equal Protection Clause. 396 U.S. 435,

445 (1970). The assumption is supported by prior case law.

In Griffin v. School Board of Prince Edward County, 377

U.S, 218 (1964), this Court held that the closing of public

schools in the county to avoid their integration was a

13

denial to the black plaintiffs of equal protection. While

schools in other counties in Virginia remained open and

while the state was attempting to aid private schools

through the use of public funds, these facts do not dis-

tinguish Griffin from the present case. Its fundamental

thrust is just as relevant where, as here, Jackson has

closed all its pools to ensure that white and black children

in Jackson will not under any circumstances use the same

pool :

Whatever nonracial grounds might support a

State’s allowing a county to abandon public

schools, the object must be a constitutional one,

and grounds of race and opposition to desegre-

gation do not qualify as constitutional. (377 U.S.

at 231).

To the same effect is Aaron vy. McKinley, 173 F.Supp. 944

(E.D.Ark., 1959), aff'd. sub nom. Faubus v. Aaron, 361

US. 197 (1959).

In Bush yv. Orleans Parish School Board, 187 F.Supp.

42 (E.D.La., 1960), aff'd 365 U.S. 569 (1961) and 188

F.Supp. 916 (£.D.La., 1960), aff'd 365 U.S. 569 (1961),

acts of the Louisiana Legislature giving the Governor

the power to close all schools in the state if any one of

them was integrated were declared to be in violation of

the Equal Protection Clause. In Holmes vy. Danner, 191 F.

Supp. 394, 412-3, 415-6 (M.D.Ga., 1961), the Governor of

Georgia was enjoined from closing the state university to

prevent its integration. Garrett v. Faubus, 230 Ark. 445,

323 S.W.2d 877 (1959), dealt with the Arkansas statute

later declared unconstitutional in Aaron v. McKinley,

supra) giving the Governor authority to close any schools

whenever he determined there was an impending threat

14

to law and order or that an effective educational system

could not be maintained due to racial integration. Al-

though the Court found no constitutional infirmity, jt

said: “If Act 4 is viewed as giving the Governor the power

to close all public schools permanently, it would, we con-

cede, be in violation . . . of the decree in the Brown case.”

323 S.W.2d at 880.

The majority below has suggested that race may some-

times be a permissible consideration. The definitive an-

alysis of this question s by Judge Wisdom in United States

v. Jefferson County Board of Education, 372 F.2d 836,

876-8 (C.A.5, 1966), aff'd en bane 380 F.2d 385 (1967).

Part of the first paragraph of the discussion is a proper

summary:

The Constitution is both color blind and color

conscious. To avoid conflict with the equal pro-

tection clause, a classification that denies a ben-

efit, causes harm, or imposes a burden must not

be based on race. In that sense the Constitution

is color blind. But the Constitution is color con-

scious to prevent discrimination being perpetu-

ated and to undo the effects of past discrimina-

tion. The criterion is the relevancy of color to a

legitimate governmental purpose.” (372 F.2d at

876.) (Emphasis added.)

Applying that standard to the case at bar it is clear

that race is irrelevant and therefore an impermissible con-

sideration. Consideration of race in closing Jackson’s pools

results only in the imposition of the burden or stigma of

inferiority. “The prejudice against association in public

places with the negro, which does exist . . . is unworthy

of our race; and it is not for the courts to cater to or

temporize with a prejudice which is not only not humane,

15

but unreasonable. . . .”” Ferguson v. Gies, 82 Mich. 358,

46 N.W. 718, 721 (1890). See, e.g., Anderson v. Martin,

375 U.S. 399 (1964); Hamm v. Virginia State Board of

Elections, 230 F.Supp. 156 (E.D.Va., 1964), aff'd 379

U.S. 19 (1964); Goss v. Board of Education, 373 U.S.

683, 688 (1963).

In closing Jackson's pools, respondents have simply em-

ployed a different technique in the continuing struggle to

preserve the wall of racial separation, a variation on an

old theme." Respondents have contended, however, that

while the pools were closed to prevent racial mixing, it

was only to preserve law and order and to avoid the

financial loss that the City would incur with integration.

These claims are not constitutionally acceptable. Law and

order is not an acceptable reason for preserving separa-

tion of the races by continuing segregation. Cooper v.

Aaron, 358 U.S. 1, 16 (1958) ; Watson v. City of Memphis,

873 U.S. 526, 535 (1963); Brown v. Board of Education,

349 U.S. 294, 300 (1955); Buchanan v. Warley, 245 U.S.

60, 81 (1917). It cannot then be an acceptable justification

for preserving the wall of separation by closing the fa-

cility involved. Similarly, financial expense is insufficient

justification for keeping the races apart by continuing

segregation. “|V]indication of conceded constitutional

rights cannot be made dependent upon any theory that it

6 Legitimized by the Dred Scott axiom that black people were “alto-

gether unfit to associate with the white race,” 19 How. at 407, the

struggle gained impetus from the Black Codes of the post-Civil War

era and from the “separate-but-equal” doctrine of Plessy. The six-

teen years since Brown have seen a frantic effort by racial separatists

to stay one step ahead of the Wartime Amendments. See e.g., 2 Emerson,

Haber and Dorsen, Political and Civil Rights in the United States

(Third Ed.) 1630-65; Jones v. Alfred H. Mayer Co., 392 U.S. 409, 448,

fn. 5 (1968) (concurring opinion of Mr. Justice Douglas). In light of

Burton v. Wilmington Parking Authority, supra, Evans v. Newton, 382

US. 296 (1966), Reitman v. Mulkey, 387 U.S. 369 (1967) and Jones v.

Alfred H. Meyer Co., supra, closing a facility now appears to be the only

remaining way of avoiding integration.

16

is less expensive to deny than to afford them.”’ Watson y,

City of Memphis, 373 U.S, at 537, Financial expense must

therefore be insufficient excuse for keeping the races

apart by closing the facility. As in Watson, this Court

should “not assume that the citizens .. . accept the ques-

tionable premise implicit in this argument or that either

the resources of the city are inadequate, or its govern-

ment unresponsive, to the needs of all its citizens.” 373

U.S. at 537-8. Therefore, because consideration of race

furthers no constitutionally acceptable purpose, but serves

instead to stigmatize black people with a badge of. in-

feriority, closing Jackson's pools solely to avoid integration

is a denial of equal protection.

All this is particularly apt where, historically, the State

of Mississippi, the City of Jackson and Mayor Thompson,

in particular, have fomented and encouraged the race

prejudice that respondents now see as justification for the

closing. The role of the State of Mississippi need _ not

be discussed at length. It is sufficient to point to its “steel-

hard, inflexible, undeviating official policy of segrega-

tion,” United States v. City of Jackson, 318 F.2d 1 (C.A5,

1963) exemplified by its segregation laws,’ particularly

Section 4065.8 of the Mississippi Code, which required

Mayor Thompson to prever¢ integration of Jackson's pools.

As for the City, it was a Jackson ordinance requiring

segregation of public swimming pools that lead to the

Clark vy. Thompson lawsuit. And Mayor Thompson has,

over and over again, encou,aged race prejudice and seg-

regation in Jackson. See, e.g., Strother v. Thompson, 372

F. 2d 654 (C.A.5, 1967); Guyot v. Pierce, 372 F.2d 658

(C.A.5, 1967); NAACP v. Thompson, 357 F.2d 831

F

E

;

;

:

TSee Adickes v. 8S. H. Kress & Co., 398 U.S. . 90 S.Ct. 1598, 1623-25

(1870) (Opinion of Mr. Justice Brennan).

17

(C.A.5, 1966); United States vy. City of Jackson, supra;

Bailey v. Patterson, 199 F.Supp. 595 (S.D.Miss., 1961),

vacated and remanded 369 U.S. 31 (1962). See also Mayor

Thompson's statements about the swimming pools quoted

in Exhibit B of the affidavit of Carolyn Stevens, a peti-

tioner here. Governmental encouragement of racial bigotry

is, of course most unfortunate. As Mr. Justice Brandeis

observed in another context, in a now famous dissent:

“Our government is the potent, the omnipresent, teacher.

For good or for ill, it teaches the whole people by its

example.” Olmstead v. United States, 277 U.S. 438, 485

(1928). Here, Mississippi the City of Jackson and Mayor

Thompson have taught the citizens of Jackson only racial

mistrust and prejudice. Having done so, they cannot be

heard to complain if their teachings are reflected in the

attitudes of the people. Cooper v. Aaron, 358 U.S. 1, 15.

And See the concurring opinion of Mr. Justice Frank-

furter. 358 U.S. at 19-23.

In reviewing the decision of the Court of Appeals, it

is worth recaliing the words of the first Mr. Justice

Harlan: what he said in Plessy v. Ferguson proved to be

prophetic. His words are applicable to the decision below

in this cause:

In my opinion, the judgment this day rendered

will, in time, prove to be quite as pernicious as

the decision made by this tribunal in Dred Scott.

If evils will result from the commingling of the

two races upon public highways established for

the benefit of all, they will be infinitely less than

those that will surely come from state legislation

regulating the enjoyment of civil rights upon

the basis of race. We boast of the freedom en-

18

joyed by our people above all other peoples. But

it is difficult to reconcile that boast with a state

of the law which, practically, puts the brand of

servitude and degradation upon a large class of

our fellow-citizens, our equals before the law.

The thin disguise of “equal’’ accommodations for

passengers in railroad coaches will not mislead

any one, nor atone for the wrong this day done.

(163 U.S. at 559, 562.)

II. CLOSING A PUBLIC POOL SOLELY TO PRE.

VENT BLACK CITIZENS FROM COMMINGLING

WITH WHITE IS A BADGE OF SLAVERY PRO.

HIBITED BY THE THIRTEENTH AMENDMENT.

Section I of the Thirteenth Amendment provides:

Neither slavery nor involuntary servitude, ex-

cept as a punishment for crime whereof the

party shall have been duly convicted shall exist

within the United States, or any place subject

to their jurisdiction.

The scope and meaning of this section have received

little judicial or academic study in recent years. This

inattention has allowed its thrust to become obscured

with the passage of time. “This amendment, as well as

the Fourteenth, is undoubtedly self-executing without

any ancillary legislation ,so far as its terms are appli-

cable to any existing state of circumstance.” Civil Rights

Cases, 109 U.S. 3, 20 (1883).

To what circumstances was the amendment intended

to apply? We first note that it is an affirmative grant

of national power, “for the amendment is not a mere

prohibition of State laws establishing or upholding slav-

ery, but an absolute declaration that slavery or involun-

19

tary servitude shall not exist in any part of the United

States.” Jd., at 20. The amendment is therefore distin-

guished from the Fourteenth. Whereas the latter has

been interpreted as making national power secondary or

corrective, federal power under the Thirteenth is direct

and primary. The amendment did not merely secure rights

by way of prohibition; it affirmatively created the right

of the black man in America to be free."

The relevant Congressional debates and opinions of

this Court show that rather than mere release from

physical bondage, the Thirteenth Amendment was intend-

ed to achieve a revolution in federalism; it was a “char-

ter of liberty,” prohibiting all badges of human slavery

as well as the formal institution itself. It was a broad

grant of national power freeing the black man from his

white master but also from all the incidents of their

former relationship.'”

There were three Congressional debates on the amend-

ment. The first, in the spring of 1864, and the second, a

year later, occurred before its passage. The third debate

took place in December, 1865 and the spring of 1866,

after ratification of the amendment.

In the first two debates proponents and opponents of

the amendment agreed that it would do more than simply

abolish the formal] institution of slavery. Fernando Wood

of New York, a leading opponent, conceded it was de-

signed to achieve “a revolution in social . . . rights.”

*See Kinoy, “The Constitutional Right of Negro Freedom,” 21

Rutgers L. Rev. . 387 (1967).

* Congressional Globe, 39th Cong., Ist Sess., 1151 (1866).

See J. tenBroek, The Antislavery Origins of the Fourteenth Amena-

ment (University of California Press, 1951), pp. 137-152.

11 Cong. Globe, 38th Cong., Ist Sess., 2941 (1864)

127d., at 2983.

13 Jd., 2d Sess., 177, 179-80, 216 (1865).

20

Robert Mallory of Kentucky noted: “You propose to leave

them [the emancipated blacks] where they are freed,

and protect them in their right to remain there.”

(Emphasis added.)'* Opponents acknowledged that the

Thirteenth Amendment would not merely eliminate slay.

ery but would make black people the equals of white, as

a matter of law.'*The past one hundred years have proven

conclusively that mere manumission would not achieve

that equality; more, then, must have been intended by

the amendment.

Abolitionists and their supporters saw the amendment

not merely as partial fulfillment of their aims, but as

the full, meaningful consummation of their struggle.

James F. Wilson of Iowa, co-author of the amendment,

opened the debate in the House of Representatives. He

noted that the purpose of the amendment was to “stamp

universal freedom on our national Constitution.”"* After

speaking of the constitutional rights which slavery had

disregarded and practically destroyed for black people,

Wilson said: “It is quite time, Sir, for the people of the

free states to look these facts squarely in the face and

provide a remedy which shall make the future safe for

the rights of each and every citizen.”

E. C. Ingersoll of Illinois agreed that the amendment

accomplished more than abolition of the formal institu-

tion of human slavery. He argued that it meant

freedom of speech, ... the right to proclaim

the eternal principles of liberty, truth and jus-

tice in Mobile, Savannah, or Charleston with the

same freedom and security as ... at the foot

of Bunker Hill Monument. .. . [It] will secure

14 Jd., 1st Sess., 1200.

15 Jd., at 1202-3.

21

to the oppressed slave his natural and God-given

rights . .. a right to live, and live in a state

of freedom ... a right to breath the free air,

and to enjoy God’s free sunshine ... a right to

till the soil, to earn his bread by the sweat of

his brow, and to enjoy the rewards of his own

labor ... A right to the endearments and en-

joyment of family ties. ... [It will mean] that

the rights of mankind, without regard to color

or race, are respected and protected. (Cong.

Globe, 38th Cong., 1st Sess., 2990.)

William D. Kelley of Pennsylvania concluded that the

amendment was designed to accomplish “the political

and social elevation of Negroes to all the rights of white

men.” IJd., at 2987. Charles Sumner of Massachusetts,

in supporting the Amendment, said:

Beyond my general desire to see an act of uni-

versal emancipation that shall at once and for-

ever settle this great question . . . there are two

other ideas which are ever present to my mind

as a practical legislator: first, to strike at slav-

ery wherever I can hit it; and secondly, to clean

the statute-book of all existing supports of slav-

ery, so that it may find nothing there to which

it may cling for life. To do less than this at the

present moment, when slavery is still menacing,

would be an abandonment of duty.

. .. Too well I know the vitality of slavery with

its infinite capacity of propagation, and how lit-

tle slavery it takes to make a slave State with

all the cruel pretensions of slavery. (Cong. Globe,

38th Cong., lst Sess., 1482.)

The belief that the Thirteenth Amendment was a broad

charter going far beyond the mere manumission of black

p12

© oe

PE, BA ht PB ted PO POA A OBIS OE

22

people was repeated throughout the debates.'* The clearest

declaration of the meaning of the amendment was by Sena-

tor Harry Wilson of Massachusetts. After noting that

slavery was the “prolific mother” of mistreatment of the

black man, he asserted:

If this amendment shall be incorporated by the

will of the nation into the Constitution of the

United States, it will obliterate the last linger-

ing vestiges of the slave system; its chattelizing,

degrading and bloody codes; its dark, malignant

barbarizing spirit; all it was and is, everything

connected with it or pertaining to it. ... (Cong.

Globe, 38th Cong., lst Sess., 1324.)

Here at once, in language clear and unmistakeable, is the

full meaning of the Thirteenth Amendment.

The debates demonstrate a recognition by the Congress

that manumission itself would not mean an end to the

“cruel pretensions of slavery,” that even after the formal

institution had ended, onerous disabilities would still at-

tend a black man’s life. So the amendment was written

in language by which its framers sought to insure prac-

tical freedom, rather than the “mere paper guarantee”™

of freedom.'* The Thirteenth Amendment freed the slaves;

16 See, e.g., Cong. Globe, 38th Cong., 2d Sess., for the remarks of God-

love S. Orth of Indiana, 142-3; John A. Kasson of Iowa, 193; Nathaniel

B. Smithers of Delaware, 217; Id. Ist Sess, John B. Henderson of

Missouri, 1465; Daniel Morris of New York, 2615; John F. Farnsworth

of Illinois, 2979.

17 Cong. Globe, 39th Cong., Ist Sess., 1151.

ISAs noted earlier, there was a third Congressional debate over the

scope of the Thirteenth Amendment. Opponents, for the first time,

argued that it had a narrow meaning. This was a marked departure

from the sentiments they had expressed in the earlier debates, Crucial

to an understanding of this change in attitude is the recognition that

this third discussion occurred after passage of the amendment, during

debate over the 1866 Civil Rights Act, 14 Stat. 27. Opponents of the

bill saw only one chance of defeating it: they would try to show that

it was not authorized by the Thirteenth Amendment, To do this however,

they would be forced to repudiate the broad interpretation they had

given the amendment only a year earlier, Thus, political considerations

23

it freed them not only from their individual masters but

from the oppressions that were incidents of their bondage.

See J. tenBroek, The Anti-Slavery Origins of the Four-

teenth Amend ment, pp. 148-9.

This conclusion is further supported by opinions of this

Court and its individual Justices. United States v. Rhodes,

97 Fed. Cas. 785 (No. 16,151) (C.C.Ky., 1866), was the

first case involving a construction of the amendment.

Justice Swayne, as Circuit Justice, declared of the new

guarantee:

The emancipation which it wrought was an act

of great national grace, and was doubtless in-

tended to reach further in its effects as to every

one within its scope, than the consequences of

a manumission by a private individual. (27 Fed.

Cas. at 794.)

The amendment was also broadly construed by Chief

Justice Chase in Jn re Turner, 24 Fed. Cas. 337 (No.

14,247) (C.C.Md., 1967), and by Mr. Justice Bradley in

United States v. Cruikshank, 25 Fed. Cas.~707 (No.

14,897) (C.C.La., 1874), aff'd. 92 U.S. 542 (1876). See

also People v. Washington, 36 Cal. 658, 665 (1869) where

the Court noted that the first section of the amendment

was “self-executing in the emancipation of the persons

then held in slavery, and in providing for the inviolability

of the personal liberty of all for the future.” (Emphasis

explained the narrower interpretation by some during this debate.

Supporters of the bill, in giving the amendment a broad sweep, were

consistent with the earlier understanding of it, See J. tenBroek, op, cit,

pp. 156-180,

The specific issue in each of these circuit cases was the constitu-

tionality of an Act of Congress, But in passing on that precise question,

each court found it necessary to discuss the scope of the Thirteenth

Amendment.

24

added.) But compare People v. Brady, 40 Cal. 198, 215-6

(1870).

In the Slaughter-House Cases, this Court observed that

the amendment was a “simple declaration of the personal

freedom of all the human race” whose “obvious purpose

was to forbid all shades and conditions of African slavery.”

16 Wall. 36, 69. Further, its purpose was

the freedom of the slave race, the security and

firm establishment of that freedom, and the

protection of the newly-made freeman and cit-

izen from the oppressions of those who had for-

merly exercised unlimited dominion over him.

(16 Wall. at 71.)

It was thus recognized, in the first case before the full

Court involving the Thirteenth Amendment, that it was

designed not only to confirm the Emancipation Proclama-

tion but, also, to protect against any steps that would

tend to re-establish slavery by singling out the black man

as inferior.

In Strauder v. West Virginia, 100 U.S.303, 306 (1880)

and in Ex parte Virginia, 100 U.S.339, 344-5 (1880), this

Court affirmed that the purpose of both the Thirteenth

and Fourteenth Amendments was to secure to black people

equality of civil rights with all other persons.

In the majority opinion in the Civil Rights Cases, 109

U.S. 3 (1883), Mr. Justice Bradley, speaking of the Thir-

teenth Amendment, said:

By its own unaided force and effect it abolished

slavery, and established universal freedom. (109

U.S. at 20.)

25

Mr. Justice Bradley then re-emphasized the point. The

amendment, he observed, “may be regarded as nullifying

all State laws which establish or uphold slavery.” Jbid.

But the amendment did not merely abolish human slavery ;

it went further: “{I]t was a reflex character also, estab-

lishing and decreeing universal civil and political freedom

throughout the United States.” Jbid. Civil and political

freedom is much more than manumission.

In dissent Mr. Justice Harlan disagreed (on the Thir-

teenth Amendment issue) only on the question of whether

refusal to a person of accommodations in an inn, public

conveyance, or place of public amusement constituted a

badge of slavery. He was in full agreement with the ma-

jority on the fundamental meaning of the amendment.

See 109 U.S. at 34-5.*°

In Plessy v. Ferguson, 163 U.S. 537 (1896), the Loui-

siana statute compelling segregation of the races in rail-

road cars was attacked as repugnant to the Thirteenth

Amendment. The disagreement between the majority and

the dissent was on the question of whether such segrega-

tion tended to re-establish slavery; i.e., whether it con-

stituted a badge of slavery. But both Mr. Justice Brown

for the majority and Mr. Justice Harlan in dissent be-

lieved the amendment prohibited all badges and incidents

20In his later dissent in Hodges v. United States, 203 U.S. 1 (1906),

Mr. Justice Harlan explained the majority opinion in the Civil Rights

Cases, supra, and his agreement with it: “As we have seen, this court has

held that the Thirteenth Amendment, by its own force, without the aid

of legislation, not only conferred freedom upon every person (not

legally held in custody for crime) within the jurisdiction of the United

States, but the right and privilege of being free from the badges or

incidents of slavery. . . . I stood with the court in the declaration that

the Thirteenth Amendment not only established and decreed universal,

civil and political freedom throughout this land, but abolished the in-

cidents or badges of slavery. . . .” 203 U.S. at 35, 32. (Emphasis added.)

26

of slavery, Mr, Justice Harlan reiternted the views ex.

pressed in the Civil Rights Cases, supra:

The Thirteenth Amendment does not permit the

withholding or the deprivation of any right nee

essarily inhering in freedom, It not only struck

down the institution of slavery as previously ex

isting in the United States, but it) prevents the

imposition of any burdens or disubilities that

constitute badges of slavery or servitude, Tt de

creed universal civil freedom in’ this country,

This court has so adjudged, |Pleasy vo. Ferguson,

168 U.S. at 555 (dissenting opinion of Mr. Jus-

tice Harlan).|

In Jones vy. Alfred H, Mayer Co,, 392 U.S. 409, 441-3,

fn. 78 (1968), this Court approved the statement of the

first Mr. Justice Harlan (joined by Mr. Justice Day)

in dissent in Hodges vy, United States that the interpreta-

tion of the amendment by the majority there was “entirely

too narrow and... hostile to the freedom established by

the Supreme Law of the land.” 208 U.S. 1, 37. This Court

then declared:

The conclusion of the majority in Hodges rested

upon a concept of congressional power under the

Thirteenth Amendment irreconcilable with the

position taken by every member of this Court in

the Civil Rights Cases and incompatible with the

history and purpose of the Amendment itself.

Insofar as Hodges is inconsistent with our inwia-

ing today it is hereby overruled. (392 U.S. at

442-3, fn. 78.)

We respectfully submit that an interpretation of Section

1 of the Amendment excluding from its coverage the in-

27

cidents and badges of slavery would also be hostile to the

freedom that it) was designed to create, irreconcilable

with the opinions of this Court and incompatible with the

history and purpose of the amendment itself, The debates

and judicial analysis demonstrate that the amendment was

intended ae a broad grant of national power, forbidding

davery, but also forbidding its onerous incidents. The

freedom which the amendment made the right of every

black man was freedom from “everything connected with

.. Or pertaining to” olavery.

It follows that the closing of Jackson's ewimming pools

solely to preserve the separation of the races is prohibited

by the amendment. As was demonstrated in POINT 1,

supra, the closings proceed upon the assumption that black

people are “beings of an inferior order, and altogether

unfit to associate with the white race, either in social or

political relations.” Dred Scott vy. Sandford, 19 How. at

407. The theory of racial inferiority was the prop, the

justification, for the entire institution of human slavery.

Indeed, each was the support of the other, A municipal

act which proceeds upon the theory is, therefore, a relic

of the institution and, as such, prohibited by the Thirteenth

Amendment.

It is not contended that the amendment itself reaches

every act implying the inferiority of the black man. Purely

private acts may be beyond its scope. See Ferguson v. G ies,

82 Mich. 358, 46 N.W. 718, 721 (1890). But the case at

sar is not within that category. The action challenged

was an act by public officials with respect to facilities

21 Cong. Globe, 38th Cong., Ist Sess., 1324.

28

owned and operated by the city and used by thousands

of people. In Jones v. Alfred H. Mayer Co., supra, the ma-

jority acknowledged that discrimination in the sale of

private housing is a relic of slavery. See also the con-

curring opinions of Mr. Justice Douglas in Jones, 392 U.S.

at 444-449, and in Bell v. Maryland, 378 U.S. 226, 246-249

(1964). If forced separation of the races is a substitute for

the Black Codes which were, in turn, substitutes for slay-

ery itself, it follows inexorably that the act here of closing

public pools solely to preserve the wall of separation be-

tween the races is a relic of slavery. As such, it is for-

bidden by the Thirteenth Amendment.

CONCLUSION

For the reasons above, petitioners are entitled to a

reversal of the decision below and to a prompt reopening

of Jackson’s swimming pools.

Respectfully submitted,

(Signed )

ARMAND DERFNER

JAMES REIF

603 N. Farish Street

Jackson, Mississippi

Attorneys for the Canton

and Edwards Amici Curiae

ALIX SANDERS

JOHN McCREERY

109 1/2 Johnson Street

Greenwood, Mississippi

Attorneys for the Greenwood

Amicus Curiae

JOHN THAMES

THOMAS MAYFIELD

206 East Jordan Avenue

West Point, Mississippi

Attorneys for the West

Point Amicus Curiae

30

CERTIFICATE OF SERVICE

I hereby certify that on this day of July, 1970,

three copies of this Brief Amicus Curiae were mailed

postage prepaid to E. W. Stennett, Esq., City Attorney,

Jackson, Mississippi, and Thomas H. Watkins, Esq., Suite

800, Bankers Trust Plaza Building, Jackson, Mississippi,

Counsel for the Respondent and to Paul A. Rosen, Esq,

3200 Cadillac Tower, Detroit, Michigan 48226, Counsel

for Petitioner. I further certify that all parties required

to be served have been served.