MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The present phase of this prolonged litigation concerns the propriety of a federal court's enjoining a municipality from permitting the use of public park recreational facilities by private segregated school groups and by other non-school groups that allegedly discriminate in their membership on the basis of race. We granted certiorari to consider this important issue. 414 U.S. 907 (1973).
Petitioners are Negro citizens of Montgomery, Alabama. In December 1958, now over 15 years ago, they instituted this class action to desegregate Montgomery's public parks. The defendants are the city, its Board of Commissioners and the members thereof, the Parks and Recreation Board and its members, and the Superintendent of the Parks and Recreational Program.
By their original complaint, the petitioners specifically challenged, on Fourteenth Amendment due process and
In 1970, the petitioners sought to reopen the litigation. They filed a motion asking, among other relief, that the respondents be cited for contempt "for deliberately avoiding and violating this Court's Judgment and Order in this case."
The modification by the Court of Appeals related only to the disapproval of a provision in the District Court's order directing a specific Negro-white ratio in the YMCA's board and executive committee. No review was sought here.
The claims raised by the petitioners in their 1970 motion were settled by agreement dated January 29, 1971.
The District Court granted the petitioners the relief they requested. 337 F.Supp. 22 (MD Ala. 1972). The court reasoned that Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system. The court, consequently, enjoined the city and its officials "from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy." Id., at 26. The court went on, however, with sparse findings and brief discussion, and similarly enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities "by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy." Ibid.
On appeal, the Court of Appeals reversed in part and remanded the case with directions. 473 F.2d 832 (CA5
The plaintiffs petitioned for certiorari; the defendants did not cross-petition.
The Equal Protection Clause of the Fourteenth Amendment does not prohibit the "[i]ndividual invasion of individual rights." Civil Rights Cases, 109 U.S. 3, 11 (1883). It does proscribe, however, state action "of every kind" that operates to deny any citizen the equal protection of the laws. Ibid. This proscription on state action applies de facto as well as de jure because "[c]onduct that is formally `private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299 (1966). In the present case we must determine whether the city of Montgomery engaged in discriminatory activity violative of the parks desegregation order. We must also decide whether the city's involvement in the alleged discriminatory activity of segregated private schools and other private groups,
The Court of Appeals affirmed the District Court insofar as the latter enjoined the "exclusive possession of public recreational facilities such as football stadiums, baseball diamonds, basketball courts, and tennis courts for official athletic contests and similar functions sponsored by racially segregated private schools." 473 F. 2d, at 836-837. The boundaries of this "exclusive" use approach, however, are not self-evident. We find the concept helpful not so much as a controlling legal principle but as a description of a type of use and, in the context of this case, suggestive of a means of allocating public recreational facilities. The term "exclusive use" implies that an entire facility is exclusively, and completely, in the possession, control, and use of a private group.
Upon this understanding of the term, we agree with petitioners that the city's policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, "enclaves of segregation" and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional
Instead of prompt and orderly compliance with the District Court's mandate, however, the city of Montgomery engaged in an elaborate subterfuge to anticipate and circumvent the court's order. Segregated recreational programs continued to be presented through the conveniently cooperating private agency of the local YMCA. All public swimming pools were closed allegedly to prevent the mixing of races. Facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. In light of these facts, made part of the record in this case,
Particularly important is the fact that the city's policies operated directly to contravene an outstanding school desegregation order. See Carr v. Montgomery County Board of Education, 232 F.Supp. 705 (MD Ala. 1964); 253 F.Supp. 306 (1966); 289 F.Supp. 647 (1968), aff'd as modified, 400 F.2d 1 and 402 F.2d 782, 784, 787 (CA5 1968), rev'd and remanded sub nom. United States v. Montgomery County Board of Education, with directions to affirm the judgment of the District Court, 395 U.S. 225 (1969).
Here, the city's actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs. The city's provision of stadiums and recreational fields resulted in capital savings for those schools and enabled them to divert their own funds to other educational programs. It also provided the opportunity for the schools to operate concessions that generated revenue. We are persuaded, as were both the District Court and the Court of Appeals, that this assistance significantly tended to undermine the federal court order mandating the establishment and maintenance of a unitary school system in Montgomery. It therefore was wholly proper for the city to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools and by groups affiliated with such schools.
Although the Court of Appeals ruled out the exclusive use of city facilities by private schools, it went on to modify the District Court order "to make clear that the City of Montgomery is not prohibited from permitting nonexclusive access to public recreational facilities and general government services by private schools or school affiliated groups," 473 F. 2d, at 840, or from permitting access to these facilities by private organizations that have a racially discriminatory admissions policy. Id., at 839.
It would be improper to determine at this stage the appropriateness of further relief in all the many and varied situations where facilities are used in common by school groups or used exclusively or in common by private groups. It is possible that certain uses of city facilities will be judged to be in contravention of the parks desegregation order or the school desegregation order, or in some way to constitute impermissible "state action" ascribing to the city the discriminatory actions of the groups. The record before us does not contain sufficient facts upon which to predicate legal judgments of this kind. The questions to be resolved and the decisions to be made rest upon careful identification of the different types of city facilities that are available and the various uses to which they might be put by private groups.
Relief would also be appropriate if a particular use constitutes a vestige of the type of state-sponsored racial segregation in public recreational facilities that was prohibited in the parks decree and likewise condemned in Watson v. Memphis, 373 U.S. 526 (1963). See also Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386 (CA4), aff'd, 350 U.S. 877 (1955); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971 (1954); Holmes v. City of Atlanta, 350 U.S. 879 (1955); New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54 (1958). For example, the record contains indications that there are all-white private and all-Negro public Dixie Youth and Babe Ruth baseball leagues for children, all of which use city-provided ballfields and lighting, balls, bats, mitts, and other aid. Were the District Court to determine that this dual system came about as a means of evading the parks decree, or of serving to perpetuate the separate-but-equal use of city facilities on the basis of race, through the aid and assistance of the city, further relief would be appropriate.
The problem of private group use is much more complex. The Court of Appeals relied on Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), in concluding that the use of city facilities by private clubs did not reflect a "symbiotic relationship" between government and those groups so as to constitute state action. 473 F. 2d, at 838-839.
We feel that Moose Lodge is not fully applicable here. In that case, we generally followed the approach taken
In Moose Lodge the litigation was directly against a private organization, and it was alleged that the organization's racially discriminatory policies constituted state action. We held that there was no state action in the mere fact that the fraternal organization's beverage bar was licensed and regulated by the State. In contrast, here, as in Burton, the question of the existence of state action centers in the extent of the city's involvement in discriminatory actions by private agencies using public facilities, and in whether that involvement makes the city "a joint participant in the challenged activity, which, on that account, cannot be considered to have been so `purely private' as to fall without the scope of the Fourteenth Amendment." 365 U. S., at 725. Because the city makes city property available for use by private entities, this case is more like Burton than Moose Lodge. The question then is whether there is significant state involvement in the private discrimination alleged. Reitman v. Mulkey, 387 U.S. 369 (1967); Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U.S. 296 (1966); Moose Lodge No. 107 v. Irvis, supra. "The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever."
If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation. Here, for example, petitioners allege that the city engages in scheduling softball games for an all-white church league and provides balls, equipment, fields, and lighting. The city's role in that situation would be dangerously close to what was found to exist in Burton, where the city had "elected to place its power, property and prestige behind the admitted discrimination." 365 U. S., at 725. We are reminded, however, that the Court has never attempted to formulate "an infallible test for determining whether the State . . . has become significantly involved in private discriminations" so as to constitute state action. Reitman v. Mulkey, 387 U. S., at 378. " `Only by sifting facts and weighing circumstances' on a case-by-case basis can a `nonobvious involvement of the State in private conduct be attributed its true significance.' " Ibid., quoting Burton, 365 U. S., at 722. This is the task for the District Court on remand.
We close with this word of caution. It should be obvious that the exclusion of any person or group—all-Negro, all-Oriental, or all-white—from public facilities infringes upon the freedom of the individual to associate as he chooses. MR. JUSTICE DOUGLAS emphasized this in his dissent, joined by MR. JUSTICE MARSHALL, in Moose Lodge. He observed: "The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires." 407 U. S., at 179-180. The freedom to associate applies to the beliefs we share, and to those we consider reprehensible. It tends to produce the diversity of opinion that oils the machinery of democratic government and insures peaceful, orderly change. Because its exercise is largely dependent on the right to own or use property, Healy v. James, 408 U.S. 169, 181-183 (1972), any denial of access to public facilities must withstand close scrutiny and be carefully circumscribed. Certainly, a person's mere membership in an organization which possesses a discriminatory admissions policy would not alone be ground for his exclusion from public facilities. Having said this, however, we must also be aware that the very exercise of the freedom to associate by some may serve to infringe that freedom for others. Invidious discrimination takes its own toll on the freedom to associate, and it is not subject to affirmative constitutional protection when it involves state action. Norwood v. Harrison, 413 U. S., at 470.
The judgment of the Court of Appeals is therefore reversed in part. The case is remanded to that court
It is so ordered.
MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
Although I am in general agreement with the views expressed in my Brother WHITE's opinion, I wish to address certain other considerations which I believe should govern appellate review of the order entered by the District Court in this case. That court, which has an unfortunately longstanding and by now intimate familiarity with the problems presented in this case, issued the supplemental relief at issue here in response to a motion by petitioners bringing to its attention the practice of the city of Montgomery of allowing private schools and clubs with racially discriminatory admissions policies or with segregated memberships to use football facilities maintained at city expense. For all that appears in the record, this practice, and the related practice of allowing private segregated schools and clubs to use baseball fields, basketball courts, and athletic equipment maintained and purchased at city expense, were the only problems before the District Court and the only problems intended to be cured by its supplemental order.
Both the Court of Appeals and this Court, rather than limiting their review of the order in conformity with its intended scope, have sought to project the order to a wide variety of problems not before the District Court— including so-called nonexclusive access by private school groups or nonschool organizations to zoos, museums, parks, nature walks, and other similar municipal facilities —and to review the order as so projected.
By rendering an advisory opinion on matters never presented to the District Court, the Court of Appeals
Since I find the District Court's order a permissible and appropriate remedy for the instances of unconstitutional state action brought to its attention, I would sustain and reinstate its order in its entirety.
MR. JUSTICE BRENNAN, concurring in the judgment.
The Court today affirms the Court of Appeals' judgment insofar as it affirmed paragraphs 1 and 2 of the District Court's order, ante, at 563-564, n. 6, as applied to enjoin respondents from permitting private segregated school groups to make "exclusive use" of Montgomery's recreational facilities. Unlike the Court, I do not think that remand is required for a determination whether certain "nonexclusive uses" by segregated school groups should also be proscribed, for I would also sustain paragraphs 1 and 2 insofar as they enjoin any school-sponsored or school-directed uses of the city recreational facilities that enable private segregated schools to duplicate public school operations at public expense.
Norwood v. Harrison, 413 U.S. 455 (1973), struck down a state program which loaned textbooks to students without regard to whether the students attended private schools with racially discriminatory policies. Finding that free textbooks, like tuition grants to private school students, were a "form of financial assistance inuring to the benefit of the private schools themselves," id., at 464,
Whether it is necessary to go even further and enjoin all school-sponsored and school-directed nonexclusive uses of municipal recreational facilities—as would my Brothers WHITE and DOUGLAS—is a question I would have the District Judge decide on remand. Private segregated schools are not likely to maintain their own zoos, museums, or nature walks. Consequently, permitting segregated schools to take their students on field trips to city facilities of that kind would not result in a direct financial benefit to the schools themselves. An injunction against use by segregated schools of such city facilities would be appropriate, in my view, only if the District Court should find that the relief is necessary to insure full effectuation of the Montgomery desegregation decrees.
I agree with the Court's vacation of the Court of Appeals' judgment reversing paragraphs 3 and 4 of the District Court's order relating to segregated nonschool groups,
Surely, respondents' failure to extirpate "enclaves of segregation" created by "exclusive use" of city recreational facilities by private nonschool groups is no less a violation of the city's affirmative duty to desegregate the parks than its proved failure to eliminate "enclaves" created by the "exclusive use" of such facilities by school groups. Thus, unlike the Court, I see no reason for deferring an immediate expression on the significance of the city's involvement in the private discrimination of the nonschool groups, see ante, at 574, pending a more fully developed factual record. The justifications for finding that "exclusive use" by school groups violated the 1959 parks desegregation order plainly also require that, if private nonschool groups are in fact making "exclusive use" of municipal facilities, these uses, too, be found to violate the 1959 decree. In that circumstance, the unconstitutional "state action" of the respondents consists of their continuing racially discriminatory policies and practices that frustrate and impede the dismantlement of Montgomery's de jure segregated parks.
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS joins, concurring in the judgment.
I concur in the Court's judgment except that I would sustain the District Court not only to the extent the Court of Appeals affirmed its judgment but also insofar as it would bar the use of city-owned recreation facilities by students from segregated schools for events or occasions that are part of the school curriculum or organized and arranged by the school as part of its own program. I see no difference of substance between this type of use and the exclusive use that the majority agrees may not be permitted consistent with the Equal Protection Clause.
Within days after petitioners filed their suit, the city authorities, by resolution effective January 1, 1959, closed all the city's recreational parks, athletic fields, swimming facilities, and playgrounds, to all persons, white and black, and did not purport officially to reopen them until 1965. The city continued, however, to own and maintain them.
The agreement was approved by the District Court on January 29, 1971. Jurisdiction, however, was "specifically retained," and the defendants were ordered to file a written progress report every six months.
"1. That the City of Montgomery, Alabama's policy and practice of permitting the use of city owned or operated recreational facilities by any private school, or private school affiliated group, which school or group is racially segregated or which has a racially discriminatory admissions policy be and the same is hereby declared unconstitutional.
"2. That said City of Montgomery, Alabama, its officers, agents, servants, employees, and those acting in concert with it, be and each is hereby enjoined from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy.
"3. That said City of Montgomery, Alabama's policy and practice of permitting the use of city owned or operated recreational facilities by any private group, club or organization which has a racially discriminatory admissions policy be and the same is hereby declared unconstitutional.
"4. That said City of Montgomery, Alabama, its officers, agents, servants, employees and those acting in concert with it, be and each is hereby enjoined from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy." 337 F. Supp., at 26.
It is by no means apparent, as our Brother BRENNAN correctly notes, which uses of city facilities in common with others would have "a significant tendency to facilitate, reinforce, and support private discrimination." Norwood v. Harrison, 413 U.S. 455, 466 (1973). Moreover, we are not prepared, at this juncture and on this record, to assume the standing of these plaintiffs to claim relief against certain nonexclusive uses by private school groups. The plaintiffs in Norwood were parties to a school desegregation order and the relief they sought was directly related to the concrete injury they suffered. Here, the plaintiffs were parties to an action desegregating the city parks and recreational facilities. Without a properly developed record, it is not clear that every nonexclusive use of city facilities by school groups, unlike their exclusive use, would result in cognizable injury to these plaintiffs. The District Court does not have carte blanche authority to administer city facilities simply because there is past or present discrimination. The usual prudential tenets limiting the exercise of judicial power must be observed in this case as in any other.