MR. JUSTICE BLACK delivered the opinion of the Court.
In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District
Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to "deny to any person within its jurisdiction the equal protection
Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied
Although petitioners cite a number of our previous cases, the only two which even plausibly support their argument are Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964), and Reitman v. Mulkey, 387 U.S. 369 (1967). For the reasons that follow, however, neither case leads us to reverse the judgment here.
A. In Griffin the public schools of Prince Edward County, Virginia, were closed under authority of state and county law, and so-called "private schools" were set up in their place to avoid a court desegregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the "private schools" were open to whites only and these schools were in fact run by a practical partnership
B. Petitioners also claim that Jackson's closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such "encouragement" is prohibited by Reitman v. Mulkey, supra.
In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accepted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U. S., at 376-378, 380-381.
In the first place there are no findings here about any state "encouragement" of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners' argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant
Petitioners have also argued that respondents' action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130 (1810), where the Court declined to set aside the Georgia Legislature's sale of lands on the theory that its members were corruptly motivated in passing the bill.
A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O'Brien, 391 U.S. 367, 383 (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming
It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board, supra; Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960). But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated "private" academies. And in Gomillion the Alabama Legislature's gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites.
Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552 (1896), argued strongly that the purpose of the Thirteenth Amendment was not only to outlaw slavery but also all of its "badges and incidents." This broad reading of the amendment was affirmed in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The denial of the right of Negroes to swim in pools with white people is said to be a "badge or incident" of slavery. Consequently, the argument seems to run, this Court should declare that the city's closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to its history. Establishing
But Congress has passed no law under this power to regulate a city's opening or closing of swimming pools or other recreational facilities.
It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here.
The judgment is
MR. CHIEF JUSTICE BURGER, concurring.
I join the opinion of MR. JUSTICE BLACK, but add a brief comment.
The elimination of any needed or useful public accommodation
We are, of course, not dealing with the wisdom or desirability of public swimming pools; we are asked to hold on a very meager record that the Constitution requires that public swimming pools, once opened, may not be closed. But all that is good is not commanded by the Constitution and all that is bad is not forbidden by it. We would do a grave disservice, both to elected officials and to the public, were we to require that every decision of local governments to terminate a desirable service be subjected to a microscopic scrutiny for forbidden motives rendering the decision unconstitutional.
MR. JUSTICE BLACKMUN, concurring.
I, too, join MR. JUSTICE BLACK'S opinion and the judgment of the Court.
Cases such as this are "hard" cases for there is much to be said on each side. In isolation this litigation may
The dissent of MR. JUSTICE WHITE rests on a conviction that the closing of the Jackson pools was racially motivated, at least in part, and that municipal action so motivated is not to be tolerated. That dissent builds to its conclusion with a detailed review of the city's and the State's official attitudes of past years.
MR. JUSTICE BLACK'S opinion stresses, on the other hand, the facially equal effect upon all citizens of the decision to discontinue the pools. It also emphasizes the difficulty and undesirability of resting any constitutional decision upon what is claimed to be legislative motivation.
I remain impressed with the following factors: (1) No other municipal recreational facility in the city of Jackson has been discontinued. Indeed, every other service— parks, auditoriums, golf courses, zoo—that once was segregated, has been continued and operates on a nonsegregated basis. One must concede that this was effectuated initially under pressure of the 1962 declaratory judgment of the federal court. (2) The pools are not part of the city's educational system. They are a general municipal service of the nice-to-have but not essential variety, and they are a service, perhaps a luxury, not enjoyed by many communities. (3) The pools had operated at a deficit. It was the judgment of the city officials that these deficits would increase. (4) I cannot read into the closing of the pools an official expression of inferiority toward black citizens, as MR. JUSTICE WHITE and those who join him repetitively assert, post, at 240-241, 266, and 268, and certainly on this record I cannot perceive this to be a "fact" or anything other than speculation. Furthermore, the alleged deterrent to relief, said to exist because of the risk of losing other public facilities, post, at 269,
There are, of course, opposing considerations enumerated in the two dissenting opinions. As my Brothers BLACK, DOUGLAS, and WHITE all point out, however, the Court's past cases do not precisely control this one, and the present case, if reversed, would take us farther than any before. On balance, in the light of the factors I have listed above, my judgment is that this is neither the time nor the occasion to be punitive toward Jackson for its past constitutional sins of segregation. On the record as presented to us in this case, I therefore vote to affirm.
Jackson, Mississippi, closed all the swimming pools owned and operated by it, following a judgment of the Court of Appeals in Clark v. Thompson, 313 F.2d 637, which affirmed the District Court's grant of a declaratory judgment that three Negroes were entitled to the desegregated use of the city's swimming pools. 206 F.Supp. 539. No municipal swimming facilities have been opened to any citizen of either race since that time; and the city apparently does not intend to reopen the pools on an integrated basis.
That program is not, however, permissible if it denies rights created or protected by the Constitution. Buchanan v. Warley, 245 U.S. 60, 81. I think that the plan has that constitutional defect; and that is the burden of this dissent.
Hunter v. Erickson, 393 U.S. 385, Reitman v. Mulkey, 387 U.S. 369, and Griffin v. County School Board, 377 U.S. 218, do not precisely control the present case. They are different because there state action perpetuated ongoing regimes of racial discrimination in which the State was implicated.
In Griffin, the State closed public schools in one county only, not in the others, and meanwhile contributed to the support of private segregated white schools. 377 U. S., at 232. That, of course, was a continuation of segregation in another form. In Hunter a city passed a housing law which provided that before an ordinance regulating the sale or lease of realty on the basis of race could become effective it had to be approved by a majority vote. Thus the protection of minority interests became much more difficult.
Whether, in the closing of all municipal swimming pools in Jackson, Mississippi, any artifices and devices were employed as in Burton v. Wilmington Parking Authority, 365 U.S. 715, to make the appearance not conform to the reality, is not shown by this record. Under Burton, if the State has a continuing connection with a swimming pool, it becomes a public facility and the State is under obligation to see that the operators meet all Fourteenth Amendment responsibilities. 365 U. S., at 725. We may not reverse under Burton because we do not know what the relevant facts are.
Closer in point is Bush v. Orleans Parish School Board, 187 F.Supp. 42, aff'd, 365 U.S. 569. Louisiana, as part of her strategy to avoid a desegregated public school system, authorized the Governor to close any public school ordered to be integrated. The three-judge District Court relying on Cooper v. Aaron, 358 U.S. 1, 17, held that the Act was unconstitutional and enjoined the Governor from enforcing it. The District Court decision was so clearly correct that we wrote no opinion when we affirmed the three-judge court. While there were other Louisiana laws also held unconstitutional as perpetuating a state segregated school system, the one giving the Governor the right to close any public school ordered integrated seems indistinguishable from this one.
My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides:
Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. United States v. Guest, 383 U.S. 745, 758. Such is also the right to marry. Loving v. Virginia, 388 U.S. 1, 12. The "rights" retained by the people within the meaning of the Ninth Amendment may be related to those "rights" which are enumerated in the Constitution. Thus the Fourth Amendment speaks of the "right of the people to be secure in their persons, houses, papers, and effects" and protects it by well-known procedural devices. But we have held that that enumerated "right" also has other facets commonly summarized in the concept of privacy. Griswold v. Connecticut, 381 U.S. 479.
There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of
A State may not, of course, interfere with interstate commerce; and to the extent that public services are rendered by interstate agencies the State by reason of the Supremacy Clause is powerless to escape. The right to vote is a civil right guaranteed by the Constitution as we recently re-emphasized in Oregon v. Mitchell, 400 U.S. 112. In Anderson v. Martin, 375 U.S. 399, the State required designation on the ballots of every candidate's race. We said:
A constitutional right cannot be so burdened. We stated in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, that: "One's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." And we added in Lucas v. Colorado General Assembly, 377 U.S. 713, 736-737, "A citizen's
In determining what municipal services may not be abolished the Court of Appeals drew the line between "an essential public function" and other public functions. Whether state constitutions draw that line is not our concern. Certainly there are no federal constitutional provisions which make that distinction.
Closing of the pools probably works a greater hardship on the poor than on the rich; and it may work greater hardship on poor Negroes than on poor whites, a matter on which we have no light. Closing of the pools was at least in part racially motivated. And, as stated by the dissenters in the Court of Appeals:
That view has strong footing in our decisions. "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States." Loving v. Virginia, 388 U. S., at 10. Cf. McLaughlin v. Florida, 379 U.S. 184, 196. When the effect is "to chill the assertion of constitutional rights by penalizing those who choose to exercise them" (United States v. Jackson, 390 U.S. 570, 581) that state action is "patently unconstitutional."
While Chief Justice Marshall intimated in Fletcher v. Peck, 6 Cranch 87, 130, that the motives which dominate or influence legislators in enacting laws are not fit for judicial inquiry, we do look closely at the thrust of a law to determine whether in purpose or effect there was an invasion of constitutional rights. See Epperson v. Arkansas, 393 U.S. 97, 109; Griffin v. County School Board, 377 U. S., at 231. A candidate may be defeated because the voters are bigots. A racial issue may inflame a community causing it to vote a humane measure down. The federal judiciary cannot become involved in those kinds of controversies. The question for the federal judiciary is not what the motive was, but what the consequences are.
In Reitman an active housing program had been racially dominated and then controlled by a state law ending discrimination. But in time the State reversed its policy and lifted the anti-discrimination controls. Thus it launched or at least tolerated a regime of racially discriminatory housing.
We are told that the history of this episode shows the "steel-hard, inflexible, undeviating official policy of segregation" in Mississippi. United States v. City of Jackson, 318 F.2d 1, 5.
I believe that freedom from discrimination based on race, creed, or color has become by reason of the Thirteenth, Fourteenth, and Fifteenth Amendments one of the "enumerated rights" under the Ninth Amendment that may not be voted up or voted down.
Much has been written concerning the Ninth Amendment including the suggestion that the rights there secured include "rights of natural endowment."
Mr. Justice Goldberg, concurring in Griswold v. Connecticut, supra, at 492, said:
"The Fourteenth Amendment and the two escorting amendments establish a principle of absolute equality, an equality which is denied by racial separation or segregation because the separation in truth consecrates a hierarchy of racial relations, and hence permits inequality."
The Solicitor General says:
I conclude that though a State may discontinue any of its municipal services—such as schools, parks, pools, athletic fields, and the like—it may not do so for the purpose of perpetuating or installing apartheid or because it finds life in a multi-racial community difficult or unpleasant. If that is its reason, then abolition of a designated public service becomes a device for perpetuating a segregated way of life. That a State may not do.
As MR. JUSTICE BRENNAN said in Evans v. Abney, 396 U.S. 435, 453 (dissenting), where a State abandoned a park to avoid integration:
Hunter and Reitman went to the verge of that problem. Bush went the whole way. We should reaffirm what our summary affirmance of Bush plainly implied.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.
I agree with the majority that the central purpose of the Fourteenth Amendment is to protect Negroes from invidious discrimination. Consistent with this view, I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause. Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order.
Let us assume a city has been maintaining segregated swimming pools and is ordered to desegregate them. Its express response is an official resolution declaring desegregation to be contrary to the city's policy and ordering the facilities closed rather than continued in service on a desegregated basis. To me it is beyond cavil that on such facts the city is adhering to an unconstitutional policy and is implementing it by abandoning the facilities. It will not do in such circumstances to say that whites and Negroes are being treated alike because both are denied use of public services. The fact is that closing the pools is an expression of official policy that Negroes
The case before us is little, if any, different from the case just described. Jackson, Mississippi, closed its swimming pools when a district judge struck down the city's tradition of segregation in municipal services and made clear his expectation that public facilities would be integrated. The circumstances surrounding this action and the absence of other credible reasons for the closings leave little doubt that shutting down the pools was nothing more or less than a most effective expression of official policy that Negroes and whites must not be permitted to mingle together when using the services provided by the city.
I am quite unpersuaded by the majority's assertion that it is impermissible to impeach the otherwise valid act of closing municipal swimming pools by resort to evidence of invidious purpose or motive. Congress has long provided civil and criminal remedies for a variety of official and private conduct. In various situations these statutes and our interpretations of them provide that such conduct falls within the federal proscription only upon proof of forbidden racial motive or animus. An otherwise valid refusal to contract the sale of real estate falls within the ban of 42 U. S. C. § 1982 upon proof that the refusal was racially motivated. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). A restaurant's
In another decision last week, we reversed a three-judge court ruling in a suit under § 1983 that the multi-member apportionment plan there involved operated to minimize or dilute the voting strength of Negroes in an identifiable ghetto area. However, in an opinion joined by four members of the majority in the instant case, we cautioned that:
Further, motivation analysis has assumed great importance in suits under 42 U. S. C. § 1983 as a result of this Court's opinions in Younger v. Harris, 401 U.S. 37 (1971), and its companion cases. There the Court held that even though a state criminal prosecution was pending, federal relief would be appropriate on allegations in a complaint to the effect that state officials were utilizing state criminal statutes in bad faith, with no hope of obtaining valid convictions under them, in an effort to harass individuals in the exercise of their constitutional rights. Obviously, in order to determine its jurisdiction in each such case, a federal court must examine and make a determination of the same kind of official motivation which the Court today holds unreviewable.
In thus pursuing remedies under the federal civil rights laws, as petitioners are doing under §§ 1981 and 1983 here, Negro plaintiffs should have every right to prove that the action of the city officials was motivated by nothing but racial considerations. In examining their contentions, it will be helpful to re-create the context in which this case arises.
In May 1954, this Court held that "[s]eparate educational facilities are inherently unequal." Brown v. Board of Education, 347 U.S. 483, 495. In a series of opinions following closely in time, the Court emphasized the universality and permanence of the principle that segregated public facilities of any kind were no longer permissible under the Fourteenth Amendment.
At the beginning of the October 1955 Term, the Court resolved any possible ambiguity about the action taken in Muir. In a pair of summary decisions, the Court made it clear that state-sanctioned segregation in the operation of public recreational facilities was prohibited. Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955), was a summary affirmance of a decision by the Court of Appeals for the Fourth Circuit that officials of the State and city could not enforce a policy of racial segregation at public beaches and bathhouses. On the same day, the Court confirmed that use of a public golf course could not be denied to any person on account of his race. Holmes v. City of Atlanta, 350 U.S. 879 (1955).
The lower federal courts played a very important role in this ongoing process. For example, in June 1956,
Browder v. Gayle, 142 F.Supp. 707, 717 (MD Ala.). Again this Court affirmed summarily, citing Brown, Dawson, and Holmes. 352 U.S. 903 (1956). Some public officials remained unconvinced. In early 1958, the Court of Appeals for the Fifth Circuit summarily rejected as without merit an appeal by the New Orleans City Park Improvement Association from a summary judgment including a permanent injunction prohibiting the Association, a municipal corporation, from denying Negroes the use of the facilities of the New Orleans City Park. New Orleans City Park Improvement Assn. v. Detiege, 252 F.2d 122 (CA5 1958). When the Association took a further appeal to this Court, the judgment was affirmed in a one-line opinion. New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54 (1958). Other decisions in this Court and the lower federal courts demonstrated the pervasive idea that officially segregated public facilities were not equal.
The city of Jackson was one of many places where the consistent line of decisions following from Brown had little or no effect.
This was nearly nine years after Brown and more than seven years after Dawson and Holmes.
The suit respondents refer to was instituted in 1962 as a class action by three Negro plaintiffs who alleged that some city facilities—parks, libraries, zoo, golf courses, playgrounds, auditoriums, and other recreational complexes—were closed to them because of their race. The defendants were Jackson city officials, including Mayor Allen C. Thompson and Director of Parks and Recreation George Kurts, both respondents in the present case. The plaintiffs in that suit were successful. The District Court's opinion began by stating that Jackson
Among the District Court's conclusions of law were the following: (1) that the suit was not a proper class action since the Negro plaintiffs had failed to show that their interests were not antagonistic to or incompatible with those of the purported class;
As the city has stressed in its brief here, it did not appeal from this judgment, which was entered in May 1962. The Negro plaintiffs, however, did appeal, claiming that the relief afforded was inadequate. The Court of Appeals for the Fifth Circuit affirmed per curiam, 313 F.2d 637 (CA5 1963). On December 16, 1963, this Court denied certiorari, 375 U.S. 951.
It must be noted here that none of Jackson's public recreational facilities was desegregated until after the appellate proceedings in Clark v. Thompson were fully concluded.
A year passed while the appeals in Clark v. Thompson were pending, but the city's official attitude did not change. On May 24, 1963, the Jackson Daily News reported that "Governor Ross Barnett today commended Mayor Thompson for his pledge to maintain Jackson's present separation of the races." App. 15. On the next day, the same newspaper carried a front page article stating that "Thompson said neither agitators nor President Kennedy will change the determination of Jackson to retain segregation." App. 16.
During May and June 1963, the Negro citizens of Jackson organized to present their grievances to city officials. On May 27, a committee representing the Negro community met with the mayor and two city commissioners. Among the grievances presented was a specific demand that the city desegregate public facilities, including the city-operated parks and swimming pools.
On the day following this meeting, the Jackson Daily News quoted the mayor as saying:
On May 30, 1963, the same paper reported that the mayor had announced that "[p]ublic swimming pools would not be opened on schedule this year due to some minor water difficulty." App. 5.
The city at this time operated five swimming facilities on a segregated basis: the Livingston Lake swimming facility, in reality a lake with beach facilities, at Livingston Park; a swimming pool in Battlefield Park; a swimming pool and a wading pool in Riverside Park; a pool that the city leased from the YMCA in Leavell Woods Park; a swimming pool and a wading pool for Negroes in College Park.
From the time of the announcement of "minor water difficulty" at the end of May 1963, none of these swimming facilities has operated under public aegis. The city canceled its lease on the Leavell Woods pool, and it has since been operated on a "whites only" basis by its owner, the YMCA, apparently without city involvement.
In August 1965, petitioners brought the present class action in the Southern District of Mississippi. They challenged the closing of the pools and racial segregation in the city jail, seeking both declaratory and injunctive relief. The case was tried on affidavits and stipulations and submitted to the District Judge. In addition to the evidence summarized above, Mayor Thompson filed an affidavit which stated:
Parks Director Kurts filed a similar affidavit, averring:
Based on these affidavits, the District Judge found as a fact that the decision to close the pools was made after Clark v. Thompson and that the pools could not be operated safely or economically on an integrated basis. Accordingly, he held that petitioners were not entitled to any relief and dismissed the complaint. On appeal, a panel of the Court of Appeals for the Fifth Circuit affirmed. Palmer v. Thompson, 391 F.2d 324 (1967). On rehearing en banc, the Court of Appeals, by a seven-to-six vote, again affirmed dismissal of the complaint. 419 F.2d 1222 (1969). Both courts below rejected petitioners' argument that because the pools were closed to avoid court orders that would require their desegregation, the city's action was a denial of equal protection. We granted certiorari to decide that issue, 397 U.S. 1035 (1970), and for the reasons that follow I would reverse.
There is no dispute that the closing of the pools constituted state action. Similarly, there can be no disagreement that the desegregation ruling in Clark v. Thompson was the event that precipitated the city's decision to cease furnishing public swimming facilities to its citizens.
Predictions such as this have been presented here before. One year after the District Court's opinion in Clark v. Thompson, this Court reviewed a case in which municipal officials had made the same assumption and had acted upon it. In Memphis, Tennessee, Brown and the cases discussed above had little effect until May 1960, when Negro residents sued for declaratory and injunctive relief directing immediate desegregation of the municipal parks and other city-owned and city-operated recreational facilities. The city agreed that the Fourteenth Amendment required all facilities to be opened to citizens regardless of race and that the majority of city-run facilities remained segregated at the time of suit, six years after Brown. It was nevertheless asserted that desegregation was under way and that further delay in achieving full desegregation was the wise and proper course. Both of the lower courts denied plaintiffs relief, the net result being an order directing the city to submit
This Court unanimously rejected further delay in integrating these facilities. Watson v. City of Memphis, 373 U.S. 526 (1963). It did so although the city asserted its good-faith attempt to comply with the Constitution and its honest belief that gradual desegregation, facility by facility, was necessary to prevent interracial strife. The Court's "compelling answer to this contention [was] that constitutional rights may not be denied simply because of hostility to their assertion or exercise." Id., at 535. See also Buchanan v. Warley, 245 U.S. 60, 81 (1917); Brown v. Board of Education, 349 U.S. 294, 300 (1955); Cooper v. Aaron, 358 U. S., at 16; Wright v. Georgia, 373 U.S. 284, 291-293 (1963). The record in the case was reviewed in some detail. I quote at length because of the pertinence of the Court's observations.
So it is in this case. The record before us does not include live testimony. It was stipulated by the parties after the District Judge had entered his order denying relief that the "parties had an opportunity to offer any and all evidence desired." The official affidavits filed were even less compelling than the evidence presented by city officials in Watson. The conclusion of city officials that integrated pools would not be "economical" was no more than "personal speculation." The city made no showing that integrated operation would increase the annual loss of at least $11,700—a loss that, prior to 1963, the city purposely accepted for the benefit of its citizens as long as segregated facilities could be maintained. The prediction that the pools could not be operated safely if they were desegregated was nothing more than a "vague disquietude." In Watson, the record reflected that the parks commissioner had received a number of anonymous phone calls and letters presumably threatening violence, and that the chief of police had testified about troubles in connection with a sit-in demonstration and desegregation of the city buses. Here, Mayor Thompson's
With all due respect, I am quite unable to agree with the majority's assertion, ante, at 225, that there is "substantial evidence in the record" to support the conclusion of the lower courts that the pools could not be operated safely and economically on an integrated basis. Officials may take effective action to control violence or to prevent it when it is reasonably imminent. But the anticipation of violence in this case rested only on unsupported assertion, to which the permanent closing of swimming pools was a wholly unjustified response. The city seems to fear that even if some or all of the pools suffered a sharp decline in revenues from the levels pertaining before 1963 because Negro and white neighbors refused to use integrated facilities, the city could never close the pools for that reason. I need only observe
Watson counsels us to reject the vague speculation that the citizens of Jackson will not obey the law, as well as the correlative assumption that they would prefer no public pools to pools open to all residents who come in peace. The argument based on economy is no more than a claim that a major portion of the city's population will not observe constitutional norms. The argument based on potential violence, as counsel for the city indicated at oral argument, unfortunately reflects the views of a few immoderates who purport to speak for the white population of the city of Jackson. Tr. of Oral Arg. 36. Perhaps it could have been presented, but there is no evidence now before us that there exists any group among the citizens of Jackson that would employ lawless violence to prevent use of swimming pools by Negroes and whites together. In my view, the Fourteenth Amendment does not permit any official act— whether in the form of open refusal to desegregate facilities that continue to operate, decisions to delay complete desegregation, or closure of facilities—to be predicated on so weak a reed. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply
I thus arrive at the question of whether closing public facilities to citizens of both races, whatever the reasons for such action, is a special kind of state action somehow insulated from scrutiny under the Fourteenth Amendment. As the opinions of the majority and MR. JUSTICE DOUGLAS show, most of our prior decisions, because of their facts, do not deal with this precise issue.
Bush v. Orleans Parish School Board, 187 F.Supp. 42 (ED La. 1960), aff'd, 365 U.S. 569 (1961), is relevant. In that case, a three-judge court declared unconstitutional a number of Louisiana statutes designed to avoid desegregation of the public schools in that State. Among the laws stricken down was a statute giving the Governor the right to close any school ordered to integrate, a statute giving the Governor the right to close all schools if one was integrated, and a statute giving the Governor
Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964), is perhaps distinguishable,
See also Gomillion v. Lightfoot, 364 U.S. 339, 346-348 (1960); Board of Education v. Allen, 392 U.S. 236, 243 (1968); Epperson v. Arkansas, 393 U.S. 97, 109 (1968); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205 (1970); Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv. L. Rev. 1887 (1970). Second,
The majority, conceding the relevance of the quoted passage from Griffin, states that the "focus in [both Griffin and Gomillion] was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did." Respondents agree, and argue further that the present record shows only that Jackson has closed facilities that were once open on a segregated basis and that the closing operates equally on Negroes and whites alike.
But if effect was all that the Court considered relevant in Griffin, there was no need to mention underlying purpose and to stress the delay that took place in Virginia in implementing Brown.
State action predicated solely on opposition to a lawful court order to desegregate is a denial of equal protection of the laws. As Judge Wisdom said in dissent below, the argument that the closing of the pools operated equally on Negroes and whites "is a tired contention, one that has been overworked in civil rights cases." 419 F. 2d, at 1232 (dissenting opinion). It was made and rejected in Griffin. See, e. g., Brief of Respondent Board of Supervisors
Here, too, the reality is that the impact of the city's act falls on the minority. Quite apart from the question whether the white citizens of Jackson have a better chance to swim than do their Negro neighbors absent city pools, there are deep and troubling effects on the racial minority that should give us all pause. As stated at the outset of this opinion, by closing the pools solely because of the order to desegregate, the city is expressing its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility, though pools were long a feature of the city's segregated recreation program. But such an official position may not be enforced by designating certain pools for use by whites and others for the use of Negroes. Closing the pools without a colorable nondiscriminatory reason was every bit as much an official endorsement of
Moreover, this Court has carefully guarded the rights of Negroes to attack state-sanctioned segregation through the peaceful channels of the judicial process. This Court has recently discussed and analyzed various provisions of the Reconstruction civil rights statutes, and there is little need here to repeat anything more than the most recent observation that "[t]he approach of this Court . . . has been to `accord [these statutes] a sweep as broad as [their] language.' " Griffin v. Breckenridge, ante, p. 88, at 97.
It is evident that closing a public facility after a court has ordered its desegregation has an unfortunate impact on the minority considering initiation of further suits or filing complaints with the Attorney General. As Judge Wisdom said, "[T]he price of protest is high. Negroes . . . now know that they risk losing even segregated public facilities if they dare to protest . . . segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether . . . ." 419 F. 2d, at 1236 (dissenting opinion). It is difficult to measure the extent of this impact, but it is surely present and surely we should not ignore it. The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.
From what has been stated above, it is clear that the city's action in closing the pools because of opposition to the decision in Clark v. Thompson was "an exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race." McLaughlin v. Florida, 379 U.S. 184,
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE WHITE join, dissenting.
While I am in complete agreement with the opinions of JUSTICES DOUGLAS and WHITE, I am obliged to add a few words of my own.
First, the majority and concurring opinions' reliance on the "facially equal effect upon all citizens" of the decision to discontinue all public pools is misplaced. As long ago as 1948 in Shelley v. Kraemer, 334 U.S. 1, 22, this Court held:
Second, since Brown v. Board of Education, 347 U.S. 483 (1954), public schools and public recreational facilities such as swimming pools have received identical Fourteenth Amendment protection. Indeed, exactly one week after Brown I this Court remanded three cases in the same per curiam: Florida ex rel. Hawkins v. Board of Control of Florida; Tureaud v. Board of Supervisors; and Muir v. Louisville Park Theatrical Assn., 347 U.S. 971. The first two involved university education and the latter involved recreational facilities.
Even before Brown II, 349 U.S. 294 (1955), it was recognized as obvious that "racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bathhouse facilities, the use of which is entirely optional." Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386, 387 (CA4), aff'd per curiam, 350 U.S. 877 (1955). See also Department of Conservation & Development v. Tate, 231 F.2d 615 (CA4), cert. denied, 352 U.S. 838 (1956).
By effectively removing publicly owned swimming pools from the protection of the Fourteenth Amendment —at least if the pools are outside school buildings— the majority and concurring opinions turn the clock back 17 years. After losing a hard fought legal battle to
Finally, I cannot conceive why the writers of the concurring opinions believe that the city is "locked in" and must operate the pools no matter what the economic consequences. Certainly, I am not bound by any admission of an attorney at oral argument as to his version of the law. Equity courts have always had continuing supervisory powers over their decrees; and if a proper basis for closing the facilities—other than a conclusory statement about the projected human and thus economic consequences of desegregation—could be shown, swimming pools, as I imagine schools or even golf courses, could be closed.
"A. If the question is forever. If it was purely an economic problem, having nothing to do with race, or opposition to integration, they could handle that problem the way any community handles that problem, if it is purely an economic decision. But if it becomes a consideration of race, which creates the economic difficulties, then it seems to me that this Court in numerous decisions has answered that question. It answered it in Watson, it answered it in Brown, and it answered it in Green.
"Q. Well, this is in the premise of my question, for you to prevail here, this racial overtone, I will assume, you must concede must be present. Now suppose you prevail, and suppose they lose economically year after year by increasing amounts. My question is, are they locked in forever?
"A. If the question is, are they locked in forever because of racial problems which cause a rise in economic difficulties in operating the pool, my answer is that they would be locked in." Tr. of Oral Arg. 43-44.
"We again take judicial notice that the State of Mississippi has a steel-hard, inflexible, undeviating official policy of segregation. The policy is stated in its laws. It is rooted in custom. The segregation signs at the terminals in Jackson carry out that policy. The Jackson police add muscle, bone, and sinew to the signs." (Footnotes omitted.)
See also Singleton v. Jackson Municipal Separate School Dist., 348 F.2d 729 (CA5 1965); Singleton v. Jackson Municipal Separate School Dist., 355 F.2d 865 (CA5 1966); Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (CA5 1969), rev'd in part sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970); Singleton v. Jackson Municipal Separate School Dist., 426 F.2d 1364 (CA5), modified, 430 F.2d 368 (CA5 1970); Singleton v. Jackson Municipal Separate School Dist., 432 F.2d 927 (CA5 1970).
Second, even accepting the majority's characterization of public schools as "important," there is much in our previous decisions to contradict its implication that providing swimming pools and other public recreational facilities is not a significant state function. In Evans v. Newton, 382 U.S. 296, 302 (1966), the Court stated:
"A park . . . is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U.S. 526; and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment."
See also Evans v. Abney, 396 U.S. 435, 443-444, 445 (1970), where MR. JUSTICE BLACK, writing for the Court, stated:
"When a city park is destroyed because the Constitution requires it to be integrated, there is reason for everyone to be disheartened. We agree with petitioners that in such a case it is not enough to find that the state court's result was reached through the application of established principles of state law. No state law or act can prevail in the face of contrary federal law, and the federal courts must search out the fact and truth of any proceeding or transaction to determine if the Constitution has been violated.
"A second argument for petitioners stresses the similarities between this case and the case in which a city holds an absolute fee simple title to a public park and then closes that park of its own accord solely to avoid the effect of a prior court order directing that the park be integrated as the Fourteenth Amendment commands. Yet, assuming arguendo that the closing of the park would in those circumstances violate the Equal Protection Clause, that case would be clearly distinguishable from the case at bar because there it is the State and not a private party which is injecting the racially discriminatory motivation. In the case at bar there is not the slightest indication that any of the Georgia judges involved were motivated by racial animus or discriminatory intent of any sort in construing and enforcing Senator Bacon's will."
This was the inquiry made in Bush, and it led to striking down the statutes in question. We affirmed that ruling, and the record here is no less clear. And as the majority concedes, ante, at 221 n. 6, surely it is not irrelevant in considering the context in which Jackson's pools were closed, that a statute of the State of Mississippi, in effect since 1956, provides:
"That the entire executive branch of the government of the State of Mississippi, and of its subdivisions, and all persons responsible thereto, including the governor, the lieutenant governor, the heads of state departments, sheriffs, boards of supervisors, constables, mayors, boards of aldermen and other governing officials of municipalities by whatever name known . . . whether specifically named herein or not . . . shall give full force and effect in the performance of their official and political duties, to the Resolution of Interposition. . . and all of said members of the executive branch be and they are hereby . . . directed and required to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954 (347 U.S. 483), . . . and of May 31, 1955 (349 U.S. 294), . . . and to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government, any person employed by the federal government, any commission, board or agency of the federal government, or any subdivision of the federal government, and to prohibit, by any lawful, peaceful and constitutional means, the implementation of any orders, rules or regulations of any board, commission or agency of the federal government, based on the supposed authority of said Integration Decisions, to cause a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state." Miss. Code Ann. § 4065.3 (1957); see United States v. City of Jackson, 318 F.2d 1, 5-6 (CA5 1963) (judicial notice taken of this statute).