Kelley v. The Altheimer, Arkansas Public School District No. 22 Record on Appeal

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NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 
107 WEST 43 STREET + NEW YORK 36, N. Y. © JUdson 6-8397 

ARTHUR B. SPINGARN THURGOOD MARSHALL 
President Director ond Counsel 

WALTER WHITE ROBERT L. CARTER 
Secretary Assistant Counsel 

ALLAN KNIGHT CHALMERS ARNOLD DE MILLE 
Treasurer Press Relations 

BIAS AT PUBLIC PARK OUTLAWED March 18, 1955 

RICHMOND, VA,--The “separate but equal" doctrine which for many 

years has been the law and bible for the Southern courts for uphold- 

ing segregation took another beating this week, 

The U. S. Fourth Circuit Court of Appeals declared that racial 

segregation in public parks and recreational facilities is a viola- 

tion of the law and that it can no longer "be sustained as a proper 

exercise of the police power of the state," 

The ruling was rendered Monday, March 1h, in the Dawson and 

Lonesome cases involving Jim Crow swimming and beach facilities near 

Baltimore and brought against the city and the state by attorneys 

for NAACP Legal Defense and Educational Fund. 

The three judges, Chief Judge John J. Parker of Charlotte, Ne Ce, 

Judge Morris A, Soper of Baltimore and Judge Armistead M. Dobie of 

Charlotteville, Va. unanimously agreed that the U. S. Supreme Court 

May 17th decision outlawing segregation in public schools "swept 

away"the authority of the Plessy v. Ferguson "separate but equal" 

law of the 19th century, Robert L. Carter, first Assistant Counsel, 

NAACP Legal Defense, argued the appeal in behalf of the Negro 

litigants. 

It is obvious that segregation cannot be justified as a means 

to preserve the public peace merely because the tangible facilities 

furnished to one are equal to those furnished to the others, the 

judges said, 

They contend that the Supreme Court in the School Segregation 

Cases expressed the opinion that "it must consider" public education 

in the light of its full development and its present place in 

American life, 

"With this in mind, it is obvious that racial segregation in 

recreational activities can no longer be sustained as the proper 

exercise of the police power of the state," 



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The two cases emanated from district courts in Baltimore which 

upheld the Jim Crow policies at the public beaches and bathhouses 

as operated by public authorities, 

The Dawson case was brought against the City of Baltimore and 

the operators of the city-owned public beach at Fort Smallwood Park 

in 1950. Robert Dawson and a group of Negroes were denied the use 

of the beach because of their race but despite a court order of 

March 2, 1951 to cease discriminating against Negroes, the authori- 

ties set aside certain days for the beach to be used by each racial 

group. 

In 1952 a segregated beach for Negroes was authorized and con- 

structed. Despite protests, Negroes were refused the use of the 

other beach on the ground that the law called for equality of phy- 

sical facilities, 

On May 27, 1954, ten days after the school segregation decision, 

a motion for judgment was filed by NAACP Legal Defense attorneys 

based on the fact that segregation was a violation of the federal 

Constitution. On July 27, the court denied the motion on the grounds 

that the May 17th decision did not outlaw segregation in recreational 

facilities, 

The Lonesome suit, filed on August 8, 1952, sought an injunction 

against the state of Maryland to cease its Jim Crow policies on the 

beaches at the Sendy Point State Park on the grounds that the beach 

operated for Negroes did not " afford complete and wholesome 

recreation." 

Park officials claimed that the facilities at the two beaches 

were equal. On June 2, 1953, the court issued a preliminary injunc- 

tion disputing this fact but five weeks later reversed itself 

claiming that the facilities were equal due to certain improvements 

made at the Negro beach, 

On December 20, 1954, attorneys for the Negroes filed a brief 

consolidating both cases in the Fourth Circuit Court of Appeals. 

The lower court's decision should be reversed, they argued, because 

the opinions of the courts were based on the outdated and false 

"separate but equal doctrine, The appeal was argued at Charlotte, 

N. C,, January 11, 1955, 



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In ruling that segregation has no place in recreational 

facilities the three circuit court judges cited two other cases 

decided by the Supreme Court and lmocking out the practice of segre- 

gation. ". . . we should keep in mind the idea of equality before 

the law which characterizes our institutions," the judges asserted. 

Both Judges. Parker and Dobie participated in two of the 

original School Segregation Cases. Judge Parker voted for segrega- 

tion in the South Carolina case and Judge Dobie did the same in the 

Virginia case, 

Legal Defense attorneys for the Negroes, other than Carter, 

are Linwood Koger, Jr., and Tucker RK. Dearing, bo th of Baltimore, 

and Thurgood Marshall, Director-Counsel and Jack Greenberg, Assis- 

tant Counsel, both of Legal Defense in New York. 

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FEDERAL COURT DISMISSES LEVITT DISCRIMINATION CASE 

PHILADELPHIA, PA.--NAACP Legal Defense and Educational Fund 

lawyers lost the first round in their legal battle to have the 

courts restrain builder William Levitt from discriminating against 

Negroes in the sales of private homes at the modern community of 

Levittown in Bucks County, Pa. 

Chief Judge William H, Kirkpatrick ruled Wednesday, March 16, 

that the suit against Levitt, the world's biggest builder of modern 

homes, be dismissed on the grounds that Congress did not specifically 

say that federal officials operating FHA and VA programs should have 

the duty to order the end of segregation in such federally~aided 

homes. 

"Neither the FHA nor the VA has been charged by Congress with 

the duty of preventing discrimination in the sales of housing pro- 

ject properties," Judge Kirkpatrick said in a five page opinion 

dismissing the case, 

The suit against Levitt and Sons, Inc. was filed on January 13 

with the U. S, District Court for the Eastern District of Pennsyl- 

vania in behalf of six Negro veterans who were turned down when they 

tried to buy homes in the 16,000 private home development outside 

of Philadelphia, The petition sought to restrain Levitt from refus- 

ing to sell to Negroes solely because of race or color, as long as 

he uses FHA and VA mortgage assistance or approval, 



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Named in the suit with Levitt are Norman P. Mason, Commissioner 

of the FHA; William A. Kelley, Director of the Philadelphia Insuring 

Office of the FHA; Harvey V. Higley, Administrator of Veterans 

Affairs, and Charles E. Engard, Director of the Loan Guarantee 

Section of the Philadelphia Regional Office of the VA. 

Levitt and the federal officials filed motions for dismissal 

with the court on the grounds that the federal court has no juris- 

diction over the case, Arguments on the motion were heard on 

February 23, 

Judge Kirkpatrick in his dismissal opinion said that whether 

the Negroes' rights were violated is not decided at this time, "the 

only question is whether the plaintiffs! case can be maintained in 

this court," 

Legal Defense attorneys had accused Levitt of being aided by 

the government to the point where his action could be interpreted 

as the action of the federal government, 

"All of these do not, however, in my opinion, result in making 

Levitt and Sons, Inc, of New York, the government of the United 

States or a branch or agency of it, nor do they make the government 

of the United States the builder or developer of the Levittown 

project," Judge Kirkpatrick proclaimed, 

Legal Defense lawyers argued further that Levitt, as developer 

of Levittown, is subject to the control and supervision of various 

officials and agencies of the Commonwealth of Pennsylvania in con- 

structing schools, sewage, water mains, etc. and, in effect, a 

municipality of Pennsylvania and a part of the state. Judge 

Kirkpatrick dismissed this point by saying "it is too far fetched 

to require discussion," 

Legal Defense attorneys do not consider the dismissal a defeat 

in their case against Levitt, Mrs, Constance Baker Motley, Associate 

Counsel of NAACP Legal Defense and Educational Fund said the case 

will be appealed, Other attorneys for the Negroes are Thurgood 

Marshall, Director Counsel of Legal Defense, Walter A. Gay, Jr, and 

David £, Pinsky of Philadelphia, 

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