Greenberg, Jack, 1961-1983 - 20 of 56

    Inited (Emtrt of App^ala
Eighth Circuit

No. 14,664— Civil

CITY OF KANSAS CITY, MISSOURI, et al.,
Appellants, 

vs.

ESTHER WILLIAMS, et al,
Appellees.

No. 14,666— Civil

ESTHER WILLIAMS, et al., 

vs.
Appellants,

CITY OF KANSAS CITY, MISSOURI, et al.,
Appellees.

A ppeal and Cross A ppeal F rom the D istrict Court op the 
U nited States por the W estern District of Missouri, 

W estern Division

BRIEF FOR APPELLEES AND CROSS­
APPELLANTS

Almer T. Adair,
Carl R. J ohnson,
R obert L. Carter, 
T hurgood Marshall, 

Counsel for Appellees-Appellants.
David E. P insky,

of Counsel.



I N D E X

PAGE

Statement of the C ase ...................................................  1
Points and Authorities ........................................   3
Argument—No. 14,664 .................................................  5

I. The State has no power to impose distinctions 
among its citizens with respect to the use and 
enjoyment of public facilities .........................  5

II. Where, as here, the facility maintained for the 
segregated group is unequal and inferior to 
that maintained for all other persons, the con­
stitutional mandate of equal protection of the 
laws is violated under all recognized theories
of American constitutional law ........................  7

No. 14,666 .......................................................................  8
III. The right to maintain a class action under Rule 

23(a) of the Federal Rules of Civil Procedure 
for the benefit of a large group or class of 
persons similarly situated to secure rights 
guaranteed under the equal protection clause of 
the Fourteenth Amendment is supported by
the overwhelming weight of au thority ...........  8

Conclusion .....................................................................  13

Table of Cases

Alton v. School Board of City of Norfolk, 122 F. 2d
992 (C. A. 4th 1940); cert. den. 311 U. S. 693 .........  4,10

Asbury Hospital v. Cass County, 326 U. S. 207 . . . .  3, 5
Bain Peanut Co. v. Pinson, 282 IJ. S. 499 ..................  3, 5
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 . . . .  3, 6



11

Carter v. School Board of Arlington County, Va., 182 
F. 2d 531 (C. A. 4th 1950)......................................  4,10

Dominion Hotel v. Arizona, 249 U. S. 256 ...................  3, 5
Edwards v. California, 314 U. S. 160, 184 ...................  3, 6
Everglades Drainage League v. Napoleon B. Broward

Dist., 253 Fed. 246 (S. D. Fla. 1918)......................  4,11
Ex Parte Endo, 323 U. S, 283 .................................. . 3, 6
Gray v. Board of Trustees, 342 U. S. 517, 518...........  4, 9
Gonzales v. Sheeley, 96 F. Supp. 1004 (Ariz. 1951) .. 4,10
Gramling v. Maxwell, 52 F. 2d 256 (W. D. N. C. 1931) 4,11
Hirabayashi v. United States, 320 U. S. 8 1 ................  3, 6
Johnson v. Board of of Trustees of University of Ken­

tucky, 83 F. Supp. 707 (E. D. Ky. 1949) ............... 4,10
Korematsu v. United States, 323 U. S. 214, 216..........  3, 6
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 .. 3,5
Lopez v. Seccombe, 71 F. Supp. 769 (S. D. Cal. 1944) 4,10
McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151. 4,12
McLaurin v. Oklahoma State Regents, 339 U. S. 637 3, 6
Metropolitan Casualty Insurance Co. v. Brownell,

294 U. S. 580 ..........................................................  3, 5
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . .4, 5, 7,12 
Mitchell v. Wright, 62 F. Supp. 580 (M. D. Ala. 1945),

rev. 154 F. 2d 580 (C. A. 5th 1946) ......................4,12,13
Monk v. City of Birmington, 185 F. 2d 859 (C. A. 5th

1950)........................................................................  5,10
Morgan v. Virginia, 328 U. S. 373 ................................  3, 6
Morris v. Williams, 149 F. 2d 703 (C. A. 8th 1945).. 4, 9
Nixon v. Herndon, 273 U. S. 536, 541 ........................ 3, 6
Nolen v. Riechman, 225 Fed. 812 (W. D. Tenn. 1915) 5,11
Oyama v. California, 332 U. S. 633 .........................  3, 6

PAGE



I l l

Plessy v. Ferguson, 163 U. S. 537 ...........................  4, 7
Railway Mail Association v. Corsi, 326 U. S. 8 8 ___ 3, 6
Shelley v. Kraemer, 334 IT. S. 1 ................................. 3, 6
Shepherd v. Florida, 341 U. S. 5 0 .............................  3, 6
Sipuel v. Board of Regents, 332 IT. S. 631................  4, 7
Skinner v. Oklahoma, 316 U. S. 535 .........................  3, 6
Smith v. Allwright, 321IJ. S. 649 ..................................  3, 6
Sweatt v. Painter, 339 IT. S. 629 ....................3, 4, 5, 6, 7,12
Takahashi v. Fish and Game Commission, 334 U. S.

410 .............................................................................  3, 6
Terry v. Adams, 95 F. Supp. 595 (S. D. Tex. 1950), 

rev. on other grounds 193 F. 2d 600 (C. A. 5th 
1952) .........................................................................  5,10

Wilson v. Beebe, 99 F. Supp. 418 (Del. 1951)...........  5,10
Yick Wo v. Hopkins, 118 IT. S. 356 ...........................  3, 6

PAGE



Inttefc States OXnurt rtf Kppmlx
Eighth Circuit

—  --------------------------------- o ----------- .— _ — —

No. 14,664— Civil
City of K ansas City, Missouri, et al.

Appellants,
v.

E sther W illiams, et al.
Appellees.

No. 14,666—Civil
E sther W illiams, et al.,

Appellants,
v.

City op K ansas City, Missouri, et al.
Appellees.

A ppeal and Cross A ppeal F rom the District Court op the 
U nited States for the W estern District of Missouri, 

W estern Division

----- ---------------- o----------------------

BRIEF FOR APPELLEES AND CROSS­
APPELLANTS

Statement of the Case

Esther Williams, Lena R. Smith and Joseph N. Moore, 
Negro citizens of the United States and of the State of 
Missouri, began the action in the court below seeking to 
enjoin the City of Kansas City, Missouri, the Board of 
Park Commissioners and the Superintendent of Parks of 
Kansas City from pursuing a policy, custom and usage 
of refusing to admit them, and other Negroes similarly



2

situated to Swope Park Swimming Pool, a public facility, 
solely because of their race and color. It was alleged that 
their exclusion, being based upon race and color alone, 
denied to them the equal protection of the laws as secured 
by the Fourteenth Amendment. Suit was brought by 
appellees1 as a class action in accordance with Rule 
23(a) of the Federal Rules of Civil Procedure on their 
own behalf and on behalf of all other Negroes similarly 
situated—there being common questions of law and fact 
involved affecting the rights of all Negro citizens who 
reside in Kansas City, Missouri who are so numerous as 
to make it impracticable to bring them all before the court 
in a single litigation.

A trial on the merits took place on February 15, 1952 
(R. 61 et seq). On April 18, 1952, the court below entered 
its memorandum opinion (R. 24-35), findings of fact 
(R. 35-37) and conclusions of law (R. 37-44). The court 
held that “ plaintiffs may maintain the instant action in 
their own behalf, but same cannot be presented as a pure 
class action” (R. 37). On May 7, 1952, a final decree was 
entered restraining the City, Board of Park Commissioners 
and Superintendent of Parks from “ refusing to enter and 
make contracts with the plaintiffs for admission to the 
Swope Park Pool and from refusing to admit plaintiffs 
to said pool and all facilities operated in connection there­
with because of their race and color” (R. 46-47). From 
this final judgment and decree, an appeal (R. 50) and 
cross-appeal (R. 58) were taken.

Appellees submit that the judgment of the court below 
should be affirmed except insofar as the court below ruled 
that the instant action could not be maintained as a class 
suit. With respect to the latter ruling, it is submitted that 
the judgment is erroneous and should be reversed.

1 Throughout this brief the term, appellees, will refer to plain­
tiffs below and the term appellants will refer to defendants below.



3

The facilities at the Swope Park Swimming Pool main­
tained exclusively for white persons and those of the 
Parade Park Pool maintained exclusively for Negroes is 
accurately described by the court below in its memorandum 
opinion (E. 26, 27, 35), and we adopt the court ’s statement 
as our counter-statement of facts.

Points and Authorities 
A s to No. 14,664

I. The State has no power to impose distinctions among 
its citizens with respect to the use and enjoyment of pub­
lic facilities.

McLaurin v. Oklahoma State Regents, 339 U. S. 
637;

Sweatt v. Painter, 339 U. S. 629;
Takahashi v. Fish and Game Commission, 334 

U. S. 410;
Asbury Hospital v Cass County, 326 TJ. S. 207; 
Bain Peanut Co. v. Pinson, 282 U. S. 499;
Bob Lo Excursion Co. v. Michigan, 333 U. S. 28; 
Dominion Hotel v. Arizona, 249 U. S. 265; 
Edwards v. California, 314 TJ. S. 160;
Ex Parte Endo, 323 U. S. 283;
Hirabayashi v. United States, 320 U. S. 81; 
Korematsu v. United States, 323 U. S. 214; 
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 

61;
Metropolitan Casualty Insurance Co. v. Bromwell, 

294 U. S. 580;
Morgan v. Virginia, 328 U. S. 373;
Nixon v. Herndon, 273 U. S. 536, 541;
Oyama v. California, 332 U. S. 633;
Railway Mail Assn. v. Corsi, 326 U. S. 88;
Shelley v. Kraemer, 334 TJ. S. 1;
Shepherd v. Florida, 341 TJ. S. 501 
Skinner v. Oklahoma, 316 TJ. S. 535;
Smith v. Allwright, 321 TJ. S. 649 ;
Yick Wo v. Hopkins, 118 TJ. S. 356.



4

II. Where, as here, the facility maintained for the 
segregated group is unequal and inferior to that main­
tained for all other persons, the constitutional mandate 
of equal protection of the laws is violated under all recog­
nized theories of American constitutional law.

Missouri ex rel Gaines v. Canada, 305 U. S. 337;
Plessy v. Ferguson, 163 U. S. 537;
Sipuel v. Board of Regents, 332 U. S. 631;
Sweatt v. Painter, 339 U. S. 629.

III. As to No. 14,666
The right to maintain a class action under Rule 23(a) 

of the Federal Rules of Civil Procedure for the benefit of 
a large group or class of persons similarly situated to secure 
rights guaranteed under the equal protection clause of 
the Fourteenth Amendment is supported by the over­
whelming weight of authority.

Gray v. Board of Trustees, 342 U. S. 517, 518;
Alton v. School Board of the City of Norfolk, 182 

F 2d 531 (C. A. 4th 1950)
Morris v. Williams, 149 F 2d 703 (C. A. 8th 1945)
Carter v. School Board of Arlington County, Va., 

182 F. 2d 531 (C. A. 4th 1950);
Everglades Drainage League v. Napoleon B. 

Broward Dist., 253 Fed. 246 (S. D. Fla. 1918);
Gonzales v. Sheeley, 96 F. Supp. 1004 (Ariz. 1951);
Gramling v. Maxwell, 52 F 2d 256 (W. D. N. C. 

1931) ;
Johnson v. Board of Trustees of University of 

Kentucky, 83 F. Supp. 707 (E. D. Ky. 1949);
Lopez v. Seccombe, 71 F. Supp. 769 (S. D. Cal.

1944) ;
McCabe v. A. T. & S. F. By. Co., 235 U. S. 151;
Mitchell v. Wright, 62 F. Supp. 580 (M. D. Ala.

1945) , reversed 154 F. 2d 580 (C. A. 5th 1945);



5

Missouri ex rel Gaines v. Canada, 305 U. S. 337; 
Monk v. City of Birmingham, 185 F 2d 859 

(C. A. 5th 1950);
Nolen v. Riechmun, 225 Fed. 812 (W. D. Term. 

1915);
Sw-eatt v. Painter, 339 U. S. 629;
Terry v. Adams, 95 F. Supp. 595 (S. D. Tex. 1950) 

rev. on other grounds, 193 F 2d 600 (C. A. 5th 
1952);

Wilson v. Beebe, 99 F. Supp. 418 (Del. 1951).

ARGUMENT
No. 14,664

I

The State has no power to impose distinctions 
among its citizens with respect to the use and enjoy­
ment of public facilities.

As to No. 14,664, there can he little question on an 
examination of the record, opinion of the court, and 
statement in appellants’ brief, heretofore filed, that the 
Swope Park Swimming Pool is far superior in physical 
appointments and facilities to the Parade Park Pool. It 
is our contention that appellants may not exclude appellees 
from the Swope Park Swimming Pool solely because of 
race.

It is elemental doctrine that governmental classifica­
tions must be based upon some real difference having per­
tinence to a lawful legislative objective in order to con­
form to the requirements of the equal protection clause 
of the Fourteenth Amendment. Bain Peanut Co. v. Pinson, 
282 IJ. S. 499; Lindsley v. Natural Carbonic Gas Co., 220 
U. S. 61; Asbury Hospital v. Cass County, 326 U. S. 207 ; 
Metropolitan Casualty Insurance Co. v. Brownell, 294 
U. S. 580; Dominion Hotel v. Arizona, 249 U. S. 256.



6

Classifications and distinctions based upon race and color 
alone satisfy neither requirement and are the epitome of 
that arbitrariness and caprieiousness constitutionally im­
permissible under our system of government. See Skinner 
v. Oklahoma, 316 U. S. 535; Yick Wo v. Hopkins, 118 U. S. 
356; Edwards v. California, 314 U. S. 160, 184; Nixon v. 
Herndon, 273 U. S. 536, 541. Only as a war measure de­
signed to cope with a grave national emergency was even 
the federal government permitted to level restrictions 
against persons of enemy descent. Hirabayashi v. United 
States, 320 U. S. 81; Oyama v. California, 332 U. S. 633. 
This action, “ odious,” Hirabayashi v. United States, supra, 
at page 100, and “ suspect,” Korematsu v. United States, 
323 U. S. 214, 216, even in times of national peril, must 
cease as soon as that danger has passed. Ex Parte Endo, 
323 U. S. 283.

Certainly for the past quarter of century, the Supreme 
Court of the United States has struck down state imposed 
racial restrictions and distinctions in each field of govern­
ment activity where question has been raised: selection 
for jury service, Shepherd v. Florida, 341 U. S. 50 ; owner­
ship and occupancy of real property, Shelley v. Kraemer, 
334 U. S. 1; gainful employment, Takahashi v. Fish and 
Game Commission, 334 U. S. 401; voting, Smith v. All- 
wright, 321 U. S. 649; and graduate and professional educa­
tion. McLaurin v. Oklahoma State Regents, 339 U. S. 637; 
and Sweatt v. Painter, 339 U. S. 629. The commerce clause, 
in proscribing the imposition of racial distinctions in in­
terstate travel, is a further limitation of state power. 
Morgan v. Virginia, 328 U. S. 373. On the other hand, when 
the state has sought to protect its citizenry against racial 
discrimination and prejudice, its action has been consist­
ently upheld, Railway Mail Association v. Corsi, 326 U. S. 
88, even though taken in the field of foreign commerce. 
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28.



7

Thus, we submit, that under the present status of the 
law, even without reg*ard to the quality of facilities afforded, 
the state has no power to maintain and make a racial 
classification with respect to the use and enjoyment of its 
public swimming pool facilities.

II

W here, as here, the facility maintained for the 
segregated group is unequal and inferior to that main­
tained for all other persons, the constitutional man­
date of equal protection of the laws is violated under 
all recognized theories of American constitutional law.

Whatever doubt may exist as to the present constitu­
tional status of racial segregation where equal physical 
facilities are provided, it would be frivolous indeed to argue 
that absent equal facilities racial segregation is permis­
sible. Plessg v. Ferguson, 163 U. S. 537; Missouri ex rel 
Gaines v. Canada, 305 U. S. 337. The right to equality 
of treatment is present and immediate, Svpuel v. Board of 
Regents, 332 U. S. 631, and where such equality is denied, 
racial barriers to the use and enjoyment of the superior 
facilities must be removed at once. Sweatt v. Painter, 
339 U. S. 629. Here the record shows clearly that the 
Swope Park Swimming Pool maintained exclusively for 
white persons is far superior in all respects to the Parade 
Park Pool maintained exclusively for Negroes. Under 
these circumstances, the policy, custom and usage of pro­
hibiting Negroes from using the Swope Park Swimming 
Pool cannot continue, and the judgment and decree of the 
lower court was correct and should be affirmed.



8

No. 14,666 

III

The right to maintain a class action under Rule 
2 3 (a ) of the Federal Rules of Civil Procedure for the 
benefit o f a large group or class of persons similarly 
situated to secure rights guaranteed under the equal 
protection clause of the Fourteenth Amendment is sup­
ported by the overwhelming weight o f authority.

This case was brought as a class suit pursuant to Rule 
23(a) of the Federal Rules of Civil Procedure, which pro­
vides as follows:

“ (a) Representation. If persons constituting 
a class are so numerous as to make it impracticable 
to bring them all before the court, such of them, 
one or more, as will fairly insure the adequate 
representation of all may, on behalf of all, sue or 
be sued, when the character of the right sought to 
be enforced for or against the class is

“ (1) joint, or common, or secondary in the 
sense that the owner of a primary right refuses 
to enforce that right and a member of the class 
thereby becomes entitled' to enforce it;

“ (2) several, and the object of the action is 
the adjudication of claims which do or may affect 
specific property involved in the action; or

“ (3) several, and there is a common question 
of law or fact affecting the several rights and a 
common relief is sought.”

It was brought not only in behalf of named appellees, but 
on behalf of all other Negroes residing in Kansas City, 
Missouri, who are affected by the practice, policy, custom



9

and usage of appellants in excluding Negroes from using 
the Swope Park Swimming Pool solely because of their 
race and color.

The District Court was of the opinion that a class 
action could not be maintained because the rights involved 
are individual. The overwhelming weight of authority, 
however, is to the effect that a class action is a proper 
method to secure redress where the state had denied a 
large group of its citizenry the equal protection of the law.

In Gray v. Board of Trustees, 342 U. S. 517, action was 
brought by Negro plaintiffs who had been denied admission 
to the University of Tennessee because of race. The action 
was pursued as a class suit on behalf of the named plain­
tiffs and all other Negroes similarly situated. In the 
course of the argument in the Supreme Court of the United 
States, counsel for the University announced that the school 
authorities were now ready to admit the plaintiffs. The 
Court stopped the argument and subsequently issued a 
per curiam opinion saying at 518:

"Since appellants’ request for admission to the 
University of Tennessee had been granted and since 
there is no suggestion that any person "similarly 
situated” will not be afforded similar treatment 
* * * the judgments below are vacated and the Dis­
trict Court is directed to dismiss the action upon 
the ground that the cause is moot.”

This is a clear recognition by the Supreme Court that a 
class action was appropriate and that under its decree 
other Negroes not named as parties could obtain relief 
against discriminatory practices by University officials.

In Morris v. Williams, 149 P 2d 703 (C. A. 8th 1945), 
a Negro teacher in Little Rock, Arkansas commenced suit 
for herself and on behalf of other Negro teachers and 
principals of Little Rock similarly situated. On appeal



10

from a judgment dismissing* the complaint, this Court re­
versed and remanded, holding that the record clearly 
revealed the existence of a policy, custom and usage of 
paying Negro teachers less than white teachers because of 
race and color. This Court recognized that the cause was 
being litigated as a class suit and impliedly approved the 
propriety of this procedure.

Alston v. School Board of City of Norfolk, 122 F 2d 
992 (C. A. 4th 1940); cert. den. 311 U. S. 693, was among the 
first of the teacher-salary cases to be decided at the Court 
of Appeals level. It was there recognized that a Negro 
attacking state discriminatory action as violative of the 
equal protection clause may sue on behalf of himself and 
all others similarly situated pursuant to Rule 23a of the 
Federal Rules of Civil Procedure.

Class actions have been allowed in suits involving: the 
right to equal school facilities, Carter v. School Board of 
Arlington County, Va., 182 F 2d 531 (C. A. 4th. 1950)( 
Gonzales v. Sheeley, 96 F. Supp. 1004 (Ariz. 1951); the 
constitutionality of racial segregation in public schools, 
Wilson v. Beebe, 99 F. Supp. 418 (Del. 1951); a zoning* 
ordinance, Monk v. City of Brimingham, 185 F 2d 859 
(C. A. 5th 1950), cert, denied, 341 U. S. 940; voting, Terry 
v. Adams, 90 F. Supp. 595 (S. D. Tex. 1950), reversed on 
other grounds, 193 F 2d 600 (C. A. 5th 1952); admission 
to graduate school of a state University, Johnson v. Board 
of Trustees of University of Kentucky, 83 F. Supp. 707 
(E. D. Ky. 1949); use of a public bath house, swimming 
pool and playground, Lopez v. Seccombe, 71 F. Supp. 769 
(S. D. Cal 1944).

Even prior to adoption of the Federal Rules of Civil 
Procedure federal courts have generally upheld class suits 
where large numbers of citizens have attacked state action 
as violative of the Fourteenth Amendment.



11

In Everglades Drainage League v. Napoleon B. Broward 
Dist., 253 Fed. 246 (S. D, Fla. 1918), the League and others 
brought a bill of equity against the Drainage District and 
others to enjoin defendants from collecting a uniform 
acreage tax on the ground that the tax was violative of 
the Fourteenth Amendment. The League, a voluntary 
association claiming more than 1000 members, commenced 
the action on behalf of itself and all others similarly situ­
ated. On a motion to dismiss the bill, the court held that 
the action was properly maintained as a representative 
action under Equity Rule 38.2

In Nolen v. Riechman, 225 Fed. 812 (W. D. Tenn. 1915), 
a class suit was considered proper where a large group 
sought to enjoin enforcement of a state statute regulating 
“ jitney” transportation on the ground that it violated the 
Fourteenth Amendment.

Similarly, where a large group of peach growers 
attacked the constitutionality of a licensing tax statute 
as violative of the commerce clause and other provisions 
of the Constitution, the propriety of a class suit was upheld. 
Gramling v. Maxwell, 52 F. 2nd 256 (W. D. N. C. 1931). 
In so holding, the court declared at page 260 :

“ The case is not one, however, involving merely 
the right of a single taxpayer. It is a class suit 
instituted in behalf of a large number of peach 
growers affected by the statute; and we think that 
it may be maintained in equity for the purpose of 
avoiding the multiplicity of suits which would other­
wise result. Whatever may have been the rule for­
merly as to the right to maintain a class suit of this 
character in the federal courts, we think that, since 
the adoption of the 38th Equity Rule (28 U. S. C. A.

2 Equity Rule 38, in effect at the time this case was decided, 
reads as follows: ‘‘When the question is one of common or general 
interest to many persons constituting a class so numerous as to make 
it impracticable to bring them all before the court, one or more may 
sue or defend for the whole.



12

723), the right to maintain such a suit cannot be 
denied. ’ ’

The District Court in the instant case rested its deci­
sion on four cases: McCabe v, A. T. <& S. F. By. Co., 235 
U. S. 151; Missouri ex rel Gaines v. Canada, 305 U. S. 337, 
351; Sweatt v. Painter, 339 U. S. 629 ; and Mitchell v. 
Wright, 62 F. Supp. 580 (M. D. Ala. 1945).

Neither Gaines nor Sweatt arose in the federal courts 
and hence they cannot be considered authority on a ques­
tion of federal procedure. Moreover, neither case was 
brought as a class action. The assertion in both cases 
that the right to the equal protection of the laws is a per­
sonal right was meant to define the reach of the Fourteenth 
Amendment with respect to the injury suffered and is not 
indicative of any negation of the class suit remedy in 
these types of cases.

The McCabe case, we submit, offers no support for 
the position of the District Court. Plaintiffs in that case, 
five Negro citizens of Oklahoma, brought a bill in equity 
to restrain several railroad companies from complying 
with an Oklahoma statute—which required railroads to 
provide separate accommodations for white and Negro 
passengers. The action was commenced prior to the effec­
tive date of the statute and none of the plaintiffs, there­
fore, had suffered any injury. It is not clear from the 
opinion whether this action was prosecuted a class suit. 
But even if the action was so brought, the case stands 
only for the proposition that no one can qualify as a proper 
representative of a class seeking redress against an uncon­
stitutional enactment, if he has himself suffered no injury.

The Mitchell case stands alone in support of the District 
Court. There, action was brought against Alabama regis­
tration officials to restrain them from requiring Negro 
citizens to submit to tests more rigid than those given 
white citizens in order to qualify to vote. The court held 
that a class action was improper on the theory that regis­
tration was an individual matter and each voter’s qualifica­



13

tion must be considered on its own merits. For this and for 
failure to exhaust administrative remedies, the court dis­
missed the complaint. On appeal, however, judgment was 
reversed, 151 F. 2d 580 (C. A. 5th 1946). The opinion of 
the Court of Appeals deals exclusively with the question 
of administrative remedies but it was held that the action 
had been improperly dismissed. Most of the vitality of 
this lower court holding, we submit, was destroyed by the 
reversal of the Court of Appeals. At any rate, until the 
decision in the instant case, Mitchell v. Wright stood alone 
in rejecting the propriety of a class suit as a method of 
redress available to Negroes in equal protection cases.

Conclusion

The discriminatory action here complained of is the 
state’s refusal to permit Negroes to use the Swope Park 
Swimming Pool, solely because of their race and their 
color. The court found appellants’ practices were uncon­
stitutional because the Parade Park Pool was not equal in 
physical facilities and recreational value to the Swope Park 
Pool. While the named parties are before the court and 
have been injured by a specific refusal of admission to 
Swope Park, these particular appellees are merely examples 
of the discriminatory effect of the state practice. If the 
judgment below is allowed to stand in this respect, it will 
be an open invitation to any state so inclined to defy the 
Fourteenth Amendment until it is literally harassed with 
a great number of suits. The appellants can hardly claim 
the right to litigate and relitigate the identical issue. A 
class suit represents the only effective way whereby a large 
group of citizens can avail themselves of the safeguards 
of the Fourteenth Amendment. The effect of the judg­
ment here is thus to sap the equal protection clause of



14

its effectiveness. It is urged, therefore, that the judgment 
of the District Court should he reversed in so far as it held 
that a class suit could not be maintained.

Respectfully submitted,

A lmer T. A dair,
220 Lincoln Building,

Kansas City, Missouri,
Carl R. J ohnson,

231 Lincoln Building,
Kansas City, Missouri,

R obert L. Carter,
T htjrgood Marshall,

20 West 40th Street,
New York, New York,

Counsel for Appellees-Appellants.

David E. P insky,
of Counsel.



S upreme P rinting  Co., I nc ., 41 M urray Street, N . Y., B A rclay 7-0348