Watson v. City of Memphis Brief of Respondents in Opposition to Petition for Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1962,

No, 424.

I. A. WATSON, JR,, T. W, NORTHCROSS, SR,, W. D, 
SPEIGHT, JR,, A, E, HORNE, SR,, MELVIN MALUNDA, 
JOHNNY GHOLSTON, HAROLD GHOLSTON, ALFRED 
HAYNES, JR,, JOHN ROGERS, THOMAS PUGH and CURTIS 
KING, on Behalf of Themselves and Others Similarly Situated,

Petitioners,
vs,

CITY OF MEMPHIS, a Public Body Corporate, et al., 
Respondents,

BRIEF OF RESPONDENTS IN OPPOSITION TO 
PETITION FOR CERTIORARI.

J, S, ALLEN,
WALTER CHANDLER,
FRANK B. GIANOTTI, JR., 
THOMAS R. PREWITT,

Memphis, Tennessee, 
Attorneys for Respondents,

St. L ouis Law  Pbinting Co„ Inc., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Page
Question Presented..............................., ........................, 1
Statement of the Case....................................   2
‘ ‘ Pink Palace Museum ” ................................................ 9
Argument.....................     12

Pink Palace Museum..............     17
Conclusion ..................................................   19

Appendix—Opinion of Trial Court................................ 21

Cases Cited.

Aaron v. Cooper, 243 Fed. 2d 361 (8th Cir., 1957 )..... 13
Board v. Baker, 124 Tenn. 39, 134 S. W. 863 (1910). . 17
Brown v. Board of Education of Topeka, 349 IT. S.

294, 75 S. Ct. 753, 99 L. Ed. 1083 (second decision 
decided May 31, 1955)..................................12,13,16,17

Charlotte Park & Recreation Commission v. Barringer,
242 N. C. 311, 88 S. E. 2d 114 (1955)......................  17

City of Montgomery v. Gilmore, 277 Fed. 2d 364 (5th
Cir., 1960)....................................................................... 15

Cummings v. City of Charleston, 288 Fed. 2d 817 (4th 
Cir., 1961)...............................     15

Detroit Housing Commission v. Lewis, 226 Fed. 2d 180 
(6th Cir., 1955)...........................................................  16

Florida ex rel. Hawkins v. Board of Control, 350 U. S. 
413(1956)....................................................................... 12

Harrison v. NAACP (1959), 360 U. S. 167, 3 L. Ed,
2d 1152, 79 S. Ct. 1925..........................................,18,1.9



11

Kelley v. Board of Education of City of Nashville,
270 Fed. 2d 209 (6th Cir., 1959)..............................12,13

Meccano, Ltd. v. John Wanamaker, 253 U. S. 136, 141,
40 S. Ct. 463, 64 L. Ed. 822.........................................  16

Meridian v Southern Bell Telephone & Telegraph Co. 
(1959), 358 U. S. 639, 3 L. Ed. 2d 562, 79 S. Ct. 455.. 18

National Fire Ins. Co. of Hartford v. Thompson, 281 
U. S. 331, 338, 50 S. Ct. 288, 74 L. Ed. 8 8 1 . . . . . . . . .  16

Rippv v. Borders, 250 Fed. 2d 690 (5th Cir., 1957).... 16

Sweatt v. Painter, 339 H. S. 629............. .....................  13
Thibodaux v. Louisiana Power & Light Co. (1959),

360 U. S. 25, 3 L. Ed. 2d 1058, 79 S. Ct. 1070.............  18
United States v. W. T. Grant Co., 345 U. S. 629, 633,

73 S. Ct, 894, 97 L. Ed. 1303..................................... . 16
Yarbrough v. Yarbrough, 151 Tenn. 221, 269 S. W. 36



IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1962.

No. 424.

I. A, WATSON, JR., T. W. NORTHCROSS, SR., W. D. 
SPEIGHT, JR., A. E. HORNE, SR., MELVIN MALUNDA, 
JOHNNY GHOLSTON, HAROLD GHOLSTON, ALFRED 
HAYNES, JR., JOHN ROGERS, THOMAS PUGH and CURTIS 
KING, on Behalf of Themselves and Others Similarly Situated,

Petitioners,
vs.

CITY OF MEMPHIS, a Public Body Corporate, et al., 
Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO 
PETITION FOR CERTIORARI.

QUESTION PRESENTED.

No constitutional question is involved in this case. Re­
spondents fully recognize and are actually applying the 
established principle of constitutional law that Negroes 
are entitled to make use, on a desegregated basis, of pub­
lic parks and recreational facilities of the City of Memphis.

The only question presented in the lower courts in this 
suit seeking injunction to require immediate and com­
plete desegregation of the races in all the public parks 
and recreational facilities operated by respondents was 
whether the Trial Judge had the discretionary right, un­
der the undisputed proof in this case, to deny the relief 
sought and to approve plan of gradual integration.



STATEMENT OF THE CASE.

The Trial Court did hand down an Opinion (forming 
part of the Judgment) and this Opinion is attached hereto 
(App. lb). Petitioners make no attack on the correctness 
of the Trial Court’s Findings of Fact; therefore, we as­
sume that all Findings may be accepted as having been 
sustained by competent proof. Reference to the Trial 
Court’s Findings need be made for proper determination 
of the question herein involved.

The City of Memphis has a population of approximately 
five hundred thousand (500,000), thirty-seven per cent 
(37%) of which are Negro, and sixty-three per cent 
(63%) are White (1960 Census). Memphis is located in 
the extreme southwest corner of Tennessee and is bounded 
on the west by Arkansas and the south by Mississippi. 
The population of the adjoining counties in Arkansas, 
Mississippi and West Tennessee is predominantly Negro 
(App. 106a).

There are 131 parks owned by the City of Memphis 
and operated by Memphis Park Commission, 108 of which 
are developed and in use. At the time of trial, 25 of these 
parks were integrated, including Zoo, Art Gallery and 
McKellar Lake Boat Dock. As respects the balance, with 
very few exceptions, the parks reserved for Negroes are 
in neighborhoods which are completely or predominantly 
Negro; and likewise, the parks reserved for White people 
are in neighborhoods which are completely or predomi­
nantly White. In the City of Memphis, the races are sep­
arated by neighborhoods, and the Park Commission has 
consistently followed neighborhood patterns in providing 
recreational facilities for members of both races; and it 
has been its policy to remove restrictions applicable to 
Negroes as neighborhoods are converted, by voluntary 
action, from White to Negro, as early as practicable (App. 
106a, 107a).

—  2 —



Recreational facilities operated by the Memphis Park 
Commission were set out in the Trial Court’s Findings 
of Fact. These facilities include 10 swimming pools—5 
reserved for White use and 5 for colored; but since the 
trial, the swimming pool in Malone Park has been changed 
from White to Negro, leaving 6 swimming pools for Ne­
groes and 4 for White. Respondents operate 61 play­
grounds on City owned property—40 reserved for White 
use and 21 for use by Negroes—together with 56 play­
ground facilities operated by the Park Commission on 
property owned by churches, private groups and the 
School Board—30 of which are reserved for White use 
and 26 for Negro. At the time of trial, there were 12 
community centers with gymnasiums on City owned prop­
erty—8 of which were reserved for White use and 4 for 
colored; but, as pointed out by the Court of Appeals, the 
Gaston Community Center, formerly reserved for White 
use, has been changed since the date of trial in the Dis­
trict Court. All 7 of the City owned golf courses, under 
the plan as approved by the Trial Court, will be fully 
desegregated by January 1, 1964. At the present time, 
3 of the 7 golf courses are already integrated1 (App. 
107a, 108a, 109a).

1 The fact that no Negro will be denied the privilege of play­
ing golf during transition period is fully shown in the proof. At 
time of trial in the District Court 5 o f the 7 golf courses were 
reserved for White use and 2 for colored. In 1960, out of a total 
o f 232,413 golf players on the 7 City courses less than 13,000 were 
Negroes; thus, Negroes, comprising less than 6 %  o f the golf play­
ers, used approximately 30%  of the public courses (App. 51a, 
Exhibit 4 ), and Fuller Golf Course, formerly used only by Negroes, 
but integrated, under the plan approved by the Trial Judge, on 
February 1, 1962, is the finest in Memphis and potentially one of 
the best in the United States (App. 74a).

A similar situation existed with respect to those Negro plaintiffs 
who claimed discrimination in use of tennis courts. At the time 
o f trial, those plaintiffs were playing tennis at Gooch Park and 
others without charge, whereas, there was an admission fee at 
John Rogers Tennis Courts (formerly reserved for Whites) ; and 
the Gooch court was much closer to their homes (App. 32a. 34a,



4

In making the transition from a predominantly segre­
gated park system to an integrated system, respondents 
concluded, following much study, and after desegregation 
of such city wide facilities (as distinguished from neigh­
borhood parks and playgrounds), as the Zoo, Art Gallery 
and McKellar Lake Boat Dock, that the 7 public golf 
courses and Fairgrounds Amusement Park should be next 
desegregated. This program was evolved because these fa­
cilities involved areas which were less sensitive in the mat­
ter of race relations than other areas, and which were less 
likely to cause confusion and turmoil in the transition 
period (App. 54a). Respondents’ plan as submitted to 
the Trial Court took into account also that it would have 
been unfair to desegregate Fairgrounds Amusement Park 
in the middle of the year because of the effect it would 
have had on rights of certain concession holders who op­
erate under contract with the Park Commission (App. 
49a). Other reasons in support of gradual integration are 
set out in testimony of Harry Pierotti, Chairman of the 
Park Commission, and H. S. Lewis, Director of Parks 
(App. 54a, 55a, 56a, 75a, 82a, 83a, 84a).

The Recreational Department of the Memphis Park Com­
mission is rated by competent authorities as the best in 
the South. Its recreational program for Negroes is the 
finest in the country. Approximately 100,000 children 
participate in one or more of the recreational activities 
sponsored by the Memphis Park Commission, and of this 
number approximately 35,000 are Negroes. The Recrea­
tional Department of the Park Commission sponsors many 
and varied types of recreational activities, including, but 
not limited to, competitive sports, such as baseball and 
basketball, dancing, and many other activities. The Rec­
reational Department headquarters itself is operated on

36a). Under the plan, John Rogers Tennis Courts were integrated 
January 1, 1962, in accordance with suggestion of the Trial Court 
(App. 111a).



5

an integrated basis, and all Negro Supervisors and Direc­
tors are paid on the same salary schedule as the White 
Supervisors and Directors; and the qualifications for such 
Negro Supervisors and Directors are equal to or greater 
than that of their White counterparts (App. 108a).

In finding that respondents were acting in good faith 
in recognizing constitutional rights of Negroes to use of 
public parks and facilities on an integrated basis, the 
Trial Court gave consideration to the following:

(1) Importance of time to accomplish change-over from 
a partially segregated system to an integrated one,

(2) Good will and understanding heretofore obtaining 
between the races.

(3) The fact that, pending the transition period now in 
progress, ample recreational facilities, under the operation 
of the Park Commission, will be available to all Negro 
citizens of Memphis, and no Negro will be denied the 
right to avail himself of those facilities.

(4) Maintenance of law and order.
(5) Avoidance of confusion and turmoil in the com­

munity.
(6) Revenues available from concessions operated on 

park property.
(7) The fact that immediate integration would result 

in a denial to a substantial number of citizens, both Negro 
and White, of an opportunity to avail themselves of rec­
reational facilities now afforded to all citizens of 
Memphis.

(8) The constitutional and other legal rights of all citi­
zens, both White and Colored (App. 110a).

The Trial Judge found as a fact that “ immediate forced 
integration of all facilities of the Park Commission would



6

be unwise under all the circumstances as presented by the 
proof. The plans and programs evolved by the Park Com­
mission properly take into account the constitutional 
rights of Negro citizens without overlooking many other 
factors, as hereinabove set out”  (App. 110a).

Although no attack is made on the correctness of the 
lower court’s Findings of Fact, it is significant that the 
proof showed, without dispute, that immediate forced in­
tegration of all races in all parks and facilities would (1) 
seriously impair the good will and understanding that has 
heretofore obtained between the races in the City of Mem­
phis2 (App. 50a); (2) result in a denial to a substantial

2 Marion Hale, Superintendent of Recreational Department of 
Memphis Park Commission, with 36 years’ experience in field of 
public recreation, testified :—

“ Q. Now, Mr. Hale, with reference to this integration prob­
lem, and you recognize there is a problem you have to face 
in your work, do you not?

A. Yes, sir.
Q. What effect, Mr. Hale,— and I want you to base your 

answer on the years of experience you have had in the recrea­
tion field dealing with both white and colored, would forced 
integration, immediate integration, have on the recreation de­
partment of the Memphis Park Commission ?

A. From my years of experience, Mr. Lawyer, sudden 
recreation will create havoc.

Q. You mean sudden integration ?
A. I mean sudden integration.
I think we have a problem and me and my staff realize we 

have a problem, and we are continually observing these prob­
lems and trying to work them out, but if you were to order im­
mediate integration of all our playgrounds no telling what 
would happen.

I have heard it discussed about the violence and we all know 
that is true.

I think there is another point that is important, is to see 
the relationship broken down between the white and the col­
ored. A  relationship that we have worked so hard to build 
up. A  friendship, that through my thirty-six years has be­
come increasingly fine, and I think that many, many play­
grounds— I don’t think it, I know it,— would have to be closed 
down and I think that you would need more supervision.

I think you would have lots and lots of violence, and irre- 
gardless of who started it the violence will be there. I think 
your playground system, if we integrate suddenly, would be



number of Negro citizens, as well as White, of recrea 
t.ional facilities now available;3 (3) create great difficulties

ruined. I f  we had a little time to give some deep thought 
and consideration where we can work this thing out har­
moniously for the good o f both races where we can work it 
out and ponder over it and do it on a gradual basis. ..........

Q. Have you discussed this with your Negro supervisors?
A. I have discussed it many times.
Q. Are they in accord with your thinking?
A. Well, I have— I would hate to answer that question.
Yes, I would say they are in accord with my suggestion 

here on the stand. Especially the supervisors."
(Transcript of Evidence, pp. 214-216.)

3 H. S. Lewis, Director of Parks, has been operating head of the 
Memphis Park System for 16 years (App. 72a). Before that 
time he had considerable experience in recreation work (App. 
85a). He testified:—

"Q. If you are forced to integrate all of these recreational 
facilities, in your opinion, Mr. Lewis, based on your dealings 
with white and Negro alike, would that result in a denial to 
these thirty-five thousand Negro children o f substantial recrea­
tional facilities which they have been enjoying?

A. In my opinion, it will, yes.
Q. Why do' you think that is true, Mr. Lewis, and I will 

ask you first if you are forced into that situation now without 
being able to exercise any discretion o f your own, would you 
have to have more or less supervisors and instructors?

A. You would have to have considerably more.
Q. What about policemen to patrol the various playgrounds 

and parks?
A. In my opinion, we would have to have considerably 

more policemen.
Q. Since opening up the Zoo, have you had to increase 

the police protection there?
A. W e have.
Q. And if every other facility in Memphis were opened up, 

in your opinion, would it also have to be increased ?
A. It would.
Q. And would that or not be a burden upon all the people 

of the City of Memphis?
A. It would be a tremendous burden, yes.
Q. In your opinion, Mr. Lewis, is it going to take consid­

erable time and a whole lot o f patience and understanding for 
you and the other people who head the Park Commission to try 
to work out this problem of racial integration in the public 
parks ?

A. It will, quite a bit.
Q. Is it your desire to offer to every Negro child in Mem-



in maintaining law and order, while this difficulty will be 
greatly diminished if integration is carried out on a grad­
ual basis (App. 101a, 102a).

Petitioners introduced no proof whatever to refute the 
showing made by respondents that harmful effects to both

phis the same treatment, the same facilities that are offered 
to the white people?

A. That is what we try to do to the best of our ability.
Q. And is that the established policy of the Park Commis­

sion ?
A. That is the policy, yes.
Q. Now. Mr. Lewis, have you worked with children quite 

a bit in your capacity as head of the Park Commission ?
A. I have.
Q. And the Park Commission is necessarily closely related 

and deals closely with many children, as you mentioned, about 
a hundred thousand ?

A. Right.
Q. If the recreational program of the Memphis Park Com­

mission is impaired by forced integration, what effect, in your 
opinion, would that have on these thirty-five thousand Negro 
children and sixty-five thousand white children ?

A. W e would have to ,. under the present budget, reduce 
the number of playgrounds drastically in order to give them 
full protection.

Q. And would that, or not, result in a denial of recreational 
facilities to a great number of children, white and Negro?

A. It would.
Q. And in your opinion, would that have some relation to 

juvenile delinquency then?
A. It certainly would.
Q. It speaks for itself, doesn’t it ?
A . Right.
Q. Do you try to keep as many children off the streets 

as you can during the summer vacation period?
A. That is the purpose of our program, yes.
Q. And is one of the purposes of that to cut down on 

juvenile delinquency?
A. It is, yes.
Q. For all children?
A. All children.
Q. Now, Mr. Lewis, you have studied this problem in other 

cities in the country, both north and south ?
A. I have.
Q. And is your opinion based upon a survey of other cities 

as well as your experience here in the City of Memphis for 
the last sixteen years?

A. It is." (App. 83a to 83a.)



Negro and White people would follow if immediate in­
tegration of the races in all parks and facilities were or­
dered. As the Trial Judge, in his Opinion, so aptly 
stated:

“No valid objection to this plan, in the Court’s 
opinion, is offered in this case. The plaintiffs merely 
say they want all these facilities fully integrated 
now. Nothing else seems to matter.”

(App. 3b.)

-— 9 —

“PINK PALACE MUSEUM”.

The City of Memphis acquired “Pink Palace Museum” 
and property on which it is located by deed dated August 
2, 1926 from Garden Communities Corporation. This 
deed provided that the property should be used for benefit 
of White persons only and it reserved right of re-entry 
for breach of such condition or covenant.4

4 Said deed provided:—
“ (c)  Said building and grounds shall be devoted wholly and 

exclusively to public uses for the benefit of persons of the 
Caucasian race only and as a convervatory (sic), art gallery, 
museum of art or natural histroy (sic), library and/or for 
general recreational purposes in connection with the Memphis 
Park System, including parks adjacent thereto; and said second 
party, for itself and its successors, covenants and agrees that 
it will not use, nor suffer or permit said property be (sic)

■ be used under its authority, for any other purpose that is ob­
jectionable or offensive to the residents in said community; 
and that in no event shall any part of said property be used 
in connection with any business for private pecuniary profit, 
but only and solely for public benefit, recreation and culture 
as aforesaid.

(d ) In the event of a breach of either or any of the fore­
going covenants or conditions in any substantial particular, 
and such breaches shall continue for a period of ninety days 
after written notice to Memphis Park Commission, or to the 
commission, board or official to whom its functions may here­
after be delegated, and after a copy of said notice shall be 
delivered to the Mayor or other chief official of the party of 
the second part, or its successor, such notice specifying the 
breach complained of, and for which forfeiture is sought, then 
the foregoing dedication or conveyance shall be and become



—  10

The “Advisory Board Memphis Museum” recom­
mended to the Memphis Park Commission on January 6, 
1959 that the Museum property be sold for residential 
purposes and that a new Museum be built on other City 
property. In response to this request, J. 8. Allen, Es­
quire, the then Park Commission Attorney, submitted 
comprehensive report and summary of titles to the prop­
erty involved and stated in his report dated February 5, 
1959 “that neither the City nor the Park Commission 
could safely sell or cease the use for museum or park 
purposes as to any of the respective properties conveyed 
by these deeds.

Said report and opinion was made before the present 
lawsuit was filed (App. 112a).

Respondents’ present policy with reference to “Pink 
Palace Museum” is not based upon any effort to deny 
Negro citizens of Memphis the right to use of this facility, 
but rather is based upon a policy of attempting to pre­
serve title to the property. Respondents have evinced 
a willingness to remove all race restrictions obtaining at 
said Museum, except for the fact that they feel a removal 
of all restrictions based on race might result in a loss of 
this valuable property to the City and the Park Commis­
sion (App. 112a, 113a).

void at the option or election of said party of the first part, 
or its assigns; and in such event if said breach is not remedied 
and corrected within said period of ninety days, the party of 
the first part, or its assigns may re-enter and take possession 
of said mansion house and every part thereof, including the 
aforedescribed parcel of land on which the same is located, 
and hold the same as of its first and former estate therein, 
with all additions or betterments, free of any claim of said 
second party, or its successors. Provided, such forfeiture shall 
not be permitted if such breach is wholly discontinued or 
remedied within said period of ninety days. A  waiver for any 
period of time of a breach of either or any of the foregoing 
covenants and conditions in any particular shall not preclude 
a forfeiture for a continuance thereof after notice as above 
specified.”  (Exhibit 2.)



11 —

The lower Court, under doctrine of “abstention”, stayed 
any adjudication with reference to said Museum and or­
dered respondents to file action in the Chancery Court 
of Shelby County, Tennessee, before September 15, 1961 
to determine what effect integration of the races at said 
Museum will have upon the City’s title (App. 120a). If 
the State Court holds that the City’s title will not be 
affected by integration of the races, the plan of respond­
ents to integrate “Pink Palace Museum” can be carried 
out and the District Court will not be called upon to make 
any adjudication in regard thereto.5

5 Original Bill for Declaratory Judgment, pursuant to the lower 
Court’s mandate, was filed in the Chancery Court of Shelby County. 
Tennessee, on September 1, 1961, cause number 64064-2 R. D. The 
relief therein sought is a declaratory judgment decreeing that re­
spondents may remove all restrictions based on race in the use 
and enjoyment of “ Pink Palace Museum" and certain adjacent 
properties without jeopardizing or impairing title of the City of 
Memphis to the properties in question.



ARGUMENT.

Petitioners perfected their appeal to the Court of Ap­
peals before the Trial Court had an opportunity to pass 
on respondents’ plan for integration of playgrounds and 
community centers. The District Judge, in line with the 
policy followed in Kelley v. Board of Education of City 
of Nashville, 270 Fed. 2d 209 (6th Cir., 1959), cert. den. 
361 U. S. 924, ordered respondents to submit a more com­
plete plan by December 15, 1961. In view of the appeal, 
of course, the hand of the Trial Judge has been stayed; 
and in this state of the record it would, therefore, seem 
that petitioners are not in any position to insist that 
respondents’ plan for gradual desegregation is inadequate 
or incomplete.

The question presented to the Court, of Appeals and to 
this Court thus narrows itself to the proposition of whether 
the District Judge, as a matter of law, was compelled to 
enter an order requiring respondents to integrate the races 
immediately in all public- parks and recreational facilities 
of the City of Memphis, notwithstanding the undisputed 
proof that it would be manifestly unwise to do so.

The crux of petitioners’ argument is that the Trial 
Judge and the Court of Appeals had no discretion in 
framing a decree in a suit of this character; and that the 
traditional rules of equity, which obtain in injunction 
cases and which are recognized in Brown v. Board of 
Education of Topeka, 349 U. S. 294, 75 S. Ot. 753, 99 L. Ed. 
1083 (second decision decided May 31, 1955), do not apply 
in the field of public parks and recreation. The authority 
cited by petitioners is Florida ex rel. Hawkins v. Board of 
Control, 350 U. S. 413 (1956), in which the Court held 
“ our second decision in the Brown case * * * had no 
application to a case involving a Negro applying for ad­
mission to a state law school.”

—  12 —



Petitioners also rely upon Sweatt v. Painter, 339 U. S.
629, which again involved the right of a Negro to attend 
a state law school.

It is respectfully submitted that the authorities relied 
upon by petitioners are not in point. No reason for 
delay was advanced in the law school cases.

The principles announced in Brown v. Board of Educa­
tion, supra, and further elaborated on in Aaron v. Cooper, 
243 Fed. 2d 361 (8th Cir., 1957), and Kelley v. Board of 
Education of City of Nashville, supra, seem most appro­
priate here. In approving the Nashville plan of gradual 
integration of the public schools, the Court in the Kelley 
Case, said at 270 Fed. 2d at pages 225 and 227:

“ Cases involving desegregation, like other cases, 
depend largely on the facts. While the law has been 
stated, perhaps, as definitely as it can be stated at 
the present time, by the Supreme Court, nevertheless, 
its application depends upon the facts of each par­
ticular case. ‘ [Because] of the great variety of local 
conditions, the formulation of decrees in these cases 
yjresents problems of considerable complexity.’ Brown 
v. Board of Education, 347 U. S. 483, 495, 74 8. Ct. 
686, 692, 98 L. Ed. 873. ‘Full implementation of these 
constitutional principles may require solution of varied 
local school problems. School authorities have the 
primary responsibility for elucidating, assessing, and 
solving these problems; courts will have to consider 
whether the action of school authorities constitutes 
good faith implementation of the governing constitu­
tional principles. Because of their proximity to local 
conditions and the possible need for further hearings, 
the courts which originally heard these eases can best 
perform this judicial appraisal.’ * # *

“  ‘ In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tra-



ditionallv, equity has been characterized by a prac­
tical flexibility in shaping its remedies and by a 
facility for adjusting and reconciling public and pri­
vate needs.’ Brown v. Board of Education, 349 U. S. 
294, 299, 300, 75 S. Ct. 753, 765, 99 L. Ed. 1083. The 
court further went on to say that at stake was the 
personal interest of the plaintiffs in admission to the 
public schools as soon as possible on a non-discrimina- 
torv basis; that effectuating this interest may call for 
elimination of a variety of obstacles in making the 
transition; that courts of equity may properly take 
into consideration the public interest in the elimina­
tion of such obstacles; that, once a start is made, the 
courts may find that additional time is necessary to 
carry out the ruling in an effective manner.

-y. -y- I f i f  _-V*

“ The complaint of appellants is that the plan does 
not conform to the mandate that desegregation take 
place with all deliberate speed. As Mr. Justice Frank­
furter said in his concurring opinion in Cooper v. 
Aaron, supra [358 IT. S. 1, 78 S. Ct. 1412]: ‘ Only the 
constructive use of time will achieve what an ad­
vanced civilization demands and the Constitution con­
firms.’ In the Court of Appeals, in Aaron v. Cooper, 
8 Cir., 243 F. 2d 361, it was observed that a reason­
able amount of time to effect complete integration, in 
certain places, might be unreasonable in other places. 
It was said, in another case, that ‘ a good faith ac­
ceptance by the school board of the underlying prin­
ciple of equality of education for all children with 
no classification of race might well warrant the allow­
ance by the trial court of time for such reasonable 
steps in the process of desegregation as appear to be 
helpful in avoiding unseemly confusion and turmoil.’ 
Orleans Parish School Board v. Bush, 5 Cir., 242 F. 
2d 156, 166.”

— 14 —



— 15

In City of Montgomery v. Gilmore, 277 Fed. 2d 364 (5th 
Cir., 1960), the Court expressly held that the principles 
announced in the second Brown decision should be used 
by trial courts in formulating decrees with respect to 
desegregation of public parks and recreational facilities. 
In that case the Court of Appeals modified the lower 
Court’s injunction so as to empower the Trial Court to 
vacate injunction requiring the City of Montgomery to 
operate all parks on a desegregated basis “ in the event 
it should appear that the defendants may be able to plan 
and act more effectively so as to reopen and operate the 
parks within the framework of the Constitution if they 
are freed from the restraining effects of the injunction.”  
(277 Fed. 2d at p. 368.)

The principle of planned gradual integration in public 
parks and recreational facilities is also recognized in 
Cummings v. City of Charleston, 288 Fed. 2d 817 (4th 
Cir., 1961). In that case Negro citizens of Charleston 
sought immediate access to one municipal golf course. No 
other public facilities were involved. In holding that no 
delay (beyond six months from date of lower Court’s final 
decision) was authorized, the Court said at 288 Fed. 2d at 
p. 817:

“We have searched the record and have found no 
evidence which would tend to explain the postpone­
ment of the effective date of the injunction 
order for what would seem to be an unreasonable 
period of time. We do not hold or even intimate 
that, if justifying circumstances were made to ap­
pear, the trial court could not exercise its sound dis­
cretion. But it is not apparent from the record that 
any real administrative or other problems are here 
involved such as are present in some of the school 
desegregation cases. Indeed, the record discloses 
nothing which would indicate that the injunction



16 —

could not have been made immediately effective.”  
(Emphasis supplied.)

The principle of gradual integration, as announced by 
this Court in the Brown case, has also been applied in the 
field of public housing in the City of Detroit. Cf. Detroit 
Housing Commission v. Lewis, 226 Fed. 2d 180 (6th Cir., 
1955).

In considering the action of the Trial Court in denying 
the application for injunction, it should be borne in mind 
that upon appeal the ruling of the lower Court will not 
be disturbed unless contrary to some rule of equity or the 
result of improvident exercise of judicial discretion. 
Meccano, Ltd. v. John Wanamaker, 253 U. S. 136, 141, 
40 S. Ct. 463, 64 L. Ed. 822; National Fire Ins. Co. of 
Hartford v. Thompson, 281 U. S. 331, 338, 50 S. Ct. 288, 
74 L. Ed. 881. The discretion of the District Judge is 
necessarily broad and a strong showing of abuse must 
be made to reverse it. United States v. W. T. Grant Co., 
345 U. S. 629, 633, 73 S. Ct. 894, 97 L, Ed. 1303.

It would seem that had the lower Court issued injunc­
tion as prayed for, under the undisputed proof as shown 
in this record, it would have been an abuse of discretion, 
Cf. Rippy v. Borders, 250 Fed. 2d 690 (5th Cir., 1957),

Respondents recognize that the Memphis Park System 
and its recreational facilities must under established law 
be operated on a desegregated basis and that the former 
system must be changed in compliance with the law as 
announced by the Supreme Court. The only question 
herein involved is the manner in which this desegrega­
tion should take place. All of the proof introduced upon 
the trial supports the conclusion that gradual integration, 
as opposed to immediate integration, is in the best inter­
est of all the citizens of Memphis, both White and Negro. 
No proof was introduced by the petitioners to support



—  17

their contention that immediate integration is the proper 
method of complying with the law as set forth in the 
Brown and other cases.

Petitioners’ argument that a different rule of equity 
practice should apply to public parks and recreational 
systems, than is applied in public educational systems, 
seems untenable on its face. Manifestly, in view of the 
large numbers of people involved with respect to the 
Memphis Park System, there will be problems inherent in 
any transition from a segregated to a desegregated sys­
tem. Those problems were carefully covered by the Trial 
Court and the Court of Appeals.

Pink Palace Museum.

If the State Court declares, in suit now pending, that 
integration of the races at “Pink Palace Museum” will 
not jeopardize the City’s title to the property, there will 
be no occasion for intervention of the Federal Court, with 
respect to that facility, and respondents’ plan in regard 
thereto can be carried out promptly.

Whether there now exists, in any person, firm or cor­
poration a right of re-entry or right to claim a forfeiture 
of the Museum property, for condition broken, is a ques­
tion of State law. In Charlotte Park & Recreation Com­
mission v. Barringer, 242 N. C. 311, 88 S. E. 2d 114 (1955), 
a similar provision was held to be valid and the United 
States Supreme Court denied certiorari, 350 U. S. 983 
(1956).

Under applicable Tennessee decisions, however, it would 
appear that probably no one has an enforceable right of 
re-entry, for condition broken, with respect to the Museum 
property. See Board v. Baker, 124 Tenn. 39, 134 S. W. 
863 (1910); Yarbrough v. Yarbrough, 151 Tenn. 221, 269 
S. W. 36 (1924). The question presented for determination



in the State Court, however, is, obviously, fraught with 
complexities and difficulties, and cannot be safely resolved 
without final adjudication.

If the State Court holds that there is presently an en­
forceable right of re-entry, for condition broken, with 
respect to the Museum, and the City is unable to acquire 
such right of re-entry from the holder of such right, then 
the constitutional question thereby presented can be deter­
mined by the Federal courts.

The action of the Trial Judge in this case is in line with 
many recent decisions of the United States Supreme Court, 
including cases involving questions of civil rights. Harri­
son v. NAACP (1959), 360 U. S. 167, 3 L. Ed. 2d 1152, 
79 S. Ct. 1925; Thibodaux v. Louisiana Power & Light Co. 
(1959), 360 U. S. 25, 3 L. Ed. 2d 1058, 79 S. Ct. 1070; Me­
ridian v. Southern Bell Telephone & Telegraph Co. (1959), 
358 U. S. 639, 3 L. Ed. 2d 562, 79 S. Ct. 455.

The authority of the District Judge to apply doctrine 
of “ abstention”  to present situation is exhaustively cov­
ered in annotation entitled “ Discretion of federal court to 
remit relevant state issues to state court in which no action 
is pending.”  3 L. Ed. 2d 1827.

A clear statement of principle herein involved is set out 
in the City of Meridian case, where the Court said at 358 
U. S., pp. 640-641:

“ Proper exercise of federal jurisdiction requires 
that controversies involving unsettled questions of 
state law be decided in the state tribunals preliminary 
to a federal court’s consideration of the underlying 
federal constitutional questions. See Railroad Com. 
v. Pullman Co., 312 U. S. 496, 85 L. Ed. 971, 61 S. Ct. 
643. That is especially desirable where the questions, 
of state law are enmeshed with federal questions..

—  IS —



19 —

Spector Motor Service, Inc., v. McLaughlin, 323 U. S. 
101,105, 89 L. Ed. 101,103, 65 S. Ct. 152. Here the state 
law problems are delicate ones, the resolution of which 
is not without substantial difficulty—certainly for a 
federal court. Ct. Thompson v. Magnolia Petroleum 
Co., 309 U. S. 478, 483, 84 L. Ed. 876, 880, 60 S. Ct. 
628. In such a case when the state court’s interpreta­
tion of the statute or evaluation of its validity under 
the state constitution may obviate any need to con­
sider its validity under the Federal Constitution, the 
federal court should hold its hand, lest it render a 
constitutional decision unnecessarily.”

In Harrison v. NAACP, supra, the Supreme Court held 
that the District Court should have abstained from ruling 
on constitutionality of Virginia statutes until a construc­
tion of the statutes could be made by the Virginia courts 
“ which might avoid in whole or in part the necessity for 
federal constitutional adjudication, or at least materially 
change the nature of the problem.”  In that case the Court 
said:

“ This principle does not, of course, involve the ab­
dication of federal jurisdiction, but only the post­
ponement of its exercise; it serves the policy of comity 
inherent in the doctrine of abstention; and it spares 
the federal courts of unnecessary constitutional adju­
dication. See Chicago v. Fieldcrest Dairies, Inc., supra 
(316 U. S. at 172, 173).”

(360 U. S. at p. 177.)

CONCLUSION,

The Trial Court and the Court of Appeals have found 
that respondents have acted and are acting in good faith in 
attempting to comply, in the field of recreation, with the 
opinion of the Supreme Court in the Brown case.



The Court of Appeals has held that “ there was a proper- 
exercise of discretion by the District Court in denying in­
junctive relief, in providing for a plan of desegregation to 
be filed by the Park Commission with the court, and in re­
serving jurisdiction for further proceedings in the case; 
* * Consequently, the petition for writ of certiorari
should be denied.

Respectfully submitted,

J. S. ALLEN,

WALTER CHANDLER, 

FRANK B. GIANOTTI, JR.,

THOMAS R, PREWITT,
Attorneys for Respondents.



-—  21

APPENDIX FOR RESPONDENTS.
OPINION OF TRIAL COURT.

(Docket No. 9, Part of Judgment; Transcript of Evi­
dence, p. 268 et seq., Docket No. 12.)

The Court: Gentlemen, we have had a full hearing today 
of all the matters involved, and here briefly are the 
Court’s views.

The plaintiffs, invoking the Court’s injunctive powers, 
are asking in this proceeding that the defendants be en­
joined forthwith from operating certain public facilities 
under the jurisdiction of the Park Commission of the City 
of Memphis, including golf courses, tennis courts, play­
grounds, parks, and the Pink Palace Museum, upon a 
racially segregated basis.

Restrictions on a number of the facilities here involved, 
including the Brooks Memorial Art Gallery, the boat dock 
at McKellar Lake, and the zoo, were lifted some time ago.

At least twenty-one parks, I believe, are now open to 
general use without restriction.

Now, the defendants are voluntarily proposing in this 
proceeding to remove the restrictions with respect to the 
amusement facilities at the Fairgrounds, and all munici­
pal golf courses, according to a plan which they claim 
is necessary to an orderly transition of its heretofore seg­
regated system to one which will admit all comers with­
out regard to race or color.

The defendants seem to have no objection to a removal 
of the restrictions with respect to the Pink Palace Mu­
seum, but because of certain expressed conditions in the 
deed conveying this property to the city over thirty-five 
years ago, there is a risk which might result in a reverter 
to the original grantor, or its successors. That is, in the 
event of the integration of that facility. With respect to



—  22 —

this particular facility, the defendants are requesting of 
the Court at this time that the legal questions involved 
be left to the state courts for a ruling under the doctrine 
of abstention.

Now, the City of Memphis, through its Park Commis­
sion, carries on a very large and extensive operation in 
the City of Memphis. Its activities are many and varied. 
All things considered, the plan it proposes in this pro­
ceeding to take care of the Fairgrounds amusement facil­
ities and the golf courses the Court is convinced is about 
as good as can be devised. In getting up this plan, many 
things necessarily had to be considered. The effective 
dates with respect to one or two of the golf courses are 
projected into the future to some extent, but the whole 
program under the plan, as the Court understands, may 
and will be accelerated in the light of new developments. 
The Court is well satisfied it is the purpose of the de­
fendants to do this with all deliberate speed.

Of course, in passing upon this plan, local conditions 
to be encountered with respect to maintenance of law and 
order, the avoidance of violence and confusion in the 
community, revenues available from concessions, though 
not absolutely controlling, may, among many other things, 
as practical matters be weighed and considered by the 
Court on application for an injunction of the type here 
sought. Time to organize the change-over to integration 
after all of these years is to the Court important. The 
legal rights of all citizens, white and colored, are not to be 
overlooked in what we do here today.

Apparently the defendants have given consideration to 
these matters. And they, as I say, are matters for the 
Court to consider on application for the injunctive relief 
sought.

It is true no ease dealing with a plan or program of 
integration of facilities as here involved is cited, hut



we do know that onr Court of Appeals in Kelly against 
the Nashville Board of Education, cited by the defend­
ants, approved a so-called stairstep plan for integrating 
the Nashville schools. The reason in that case seems to 
the Court to have application in this case. The problems 
here are somewhat comparable to the problems faced by 
the Nashville schools.

No valid objection to this plan in the Court’s opinion 
is offered in this case. The plaintiffs merely say they 
want all of these facilities fully integrated now. Nothing 
else seems to matter.

The Court believes that good will and understanding 
between the races in this city can be best preserved and 
promoted by the plan here suggested by the defendants. 
The defendants, who are high minded public officials, 
have put much thought and effort into this plan. It is 
sound, fair, feasible and equitable. It is reasonable and 
within the spirit of the law, and the Court is convinced 
is proposed in utmost good faith. The Court approves 
it in all things.

It should be stated here that pending the transition 
period under the plan offered, no citizen will be deprived 
of his right to play golf or to avail himself of other ac­
tivities sponsored by the Memphis Park Commission.

With respect to the Pink Palace Museum, the Court 
thinks it wise that it stay any adjudication which might 
affect the title to this valuable property until the state 
courts can have an opportunity to decide the complex 
questions involved. The doctrine of abstention in mat­
ters of this nature of course has been recognized by the 

•courts, including the Supreme Court, many times.
The Court thinks the defendants, however, should take 

the initiative on this particular matter and get a suit 
under the declaratory judgment act of Tennessee filed in



24

the Shelby County Chancery Court. This should be done 
within ninety days. Incidentally, it occurs to the Court 
that additional parties will be necessary to a full adjudi­
cation of the matter. But this, of course, will be left for 
you lawyers to decide.

The John Rogers tennis courts on Jefferson Avenue 
in all probability will be abandoned as such at an early 
date before the year is out according to the proof, since 
the ground upon which they stand, presently owned by 
the City of Memphis, is too valuable for the purpose for 
which they are presently being used and plans are on foot 
to sell the property. The Court suggests to the defendants 
under their over-all plan that they consider opening up 
these particular facilities by January 1, 1962, on an inte­
grated basis if the property has not been disposed of by 
the City or the tennis courts at that location are not 
abandoned.

Now, no plan is offered in this proceeding concerning 
the integration of other recreational facilities of the Park 
Commission. That is, the playgrounds and community 
centers. The proof is that integration of the races and 
utilization of these facilities is a matter which in the in­
terest of all the citizens of Memphis calls for more study. 
The defendants are not prepared to offer a plan to cover 
this highly important phase of the Park Commission’s 
activities at this time. The Superintendent of this depart­
ment has been asked by the Park Commission to get up 
a plan which will accomplish this objective. The proof 
is that a target date for such integration of the races in 
the use of these particular facilities cannot be set at this 
time. As the Court understands, additional time is neces­
sary for additional study and planning for an orderly 
transition of these activities on an integrated basis.

The Court in the circumstances will not order through 
injunction at this time the immediate integration of these



particular recreational facilities of the Memphis Park 
Commission. It would be unwise for the Court to do so 
for many reasons. Additional time in the Court’s opinion 
is of the essence. It is absolutely necessary for a full con­
sideration of this troublesome matter by the defendants 
so that adequate plans for the transition may be devised 
and agreed upon.

The Court will hold this case open so that these partic­
ular matters can be given further study and consideration 
by the Board of Park Commissioners. The proof is that 
something in the way of a plan could be read}? for sub­
mission to the Court in approximately one to two years. 
The Court in the circumstances does invite the Depart­
ment to submit such a plan in this proceeding, but thinks 
this should be done within a period of six months.

Since the defendants have been acting for some time 
on a voluntary basis and have desegregated a number of 
its facilities, and are in perfect good faith proceeding- 
in an orderly and effective manner to complete the whole 
job with respect to those remaining which are here in­
volved, the Court rules that an injunction is unnecessary.

So, gentlemen, get up a judgment right away approving 
the plan submitted with respect to the Fairgrounds and 
the golf courses and sustaining the defendants’ request 
for stay with respect to the Pink Palace Museum, so that 
the state courts may pass upon the questions there in­
volved.

The judgment should also provide for the filing of a 
plan with respect to the playgrounds and community 
centers within six months.

The costs in this proceeding will be equally divided 
between the plaintiffs and defendants.

Now, the Court in these remarks has only hit the high 
spots. They will serve, at least temporarily, as the Court’s



—  26

findings and conclusions under the rules. Others in more 
detail will probably be necessary, so the Court suggests 
you gentlemen who represent the defendants might within 
the next week get up additional ones to be filed with the 
Court. The Court will need an original and about five 
copies.

Counsel for the plaintiffs may if they desire also pro­
pose findings and conclusions to the Court.

All right, if there is nothing further, Mr. Clerk, adjourn 
court until tomorrow morning at nine-thirty.