Wright v. The City of Brighton Alabama Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 29262 

- - - - - - - x
REBECCA WRIGHT, et al..

Appellants,
versus

THE CITY OF BRIGHTON,
ALABAMA, et al..

Appellees.

Appeal from The United States District Court for The 
Northern District of Alabama 

Southern Division

BRIEF FOR APPELLANTS

JACK GREENBERG JAMES M. NABRIT, III 
NORMAN C. AMAKER 
CONAAD K. HARPER10 Columbus Circle 

Suite 2030New York, N.Y. 10019
DAVID H. HOOD, JR.2111-Fifth Avenue, North 

Bessemer, Alabama 35020
DEMETRIUS C. NEWTON408 North 17th Street Birmingham, Alabama 35203
Attorneys for Appe11ants



I N D E X

Statement of Issues Presented for Review ............
Statement of the Case ......................
Statement of Facts ..........................

Introduction ............................
Hoover Academy ................................

Argument
The Sale of Municipal Property to An Institution 
With Knowledge by The Municipality of The Intended Discriminatory Use of The Property by The Buyer 
Constitutes State Action in Violation of The 
Fourteenth Amendment Where The Municipality 
Maintains An Interest in The Property in The Form of A Purchase Money Mortgage ....................

A. The Purchase Money Mortgage Securedby The City of Brighton Provides 
Continuing State Involvement in The Transaction ..........................

B. Municipal Ordinance 3-69 Authorizing
Sale of City Property for Racially 
Discriminatory Purposes Violated 42 U.S.C. §§ 1981 and 1983 ..................

Conclusion ....................
Certificate of Service ..............................
Appendix: Constitutional and Statutory ProvisionsInvolved

Page

iv
1
3
3
8

9

12

14
20

21

l



Table of Authorities:

Page
Cases:

V’ wilmingt°n Parking Authority, 365 U.S. 715 viy61) • . ...............................................  6, 11, 12
Derrington v. Plummer, 240 F.2d 922 (5th Cir.1956). . 9, 10, 14
Evans v. Newton, 382 U.S. 296 (1966)................  14 15
Ex Parte Virginia, 100 U.S. 339 (1880)................  16, 17
Gomillion v. Lightfoot, 364 U.S. 339 (1960)..............  17

H?5th°cir* C1962°f Jacksonville' Florida, 304 F.2d 320
’' ...................................... 6,13

Hunter v. Erickson, 393 U.S. 285 (1969)..................  19
Jones v. Mayer Co., 392 U.S. 409 (1968)..................  16
Palmer v. Thompson, 419 F.2d 1222 (5th Cir., en banc 1970), 
cert, granted, 38 U.S.L.W. 3405 (U.S. April 20, 1970) 15,16,18

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) . . . .  16
Wimbish v. Penallas County Florida, 342 F.2d 804 (5th Cir., 1965)...................................... ..

Constitutional Provision:
Fourteenth Amendment........  0 Q n _.............................  ^ ^ / 1U

Statutory Provisions: 
Ala. Code Tit. 37, § 404 
Ala. Code Tit. 37, § 462 
28 U.S.C. § 1343(3) . . 
28 U.S.C. § 1343(4) . .

l i



42 U.S.C. § 1981
42 U.S.C. § 1983

Page
. 2, 14, 17, 18
........ 2, 14

iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 29262

REBECCA WRIGHT, et al.,
Appellants,

v.
THE CITY OF BRIGHTON, ALABAMA, 
a Municipal Corporation, et al.,

Appellees.

Appeal From The United States District Court For The Northern 
District of Alabama, Southern Division
STATEMENT OF ISSUES PRESENTED FOR REVIEW
The issues presented for review are:
A. The district court erred in dismissing the complaint 

because enactment of an ordinance for the purpose of selling munici­
pal real property to a racially segregated all-white school denied 
black persons (a) equal benefit of all laws and proceedings, (b) 
equal protection of the laws, (c) due process of law guaranteed by 
42 U.S.C. §§ 1981 and 1983 and the Fourteenth Amendment.

B. The district court erred in dismissing the complaint 
because knowingly selling municipal real property to a racially 
segregated all-white school and continued municipality involvement 
in the school violates the Fourteenth Amendment.

C. The district court erred in dismissing the complaint 
because the school's racially segregated all-white enrollment 
violates 42 U.S.C. § 1981 and the Fourteenth Amendment.

IV



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 29262

REBECCA WRIGHT, et al..
Appellants,

vs.
THE CITY OF BRIGHTON, et al..

Appellees.

Appeal From The United States District 
Court for The Northern District of Alabama 

Southern Division

BRIEF FOR APPELLANTS 
STATEMENT OF THE CASE

This is an appeal from a judgment of the District 
Court for the Northern District of Alabama, Southern Divi­
sion, dismissing Black plaintif fs-appellants "-^complaint.

1/ Rebecca Wright, Ben Walker, Gus Dickerson, PearlieDavis and persons similarly situated pursuant to Rule 23 
of the Federal Rules of Civil Procedure.



This action was filed August 27, 1969 against the 
City of Brighton, Alabama; W.M. Perry, Fred West, Walter W. 
Jenkins, Leonard Lewis, and Richard Lewis as members of 
the City Council; E.B. Parsons individually and as Mayor, 
and Hoover Academy of Hoover, Alabama. (2) The action was 
brought pursuant to Title 28 U.S.C. Sections 1343(3) and 
1343(4) as well as 42 U.S.C. Sections 1981 and 1983 and the 
Fourteenth Amendment. (1) The complaint asserted that 
defendants' action in seeking to lease facilities known as 
the Old Brighton High School, to Hoover Academy, a private 
school for whites only, violated the Fourteenth Amendment, 
denying appellants and their class equal protection and due 
process of law. (2) Appellant also moved the district court 
for a preliminary injunction restraining defendants from 
leasing, selling or contracting with Hoover Academy or other 
persons except for the benefit of all persons without re­
gard to race. (5)

The Motion for Preliminary Injunction came on for 
hearing on September 5, 1969 and on September 15, 1969 the 
court denied the motion. (66) Trial was had December 16,
1969 and by opinion and judgment filed December 29, 1969 
the district court dismissed the complaint. On January 8,
1970 appellant filed notice of appeal.

...A" ■ v

2



STATEMENT OF FACTS
INTRODUCTION

The City of Brighton is a municipality of the State
of Alabama located in Jefferson County, Alabama with a
population of less than 6,000. (63) The City Council is
composed of six members: three blacks, two whites, and the
mayor who is white. (84) Pursuant to Alabama law the Mayor
may vote as a council member and must vote where there is 

- 2/a tie. The building in question was purchased by the 
City of Brighton, by bid, from the Jefferson County Board 
of Education in 1966 following the Board's decision to 
close the school. (173, 174) The school was within two 
blocks of the Brighton City Hall, and remained vacant and 
unused during the City's ownership. (174) On July 16, 1969 
black Councilmen Walter E. Jenkins and Leonard Lewis offered 
a resolution that the City of Brighton rent, lease or pur­
chase the old Brighton Junior High School for the purpose 
of housing all anti-poverty, community action, and food 
stamp programs. (100) The City clerk, Mrs. Ellen Hindman, 
testifying from the minutes stated the resolution was in

2/ Ala. Code, Title 37, Sec. 404

3



effect, tabled, because as worded was of a permanent nature 
and could not be passed at the same meeting in which it was 
introduced. (100) Mayor Parsons made the ruling on the 
motion. (180)

The Council next met in regular session on August 
6, 1969. (103) During discussion of the Jenkins-Lewis re­
solution of July 16, a Mr. C.L. Smith sought recognition 
from the audience. Mr. Smith was recognized and disclosed 
that the Hoover Academy desired to submit a proposal to 
lease the Brighton Junior High School building and re­
quested an opportunity to submit a concrete proposal to 
lease the property. (102) At this point, the council

3/ The complete text, from the minutes of the action
taken on the motion reads: Alderman and Jenkins moved 
immediate adoption of the resolution. The motion was 
seconded by Leonard Lewis. A discussion followed, and 
it was disclosed that the resolution as it was worded 
was of a permanent nature and could not be adopted at the 
same meeting at which it was introduced unless unanimous consent of all members present was first obtained.
4/ One special meeting was held July 28, 1969 forthe purpose of discussing a sewage proposal. No matters material to this case were discussed. (234)

4



Blackrejected the Lewis-Jenkins resolution of July 16, ^  

alderman West then moved that the Mayor be authorized to 
negotiate with representatives of the Hoover Academy, the 
motion was seconded and passed with 5 ayes, no nays and 1 
pass. (103, 104) On August 12, 1969 at a special meeting1̂  
of the Council an ordinance was introduced and passed

5/ Voting as read from minutes into record:Alderman Leonard Lewis, aye
" Richard Lewis, aye
" Jenkins, aye
" Wm. Perry, nayWest, nay 

Mayor Parsons, nay
Whereupon the Mayor ruled the vote tied 3-3, passage had failed.
_6/ Mrs. Ellen Hindman, clerk treasurer, testified that
the August 12 meeting was a special meeting and that she notified Alderman Leonard Lewis, Walter Jenkins and Richard Lewis by 
telephone the morning of the meeting. (108) Councilman Jenkins 
testified later that Mrs. Hindman did not speak to him personally, 
but that the message was left with his wife who informed of the 
meeting upon his return from work approximately 5:15 p.m. (228)
Mrs. Hindman admitted that she did not inform any of the black councilmen of the purpose of the meeting (109)

Mayor Parsons testified and it is not disputed that he called the meeting and authorized the clerk to give notice. (142) 
Ordinance No. 668, Section 3 adopted August 6, 1968 by the Brighton 
City Council provided two methods of calling special meetings; the 
first by the Mayor requiring 24 hour notice to members; the second 
by any two members upon the Mayor's refusal to adhere to written 
request to call a meeting. There is no time limit for notice specified on employing the second method. (129, 130)

5



purporting to authorize the Mayor to lease the building for two 
years, with option to buy or renew the lease at the end of the
first two-year period. The vote on the ordinance was taken and

7 /passed 4-3 with Mayor Parsons voting twice and the three black 
adlermen voting against the ordinance.

On August 27, 1969 the complaint and motion for 
preliminary injunction were filed in the District Court. At 
the hearing on the motion Friday, September 5, 1969 the court 
indicated that the lease might fall within the proscription of 
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961);
Hampton v. City of Jacksonville, Florida. 304 F.2d 320 (5th Cir., 
1962).(84) Whereupon the Mayor promptly called a special meeting^ 
of the council Monday, September 8, 1969 to consider "a proposal 
submitted by Hoover Academy to accelerate its option to purchase 
the Brighton Junior High School building." (117, 118)

7/ Following a general discussion on the proposed ordinanceNo. 2-69, read into the record at 15, 16, specifying terms and 
conditions of the sale as voted on and the vote tied 3-3 whereon 
Mayor Parsons stated that he did exercise his prerogative and duty 
to cast a second affirmative vote, since the ordinance was not of a permanent nature. (107)
8/ Mrs. Hindman testified that there was no motion or
resolution to consider the sale of the property prior to September 8 meeting. (122)

6



Following passage of Ordinance No. 3-69 authorizing
the sale the Mayor signed the deed and received from the

9/Academy the purchase money mortgage. (176, 177) Although 
the city clerk testified that the Ordinances 2-69 and 3-69 
had been published, Mrs. Hindman at trial could produce no 
certificate of publication^^ in what purported to be a copy 
of Ordinance 2-69 authorizing lease (112) or Ordinance 3-69, 
purportedly authorizing sale. (124) The original ordinances 
were subpoenaed by appellants' attorneys. (124)

Mayor E. B. Parsons testified that at the July 16 
meeting, wherein the original Lewis-Jenkins resolution was 
introduced, he made the ruling that the resolution was of a 
permanent nature and could not be acted on without 
unanimous consent of council members present. (185, 186)
He further testified that following the August 16, 1969 
meeting he met with Mrs. Jane Stanton, President of Hoover

9/ According to the terms of the mortgage the cityreceived $12,500; $500 cash payment on delivery of the deed; 
$500 thirty days thereafter and the balance of $100 per month 
on the purchase price of $12,500 until payment in full; 
unpaid principal bearing interest at 6%; first payment due 60 days from date of delivery of deed.
10/ See Ala. Code Title 37, Sec. 462.

7



Academy stating that he initiated the negotiations with 
Mrs. Stantoru (146) Mayor Parsons identified the original 
ordinances 2-69 and 3-69 and stated that neither contained 
certificate of publication by the clerk. (155, 156) The 
Mayor further testified that at time of trial the all- 
white Hoover Academy was the only school building within 
the city limits. (181, 182)

Hoover Academy
Mrs. Jane Stanton as president of Hoover Academy 

testified that no employees, board members or students at 
the Academy were black, (188) nor had there been any blacks 
connected with the school since its incorporation in 1963. 
(193) The District Court found as fact from the evidence 
that it was the policy of the school to accept only white 
students. (85) Mrs. Stanton testified that she first be­
came aware of the availability of the property in July of 
1969. (194) Prior to bringing a written offer to purchase

11/ The record indicates that the court recessed for a brief period during which the subpoenaed ordinances were obtained. (136, 155)

8



the property to Mr. Norman Brown, City Attorney, September 3, 
1969.(195) Mrs. Stanton testified she made overtures to the 
City of Brighton to lease or purchase in July of 1969. (196

Argument
I.

THE SALE OF MUNICIPAL PROPERTY TO AN INSTI­
TUTION WITH KNOWLEDGE BY THE MUNICIPALITY 
OF THE INTENDED DISCRIMINATORY USE OF THE PROPERTY BY THE BUYER CONSTITUTES STATE 
ACTION IN VIOLATION OF THE FOURTEENTH AMEND­
MENT WHERE THE MUNICIPALITY MAINTAINS AN 
INTEREST IN THE PROPERTY IN THE FORM OF A PURCHASE MONEY MORTGAGE

The district court in finding no discrimination in 
the sale of the building to Hoover Academy relied on Derrincrton 
v. Plummer. 240 F.2d 922 (5th Cir., 1956). (89) Judge Rives, 
speaking for the Court stated, 240 F.2d at 925, "no doubt the 
county may in good faith lawfully sell and dispose of its 
surplus property, and its subsequent use by the grantee would 
not be state action. Likewise, we think that, when there is

JL2/ The record shows however that defendants' counsel in
open court acknowledged that negotiations to purchase or sell 
were caused in part by the court's questions on the legality of the lease at the motion hearing. (241)

9



no purpose of discrimination, no noinder in the enterprise, or
reservation_of control by the county, it may lease for private
purposes property not used nor needed for county purposes, and 
the lessee's conduct in operating the leasehold would be merely 
that of a private person." (Emphasis supplied) The court went 
on to hold that these principles did not apply to that case 
because: (1) The courthouse could not be deemed surplus
property not used nor needed for County purposes, and (2) the 
service rendered by the lessee would clearly be violative of 
the Fourteenth Amendment if rendered by the lessor. "The same 
result invitably follows when the service is rendered through 
the instrumentality of a lessee; and in rendering such service 
the lessee stands in the place of the County. His conduct is 
as much state action as would be the conduct of the County 
itself." 240 F.2d at 926. It is not sufficient to state that 
the instant case deals with a sale and not a lease, where the 
state seller knew the nature of the Academy's existing 
operation and its planned use of the property in question.
(195, 196) The specific test noted in Derrington v. Plummer, 
supra, was "when there is no purpose of discrimination, no 
joinder in the enterprise." The question then becomes one of 
whether the sale, made to render an unconstitutional 
transaction constitutional-^^is sufficient joinder in the

13/ It is clear from the record that the agreement to
sell came only upon disclosure by the district court at the 
motion hearing that the proposed lease would probably fall 
within the proscription of Derrinqton v. Plummer, supra. (84)

10



purpose of the enterprise and reservation of control to 
constitute state action. In Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 722 (1961) the Court noted that to 
fashion and apply a precise formula for recognition of state 
responsibility is an "impossible task" which the Supreme 
Court has never attempted. "Only by sifting facts and 
weighing circumstances can the non—obvious involvement of 
the State in private conduct be attributed its true 
significance." 365 U.S. at 722.

In Wimbish v. Penellas County Florida. 342 F.2d 804 
(5 th Cir., 1965), this Court held that tenant's denial of use 
of golf course by blacks was "state action." Racial discrimina­
tion was prohibited by the Fourteenth Amendment where the county 
leased land to a tenant who was obligated to use premises only 
for a golf course, the county had to approve the tenant's plans 
and specifications for improvements, title to improvements vested 
in county, prices charged for golf fees were subject to approval 
by county and tenant was required to establish daily membership 
or green fees, notwithstanding that county had no purpose of 
discrimination in execution of the lease.

In the instant case the City of Brighton's sale must be 
viewed as joinder in purpose as construed in Wimbish. supra.
The city did not begin negotiations for the lease until the

11



black councilmen moved to use the building to house anti- 
proverty programs in the city. (98, 99) The city did not 
begin negotiations for sale until the district court 
suggested a lease with a racially discriminatory lessee 
might be unconstitutional. The sale was thus tainted at 
its inception.

A* THE PURCHASE MONEY MORTGAGE SECURED BY THE
CITY OF BRIGHTON PROVIDES CONTINUING STATE INVOLVEMENT IN THE TRANSACTION
The City of Brigton received from the Hoover

Academy a purchase money mortgage September 9, 1969. (176,
177) (Def. Exhibit 5) The City required the Academy to
purchase insurance on the building (178) and is named
mortgagee in the policy. (179) At the time of the execution
of the mortgage and sale agreements, the City had knowledge of
Hoover's intended use of the building as a school. in the
Wimbish case, supra, the court held that the degree of
involvement by the county was in no way diminished because its
reasons for securing the lease were good faith ones. The court,
citing Burton v. Wilmington Parking Authority, supra, states:
(342 F.2d at 806 )

"It is of no consolation to an individual 
denied the equal protection of laws that it

12



any

was done in good faith. Certainly the cases 
by the various Courts of Appeals do not depend 
upon such a distinction."
The facts of the instant case do not indicate 

showing of good faith in the execution of the sale, or 
tangentially, the purchase money mortgage agreement (see 
footnote 1, supra). Appellants submit that coupled with 
the knowledge of the intended use of the building by Hoover 
Academy, intent to establish a segregated Academy may be 
imputed to Appellees. In Hampton v. City of Jacksonville. 
Florida, 304 F.2d 320 (5th Cir., 1962 ) this Court held:
( 304 F . 2d at 322 )

"Conceptually, it is extremely difficult, 
if not impossible to find any rational basis 
of distinguishing the power or degree of con­
trol, so far as related to the state's involve­
ment, between a long-term lease for a particular 
purpose with a right of cancellation of the lease 
if that purpose is not carried out on the one 
hand, and an absolute conveyance of property, 
subject, however to the right of reversion if 
the property does not continue to be used for 
the purpose prescribed by the state in its deed 
of sale . . . . "

13



The original intent of the appellees was to 
establish a long term lease. (101, 102) The freehold 
conveyance to the Academy was born of appellees' discovery 
of a legal proscription against such leases. The degree of 
control retained by the city may be considered marginal 
when considered singly but must be viewed in conjunction 
with (a) the joinder of purpose in the enterprise described 
in Derrington, supra; (b) the dubious "surplus" nature of 
the property when considered in light of attempts by the 
black councilmen to convert it to a purpose from which the 
entire community could benefit; and (c) the traditionally 
governmental services provided by Hoover Academy. See Evans 
v. Newton. 382 U.S. 296.

B. MUNICIPAL ORDINANCE 3-69 AUTHORIZING SALE
OF CITY PROPERTY FOR RACIALLY DISCRIMINA­
TORY PURPOSES VIOLATED 42 U.S.C. §§ 1981 and 1983.

The District Court in holding that the city had a 
right to sell its surplus property found there was no dis­
crimination in so doing. (86) The Court added:

11 • • . it would be a strange perversion of a 
constitutional right to sell and dispose of property if 
there was a legal interdiction running with the land that 
the property would not be used for the purpose of establish­
ing a private school, even though the school admitted only

14



white students." Appellants submit that this finding is 
error. The right of Black citizens to equal benefit of 
all laws is the substantive right to be considered in the 
context of the City's right to dispose of its property. (86)

In the instant case, the city sold a public 
facility for the purpose of curing an illegal lease of the 
same property with knowledge that the necessary effect of 
such sale would be to establish a segregated educational 
institution in the city.

In the Evans case, supra, the city government 
attempted to escape desegregating a facility by terminating 
the city’s connection with the facility. in the instant 
case the objective of the city was institution of a 
segregated facility, and the method employed was outright 
sale to terminate the city's connection with the facility.
In ?almer v. Thompson. 419 F.2d 1222 (5th Cir., 1969) this 
Court stated the issue involved was "whether the Constitution 
forbids the City of Jackson from withdrawing a badge of 
equality . . .  it cannot be disputed that were the badge 
of equality, here the ability to swim in an unsegregated 
swimming pool, to be replaced by a badge implying inequality - 
segregated pools, the municipality's action could not be 
allowed . . . "  419 F.2d at 1227 in the instant case a
"badge of inequality" is unquestionably attached to the black 
citizens of Brighton as a result of the placement of a Hoover 
Academy in their midst by the act of their city council. The

15



majority in Palmer, supra, held that where facilities are removed 
from the use and enjoyment of the entire community, there was no 
withdrawal of any badge of equality as to any racial group. The 
equal right in the instant case was in the vacant building. 
Although vacant, as city property black citizens held the same 
interest in the building as white citizens but after the sale 
blacks lost this equality. Nor is it an answer that black 
citizens shared equally in the consideration received by the city 
for the sale. In any sale by a municipality of facilities to 
private individuals to perform a service or function public 
in nature or general in character, part of the consideration 
is the undertaking of the function and its usefulness and 
benefit to the community. Since Hoover Academy refuses blacks, 
they cannot be said to have shared equally with white citizens 
in the ordinance permitting sale. This being so, the require­
ment of § 1981 that blacks share equally in all "laws and 
proceedings" has been violated. Cf. Jones v. Mayer Co.. 392 
U.S. 409 (1968); Sullivan v. Little Hunting Park. 396 U.S. 229 
(1969).

In Ex Parte Virginia, 100 U.S. 339 the Court stated:
"The controlling legal principles are plain. The command of 
the Fourteenth Amendment is that no "State shall deny to any 
person within its jurisdiction the equal protection of the 
laws. 'A State acts by its legislative, its executive, or

16



its judicial authorities. It can act in no other way. The 
constitutional provision, therefore, must mean that no 
agency of the State, or of the officers or agents by whom 
its powers are exerted shall deny to any person within its 
jurisdiction the equal protection of the laws. Whoever, by 
virtue of public position under a state government, . . . 
denies or takes away the equal protection of the laws, 
violates the constitutional inhibition', and as he acts in 
the name and for the State, and is clothed with the State's 
power, his act is that of the State. This must be so, or 
the constitutional prohibition has no meaning.' Ex Parte 
Virginia. 100 U.S. 339, 347.

State authority is not insulated from judicial 
control "when state power is used as an instrument for cir­
cumventing a federally protected right. Gomillion v. 
Lightfoot, 364 U.S. 339, 347 (1960). In many cases said 
Justice Frankfurter the court has "prohibited a State from 
exploiting a power acknowledged to be absolute in an 
isolated context." 364 U.S. at 347

Section 1981 provides that "All persons within 
the jurisdiction of the United States shall have the same 
right in every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white

17



citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses and exactions of every kind and 
to no other."

In Palmer v. Thompson, supra, this Court, in 
denying plaintiffs1 claim that closure of all municipal 
swimming pools by the City of Jackson, Mississippi to avoid 
desegregation violated their right to equal protection of 
the laws held that "Motive behind a municipal or a legislative 
action may be examined where the action potentially interferes 
with or embodies a denial of constitutionally protected rights." 
Palmer v. Thompson, supra,at 1228. In the Palmer case the Court 
stated: "The equal protection clause is negative in form, but 
there is no denying that positive action is often required to 
provide 'equal protection.' That is frequently true as to 
essential public functions. Other functions permit more latitude 
of action . . . "  419 F.2d at 1226. There can be no doubt that
the functional purpose of the sale was to house an educational 
institution on a racially segregated basis, a purpose denying 
the § 1981 guarantee of "equal benefit of all laws."

While we doubt Palmer was rightly decided and we note 
the Supreme Court has granted certiorari, 38 U.S.L.W. 3405 
(U.S. April 20, 1970), we do not believe it is controlling 
here because the Palmer majority clearly was concerned about 
possible violence at Jackson, Mississippi's desegregated

18



swimming pools as a reason sustaining the closing of the 
pools. Here there is no hint of violence in the record; 
indeed the selling of public land and a building for 
discriminatory purposes may increase rather than decrease 
the chance of violence.

In Hunter v. Erickson. 393 U.S. 285 (1969) where 
the City of Akron, Ohio amended its charter to prevent the 
city council enacting an open housing ordinance without 
the approval of a majority of voters, the Court found a 
denial of equal protection in that "only laws to end 
housing discrimination based on 'race, color, religion 
national origin or ancestry must run §137's gauntlet." 393 
U.S. at 390 . In the instant case the ordinance effects a
discrimination as clear and an inequality as blatant as the 
ordinance in Hunter, supra. The Brighton ordinance was 
conceived to aid Hoover Academy in its purpose of providing 
racially segregated education. Appellants submit that this 
is the requisite participation to constitute state action 
in violation of the Fourteenth Amendment and the substantive 
ii^snt and effect of the sale and the ordinance authorizing 
it denied appellants "full benefit of all laws and proceedings" 
as is enjoyed by white citizens.

19



CONCLUSION

For the foregoing reasons, the district court
should be reversed.

Respectfully submitted.

u  r \ \ ~  xx VJXXUX^L>li3XjX\Vor

NORMAN C. AMAKER 
CONRAD K. HARPER

10 Columbus Circle 
New York, N.Y. 10019

DEMETRIUS C. NEWTON
408 North 17th Street 
Birmingham, Alabama 35203

Dated: May 18, 1970.

20-



CERTIFICATE OF SERVICE

This is to certify that on the 18th day of May, 1970
the undersigned, one of counsel for appellants, served two 
copies each of the foregoing Brief for Appellants upon appellee. 
City of Brighton, represented by Mr. Brown and upon appellee, 
Hoover Academy, represented by Mr. Locke, by mailing same via 
United States mail postage prepaid, addressed as indicated below:

Norman K. Brown, Esq. 
Realty Building 
Bessemer, Alabama
Hugh Locke, Esq.
923 Frank Nelson Building Birmingham, Alabama

21



A P P E N D I X



CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fourteenth Amendment to the 
United States Constitution.

This case also involves 42 U.S.C. § 1981:
All persons within the jurisdiction of 

the United States shall have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit 
of all laws and proceedings for the security 
of persons and property as is enjoyed by 
white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, 
and exactions of every kind, and to no other.
This case also involves 42 U.S.C. § 1983:

Every person who, under color of any 
statute, ordinance, regulation, custom, or 
usage, of any State or Territory, subjects, 
or causes to be subjected, any citizen of the 
United States or other person within the 
jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by 
the Constitution and laws, shall be liable to 
the party injured in an action at law, suit in 
equity, or other proper proceeding for redress.



I •