Simkins v Moses H Cone Memorial Hospital Brief for Appellant

    BRIEF FOR APPELLAN T, UNITED STATES OF 
AM ERICA

In the United States Court of Appeals
for the Fourth Circuit

No. 8908
GL C. Sim kins , J r., et al., and U nited States of 

A merica, appellants 
v.

M oses EL Cone M emorial H ospital, a Corporation 
ET AL., APPELLEES

ON A PPE A L FROM  THE UNITED STATES D ISTR IC T COURT FOR  
THE M ID D LE D ISTR IC T OF NORTH CAROLINA

BURKE M ARSHALL,
Assistant A ttorn ey General, 

W IL L IA M  H. MURDOCK,
United States Attorney,

ST. JOHN BARRETT,
HAROLD H. GREENE,
HOW ARD A. GLICKSTEIKT,

A ttorneys,
Departm ent o f Justice, W ashington 25, D.C.



I N D E X

Statement of the case___________________________________  1
Questions presented_____________________________________  7
Statutes involved________________________________________ 8
Statement of facts_______________________________   10
Argument_______________________________________________  15

I. The conduct of defendant hospitals in discriminat­
ing against N egro patients is State action----------- 15

A. The controlling principles________________  15
B. The hospitals are acting for the State and

are subject to constitutional limitations. 20
C. The non-discrimination provision of the

Hill-Burton A ct_______________________  32
II. The provision of the Hill-Burton Act sanctioning 

the construction of separate-but-equal hospital
facilities is unconstitutional____________________ 40

Conclusion______________________________________________  48

TABLE OF CASES

Aaron v. Cooper, 261 F. 2d 97 (C.A. 8, 1958)-------------------  17
American Communications Ass’n v. Douds, 339 U.S. 382

(1950)________________________________________________  16
Ashwander v. Tennessee Valley Authority, 297 H.S. 288

(1936)_________________________________   40
Baldwin v. Morgan, 287 F. 2d 750 (C.A. 5, 1961)________ 35,43
Bolling v. Sharpe, 347 U.S. 497 (1954)________________ 16,43, 45
Boman v. Birmingham Transit Gompany, 280 F. 2d 531

(C.A. 5, 1960)________________________________________  35
Boynton v. Virginia, 364 U.S. 454 (1960)-------------------------  23
Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala., 1956),

affirmed, 352-U.S. 903 (1956)----------------------------------------  42
Brown v. Board of Education, 347 U.S. 483 (1954)------------  42
Burton v. United States, 196 U.S. 283 (1905)--------------------- 40
Button v. Wilmington Parking Authority, 365 U.S. 715

(1961)____________________________________  5,17,18,38,41,44

Page

( i )
6T7083— 63— 1



Catlette v. United States, 132 F. 2d 902 (C.A. 4, 1943)_____ 45
City of Greensboro v. Simpkins, 246 F. 2d 425 (C.A. 4, 1957),

affirming, 149 F. Supp. 562 (M.D. N.C. 1957)_________  17
Civil Rights Cases, 109 U.S. 3 (1883)_________________  15, 19, 34
Coke v. City of Atlanta, 184 F. Supp. 579 (N.D. Ga. 1960)_ 17
Cooper y. Aaron, 358 U.S. 1 (1958)_______________________ 16,44
Dawson v. Mayor and City Council of Baltimore, 220 F. 2d

386 (C.A. 4, 1955), affirmed, 350 U.S. 877 (1955)_______ 42
Eaton v. Board of Managers of James Walker Memorial 

Hospital, 261 F. 2d 521 (C.A. 4, 1958), cert, denied, 359
U.S. 984 (1958)__________________________ _____________  5

Flemming v. South Carolina Electric and Gas Company, 224
F. 2d 752 (C.A. 4, 1955), appeal dismissed, 351 U.S. 901 _ 35

Garner v. Louisiana, 368 U.S. 157 (1961)________________  28
Gomillion v. Lightfoot, 364 U.S. 339 (1960)_______________  46
Henry v. Greenville Airport Commission, 279 F. 2d 751 (C.A.

4, 1960)______________________________________________  42
Hirabayashi v. United States, 320 U.S. 81 (1943)__________  46
Hurd v. Hodge, 334 U.S. 24 (1948)_______________________  46
Jones v. Marva Theatres, 180 F. Supp. 49 (D. Md. 1960)__  17
Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W. Va. 1948)_ 17
Lynch v. United States, 189 F. 2d 476 (C.A. 5, 1951)______ 45
Marsh v. Alabama, 326 U.S. 501 (1946)__________________  23
Ming v. Horgan, 3 RR. L. Rep. 693 (Cal. Super. Ct. 1958)- 46
Muir v. Louisville Park Theatrical Association, 347 U.S. 971 

(1954), vacating and remanding, 202 F. 2d 275 (C.A. 6,
1953)________    17

McCabe v. Atchison, Topeka and Santa Fe Ry. Co., 235 U.S.
151 (1914)________________________________________  37,38,44

Nash v. Air Terminal Services, 85 F. Supp. 545 (E.D. Va.
1949)_____________________________________________   17

Nixon v. Condon, 286 U.S. 73 (1932)_____________________  23
Picking v. Pennsylvania R. Co., 151 F. 2d 240 (C.A. 3,

1945)_________________________________________________  45
Ples.sy v. Ferguson, 163 U.S. 537 (1896)__________________ 37,43
Smith v. Allwright, 321 U.S. 649 (1944)__________________  23
Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192

(1944)_________________________________________________ 43,45
Strauder v. West Virginia, 100 U.S. 303 (1880)__________  42

n

Page



Tate v. Department of Conservation, 133 F. Supp. 53 (E.D.
Ya., 1955), affirmed, 231 F, 2d 615 (C.A. 4, 1956), cert.
denied, 352 U.S. 838 (1956)------------------------------------------- 17, 42

Terry v. Adams, 345 U.S. 461 (1953)-------------------------------  23
United States v. Auto Workers, 352 U.S. 567 (1957)---------
Western Union Telegraph Co. v. Foster, 247 U.S. 105 (1918) _ 46
Williams v. Hot Shoppes Inc., 293 F. 2d 835 (C.A. D.C.

1961)_________________________________________________  36

STATUTES
28 U.S.C. 2403__________________________________________  3
42 U.S.C. 291(a)______________________________  21,28,30,32,41
42 U.S.C. 291b(a)(3)-------------------------------------------------------  21
42 U.S.C. 291d__________________________________________  28
42 U.S.C. 291e(f)________  3, 7, 13, 20, 22, 29, 30, 31, 32, 39, 42, 47
42 U.S.C. 291f(a)(4)_____________________________________  13,21
42 U.S.C. 291h(a)_______________________________________  28
42 U.S.C. 291h(e)_______________________________________  34
42 U.S.C. 291m_________________________________________ 29, 30
42 U.S.C. 291n__________________________________________  28
42 U.S.C. 2641-2643____________________________________  26
42 U.S.C. 2642(b)_______________________________________  26
42 C.F.R. 53____________________________________________  25
42 C.F.R. 53.111________________________________________  8,26
42 C.F.R. 53.112______________________________ 2, 8, 9, 14, 15, 26
42 C.F.R. 53.113______________________________________  9, 14,26
42 C.F.R. 53.127(d)_____________________________________  25
Rule 24a of the Federal Rules of Civil Procedure-------------  3

MISCELLANEOUS

H. Rep. No. 2519, 79th Cong____________________________  29
BLR. No. 1756, 87th Cong., 2d Sess---------------------------------  26
Senate Report No. 674, 79th Congress, 1st Sess----------------21, 29
Hearings Before Senate Committee on Education and

Labor on S. 191, 79th Cong., 1st Sess---------------------------  22
91 Cong. Rec. 11714--------------------------------------------------------  29
91 Cong. Rec. 11716-------    24
Cong. Rec. August 28, 1962, p. 16856------------------------------  27

Ill

Page



In the United States Court of Appeals
for the Fourth Circuit

No. 8908

G-. C. S im kins , Jr., et al., and U nited States op 
A merica, appellants 

v.
M oses H. Cone M emorial H ospital, a Corporation 

et al., appellees

ON A P P E A L  FROM  T E E  UNITED STATES D ISTR IC T COURT FOR  
TIIE M ID D LE D IST R IC T  OF N O R TE  CAROLINA

BRIEF FOR APPELLANT, UNITED STATES OF AMERICA

STATEMENT OF THE CASE

On February 12, 1962, the plaintiffs, Negro citizens 
suing on behalf of themselves and other Negro 
physicians, dentists and patients similarly situated, 
filed a complaint seeking injunctive and declaratory 
relief in the United States District Court for the 
Middle District of North Carolina (4aj. The com­
plainants alleged, inter alia, that the defendants—-the 
Moses H. Cone Memorial Hospital, its director, 
Harold Bettis, the Wesley Long Community Hospital 
and its administrator, A. 0. Smith—had discriminated 
against them because of their race in violation of the 
Fifth and Fourteenth Amendments to the United



2

States Constitution (13a-14a). The relief sought was 
(1) an injunction restraining the defendants from 
continuing to enforce the policy, practice, custom and 
usage of denying plaintiff physicians and dentists the 
use of staff facilities at the Moses H. Cone and Wesley 
Long Community Hospitals in Greensboro, North 
Carolina, on the ground of race; (2) an injunction- 
restraining defendants from continuing to enforce the 
policy, practice, custom and usage of denying and 
abridging admission of patients on the basis of race 
and refusing to permit patients, on the basis of race, 
to be treated by their own physicians and dentists at 
the Moses H. Cone Memorial Hospital and the Wesley 
Long Community Hospital in Greensboro, North Caro­
lina ; (3) a declaratory judgment declaring a portion 
of the Hill-Burton Act (Hospital Survey and Con­
struction Act of 1946, 60 Stat. 1041, as amended; 42 
ILS.C. 291 et seq.) and a regulation pursuant thereto 
(42 C.F.R. 53.112; 21 F.R. 9841), which authorize 
the construction of hospital facilities and the promo­
tion of hospital services with funds of the United 
States on a separate-but-equal basis, unconstitutional, 
invalid and void as violative of the Fifth and Four­
teenth Amendments to the United States Constitution 
(17a-18a). Subsequently (on May 4, 1962) the plain­
tiffs filed a motion for preliminary injunction and a 
motion for summary judgment (68a; 72a).

On April 2, 1962, the defendants filed a motion to 
dismiss for lack of jurisdiction over the subject mat­
ter for the reason that the plaintiffs were seeking 
redress for the alleged invasion of their civil rights 
by private corporations and individuals (19a).



3

Since this proceeding is one in which “ the constitu­
tionality of * * * [an] Act of Congress affecting the 
public interest * * * [has been] drawn in question,”  
the United States, pursuant to 28 U.S.C. 2403 and 
Rule 24(a) of the Federal Rules of Civil Procedure, 
moved on May 8, 1962, to file a pleading in interven­
tion (165a). This pleading in intervention alleged 
that “ the Moses TL Cone Memorial Hospital has 
refused and is presently refusing to admit Negro 
patients on the same terms and conditions as white 
patients;” that “ the Wesley Long Community Hos­
pital has refused and is refusing to admit Negro 
patients on the basis of race;”  that the conduct of 
the hospitals complained of was authorized by the 
North Carolina State Plan of Hospital Construction 
which was adopted pursuant to the Hill-Burton Act 
and the regulations issued thereunder; and that the 
conduct of the hospitals violates the Fourteenth 
Amendment of the Constitution (171a). The United 
States prayed that the District Court declare that so 
much of 42 U.S.C. 291e(f) as authorizes the Surgeon 
General to prescribe regulations concerning separate 
hospital facilities for separate population groups is 
unconstitutional, null and void (171a-172a).

On August 9, 1962, the United States moved for 
summary judgment and asked for: (1) declaratory 
relief with respect to the challenged portion of the 
Hill-Burton Act, and (2) an injunction enjoining the 
defendant hospitals from discriminating, on account 
of race and color, in the admission of patients (189a).

On June 26, 1962, the District Court held a full



4

hearing on all pending motions, at the conclusion o f 
which an order was entered granting the motion of 
the United States to intervene (188a). The case was 
submitted to the District Court on the documentary' 
evidence filed by the parties, and on December 5, 1962, 
the Court issued its findings of fact, conclusions of law 
and opinion (211 U  Supp. 628; 195a-222a). The 
Court noted that “ the sole qxiestion for determination 
is whether the defendants have been shown to be so 
impressed with a public interest as to render them 
instrumentalities of government, and thus within the 
reach of the Fifth and Fourteenth Amendments to 
the Constitution of the United States. In making this 
determination, it is necessary to examine the various 
aspects of governmental involvement which the plain­
tiffs contend add up to make the defendant hospitals 
public corporations in the coUstitutional sense”  
(206a-207a). The Court analyzed each of the factors 
alleged to demonstrate state involvement and rejected 
each as a sufficient basis for creating constitutional 
obligations (221a).

With respect to the receipt of Hill-Burton funds, 
the Court noted that “ all funds received, or to be 
received, by both hospitals were allocated and granted 
to, and accepted by, the hospitals with the express 
written understanding that admission of patients to 
the hospital facilities might be denied because of race, 
color or creed”  (214a). The Court found that the 
fimds granted were unrestricted and that the federal 
regulations governing Hill-Burton appropriations are



5

designed to ensure properly planned and well con­
structed facilities and not to control internal opera­
tions. The Court concluded (217a) :

Since no state or federal agency has the right 
to exercise any supervision or control over the 
operation of either hospital by virtue of their 
use of Hill-Burton funds, other than factors 
relating to the sound construction and equip­
ment of the facilities, and inspections to ensure 
the maintenance of proper health standards, 
and since control, rather than contribution, is 
the decisive factor in determining the public 
character of a corporation, it necessarily fol­
lows that the receipt of unrestricted Hill- 
Burton funds by the defendant hospitals in no 
way transforms the hospitals into public 
agencies.

The Court also rejected the argument that a differ­
ent result would be required if instead of concentrat­
ing on individual elements it considered the totality 
of governmental contacts. The Court accepted the 
defendants’ argument that “ zero multiplied by any 
number would still equal zero”  (218a). It distin­
guished Burton v. Wilmington Parking Authority, 
365 TJ.S. 715 (1961) and relied on Eaton v. Board of 
Managers of James Walker Memorial Hospital, 261 
F. 2d 521 (C.A. 4, 1958), cert, denied, 359 U.S. 984 
(1958)d

1In that case, although there were certain contacts between 
the hospital and governmental bodies, the Court found that 
the discriminatory policies of the hospital were not subject to 
constitutional restriction.

677083— 68-------2



6

The Court expressly refused to pass on the constitu­
tionality of the Hill-Burton proviso, stating (220a- 
221a) :

It is a cardinal principle that courts do not 
deal in advisory opinions, and avoid rendering 
a decision on constitutional questions unless it 
is absolutely necessary to the disposition of the 
case. Barr v. Matteo, 355 U.S. 171, 2 L. Ed. 2d 
179, 78 S. Ct. 204 (1957). I f  the defendants 
were claiming any right or privilege under the 
separate but equal provisions of the Hill- 
Burton Act, it would perhaps be necessary to 
the disposition of the case to rule upon the con­
stitutionality of those provisions. Here, how­
ever, as earlier stated, the defendants make no 
such claim, and it is unnecessary for the Court, 
as requested by the United States, to advise the 
Surgeon General with respect to his legal obli­
gations under the Act. There has been no 
showing that the statute in question has resulted 
in depriving the plaintiffs or any other citizens 
of their constitutional rights. The only issue 
involved in this litigation is whether the defend­
ants have become governmental agencies in 
the constitutional sense by the acceptance of 
public fimds in the construction and equipment 
of their hospitals, and their other involvements 
with public agencies. The constitutionality of 
the separate but equal provisions of the Hill- 
Burton Act is not an issue, and a declaration 
as to its constitutionality is not necessary to 
the disposition of the case.

What the plaintiffs and the United States 
are really asking in their prayer for declara­
tory relief is an order desegregating all private 
facilities receiving Hill-Burton funds over a



7

period of years, even though the funds were 
given with the understanding that the private 
facilities might retain their freedom to conduct 
their private affairs in their own way. This 
court is not prepared to grant the declaratory 
relief prayed for, thereby retroactively altering 
established rights, particularly when it is unnec­
essary to do so, in deciding the jurisdictional 
question.

The Court concluded that since the defendants were 
“ private persons and corporations, and not instrumen­
talities of government (221a),” they were not subject 
to the Fifth and Fourteenth Amendments and that, 
consequently, the Court was without jurisdiction over 
the subject matter of the action. The motions for 
summary judgment by the plaintiffs and by the United 
States were denied and the defendants’ motion to 
dismiss the action for lack of jurisdiction over the 
subject matter was granted (223a).

Plaintiffs and the United States filed notices of 
appeal January 4 and 11, 1963 respectively (224a, 
225a).

QUESTIONS PRESENTED

1. Whether, as a result of defendants’ participation 
in the Hill-Burton hospital system, they are governed 
by the due process clause of the Fifth Amendment or 
the equal protection clause of the Fourteenth Amend­
ment in their admission policies.

2. Whether those portions of 42 U.S.C. 291e(f) and 
42 C.F.R. 53.112 which authorize racial discrimination 
violate the Fifth or Fourteenth Amendments.



8

STATUTES INVOLVED

42 U.S.C. 291e(f) provides:
( f )  That the State plan shall provide for 

adequate hospital facilities for the people re­
siding in a State, without discrimination on 
account of race, creed, or color, and shall pro­
vide for adequate hospital facilities for persons 
unable to pay therefor. Such regulation may 
require that before approval of any application 
for a hospital or addition to a hospital is recom­
mended by a State agency, assurance shall be 
received by the State from the applicant that 
(1) such hospital or addition to a hospital will 
be made available to all persons residing in the 
territorial area of the applicant, without dis­
crimination on account of race, creed, or color, 
but an exception shall be made in cases where 
separate hospital facilities are provided for 
separate population groups, if the plan makes 
equitable provision on the basis of need for fa­
cilities and services of like quality for each such 
group; and (2) there will be made available in 
each such hospital or addition to a hospital a 
reasonable volume of hospital services to per­
sons unable to pay therefor, but an exception 
shall be made if such a requirement is not feasi­
ble from a financial standpoint.

42 C.F.R. §§ 53.111-53.113 provide:
§ 53.111 General. The State plan shall pro­

vide for adequate hospital, diagnostic or treat­
ment center, rehabilitation facility, and nursing 
home service for the people residing in a State 
without discrimination on account of race, 
creed, or color, and shall provide for adequate 
facilities of these types for persons unable to 
pay therefor.



9

§ 53.112 Nondiscrimination. Before a con­
struction application is recommended by a State 
agency for approval, the State agency shall ob­
tain assurance from the applicant that the 
facilities to be built with aid under the Act will 
be made available without discrimination on ac­
count of race, creed, or color, to all persons 
residing in the area to be served by that facility. 
However, in any area where separate hospital, 
diagnostic or treatment center, rehabilitation or 
nursing home facilities, are provided for sep­
arate population groups, the State agency may 
waive the requirement of assurance from the 
construction applicant if (a) it finds that the 
plan otherwise makes equitable provision on 
the basis of need for facilities and services of 
like quality for each such population group in 
the area, and (b) such finding is subsequently 
approved by the Surgeon General. Facilities 
provided under the Federal Act will be consid­
ered as making equitable provision for separate 
population groups when the facilities to be 
built for the group less well provided for here­
tofore are equal to the proportion of such group 
in the total population of the area except that 
the State plan shall not program facilities for 
a separate population group for construction 
beyond the level of adequacy for such group.

§ 53.113 Hospital, diagnostic or treatment 
center, rehabilitation facility, and nursing home 
service for persons unable to pay therefor. 
Before a construction application is recom­
mended by a State agency for approval, the 
State agency shall obtain assurance that the 
applicant will furnish a reasonable volume of 
free patient care. As used in this section, “ free



10

patient care”  means hospital, diagnostic or 
treatment center, rehabilitation facility, or nurs­
ing home service offered below cost or free to 
persons unable to pay therefor, including under 
“ persons unable to pay therefor” , both the 
legally indigent and persons who are otherwise 
self-supporting but are unable to pay the full 
cost of needed care. Such care may be paid 
for wholly or partly out of public funds or 
contributions of individuals and private and 
charitable organizations such as community 
chests or may be contributed at the expense of 
the hospital itself. In determining what con­
stitutes a reasonable volume of free patient care, 
there shall be considered conditions in the area 
to be served by the applicant, including the 
amount of free care that may be available other­
wise than through the applicant. The require­
ment of assurance from the applicant may be 
waived if the applicant demonstrates to the sat­
isfaction of the State agency, subject to subse­
quent approval by the Surgeon General, that 
furnishing such free patient care is not feasible 
financially.

STATEMENT OF FACTS 2

Six of the plaintiffs are qualified physicians and 
three are qualified dentists, all practicing in Greens­
boro, North Carolina (197a). These plaintiffs seek 
admission to the staff facilities of the Cone Hospital 
and the Long Hospital without discrimination on the 
basis of race (197a). They have applied for admis­

2 We emphasize only those facts that are pertinent to the 
argument made in this brief. A  complete statement o f the facts 
is contained in plantiffs’ brief, pp. 5-19.



11

sion to the staff of Cone Hospital and have been re­
jected, and they have requested staff application forms 
from Long Hospital but these requests have not been 
honored (198a).

Plaintiffs A. J. Taylor and Donald R. Lyons are in 
need of medical treatment and desire to enter either 
the Wesley Long Community Hospital or the Moses 
H. Cone Memorial Hospital where complete medical 
equipment and the best facilities for treatment in the 
Greensboro area are available. Plaintiffs also desire 
treatment from their personal physicians (197a). 
They cannot, however, be admitted to the Long Hos­
pital since that hospital follows a policy, practice, 
custom and usage of refusing to admit Negroes to the 
use of its facilities. Plaintiffs cannot enter the Cone 
Hospital on the same basis as whites nor can they 
enter the Cone Hospital and be treated by their per­
sonal physicians because the Cone Hospital will not 
admit Negro doctors or dentists to staff facilities 
(198a).

Defendants, Moses H. Cone Memorial Hospital, Inc., 
and Wesley Long Community Hospital, Inc., are 
North Carolina corporations that have established and 
now maintain in Greensboro, North Carolina, the 
Moses H. Cone Memorial Hospital and the Wesley 
Long Community Hospital, respectively, which are 
non-profit, tax exempt and State licensed (197a). De­
fendant Harold Bettis is the Director of the Moses H. 
Cone Memorial Hospital, Inc. and defendant A. O. 
Smith is the Administrator of the Wesley Long Com­
munity Hospital (198a).



12

The Long Hospital is a charitable corporation gov­
erned by a self-perpetuating board of twelve trustees 
(200a). The Cone Hospital is also a charitable North 
Carolina corporation governed by fifteen trustees of 
which five are appointed by agents or subdivisions of 
the State and one is appointed by a “public agency”  
(199a).3

Both hospitals are exempt from ad valorem taxes 
assessed by the City of Greensboro and Guilford 
County at tax rates of $1.27 and $0.82 per $100 valu­
ation respectively (200a).

The Cone Hospital cooperates in a nurses’ training 
program with two tax-supported institutions of higher 
learning.4

The Cone and Long Hospitals are part of the Hill- 
Burton Hospital system. Plaintiffs, in their brief, 
have set forth in detail the nature of the relationship 
between the defendant hospitals and the Hill-Burton 
system. They also discuss the extent of federal finan­
cial contributions to defendant hospitals, the nature 
of the North Carolina State Plan of Hospital Care

3 Three members are appointed by the Governor of North 
Carolina; one member is named by the Board of Commissioners 
of the City of Greensboro; one member is named by the Board 
of Guilford County; and one member by the Guilford County 
Medical Society (199a). The Guilford County Medical So­
ciety is a component o f the Medical Society o f North Carolina 
which appoints the Board of Medical Examiners o f North 
Carolina and elects four members of the State Board of Health 
(11a). The District Court assumed for purposes o f its decision 
that the Guilford County Medical Society is a “ public agency” 
(207a).

4 See plaintiffs’ brief, pp. 18-19, for a detailed description 
of that program.



13

and the sundry federal and state controls over defend­
ants’ activities.5

These controls are divided into seven categories:
(1) Controls over the construction contracts and the 

construction period;
(2) Controls over details of hospital construction 

and equipment;
(3) Controls over future operations and status of 

hospitals;
(4) Controls over details of hospital maintenance 

and operation;
(5) Control of size and distribution of facilities;
(6) Rights of project applicants and state agencies;
(7) Regulation of racial discrimination.
We believe that plaintiffs’ description of defendants’ 

relationship to the Hill-Burton system is well stated, 
and we will not duplicate their discussion. However, 
we would like to add the following to the discussion 
of the manner in which the Hill-Burton Act regulates 
racial discrimination and the provision of services to 
the needy.

A State, to participate in the Hill-Burton program, 
is required to submit for approval by the Surgeon 
General a state plan setting forth a “ hospital con­
struction program”  which, among other things, “meets 
the requirements as to lack of discrimination on ac­
count of race, creed, or color, and for furnishing 
needed hospital services to persons unable to pay 
therefor, required by the regulations prescribed under 
section 291 e (f). * * *”  (42 U.S.C. 291f(a)(4).)

5 See plaintiffs’ brief, pp. 8-18.
677083— 63- -3



(14

The State may meet the non-discrimination require­
ment “ in any area where separate hospital, diagnostic 
or treatment center, rehabilitation or nursing home 
facilities, are provided for separate population groups 
* * * if  * * * the plan otherwise makes equitable pro­
vision on the basis of need for facilities and services 
of like quality for each such population group in the 
area, and * * * such finding is subsequently approved 
by the Surgeon General.”  (Regulation 52.112, 42 
C.F.R., 53.112.6) Where a separate-but-equal plan is 
in operation, the individual applicant for aid need not 
give any assurance that it will not discriminate and, 
in fact, may expressly indicate on its application 
form that “ certain persons in this area will be denied 
admission to the proposed facilities as patients because 
of race, creed, or color”  (93a). The arrangement to 
extend aid is formally concluded by a memorandum 
of agreement signed by representatives of the appli­
cant, the State agency and the Surgeon General.

Where a State seeks to meet the non-discrimination 
requirement by programming separate facilities for 
separate population groups, it is required to submit 
to the Surgeon General a “ Non-Discrimination 
Report”  (Form PH S-8) (120a-121a). The prepa­
ration of this report requires the State agency specifi­
cally to enumerate the number of hospital beds 
available for each racial group. The North Carolina

6 The requirement to provide care for the needy will be 
waived “ if the applicant demonstrates to the satisfaction of 
the State agency, subject to subseqiient approval by the Sur­
geon General, that furnishing such free patient care is not 
feasible financially.”  (Regulation 53.113, 42 C.F.R. 53.113.)



15

Medical Care Commission submitted such a “ Non- 
Discrimination Report”  on January 3, 1962 (120a- 
121a).

That report lists the L. Richardson Memorial Hos­
pital as having 91 acceptable beds for “ non-white” 
patients and none for “ white” ; Wesley Long Com­
munity Hospital as having none for “ non-white”  
patients and 220 for “ white” ; and Moses H. Cone 
Hospital as having none for “ non-white”  and 182 
for “ white”  (120a).

Significant duties are imposed on the Surgeon Gen­
eral with respect to the “ Non-Discrimination Report.”  
Regulation 53.112 provides that a State agency’s find­
ings must be approved by the Surgeon General.7 
Consequently the Surgeon General has the duty of 
determining whether the State properly has applied 
the separate-but-equal formula, i.e., whether the 
State’s plan actually makes “ equitable provision”  for 
all population groups.

AEGU M EST

I. The conduct o f defendant hospitals in discriminating 
against Negro patients is State action

A. The controlling principles

From the declaration in the Civil Bights Cases, 109 
U.S. 3, 11 (1883), that the Fourteenth Amendment 
“ nullifies and makes void * * * State action of every 
kind, which * * * denies * * * the equal protection 
of the laws”  to the Supreme Court’s pronouncement

7 The “ Non-Discrimination Report” submitted by the North 
Carolina Medical Care Commission on January 3, 1962 was 
approved by the Surgeon General on January 22, 1962 (120a).



16

in Cooper v. Aaron, 358 IJ.S. 1, 19 (1958), that state 
participation ‘ ‘ through any arrangement, management, 
funds or property”  is sufficient to make racial dis­
crimination in such circumstances violative of the 
Fourteenth Amendment, it has been clear that the 
mere outward trappings of private activity are not 
sufficient to insulate an activity from the commands 
of the Fifth and Fourteenth Amendments. Racially 
discriminatory acts of individuals are so insulated 
only insofar as they are “ unsupported by State 
authority in the shape of laws, customs, or judicial 
or executive proceedings*” or are “ not sanctioned in 
some way by the State.”  \Qivil Rights Cases, supra 
at 17. Where racial discrimination is accompanied 
by some form of governmental support, the appli­
cability of the F ifth8 and Fourteenth Amendment is 
clear.9 \.

Only recently, the Supreme Court had, before it the 
problem of determining whether a State had become 
so involved in private conduct as to make the action of 
private individuals subject to the Fourteenth Amend­
ment. In holding that a private restaurant operating 
in a public building under a lease from a public au­
thority could not engage in racial discrimination, the

8 Cf. Bolling v. Sharpe, 347 IJ.S. 497 (1954).
9 The interrelationship between governmental and private 

activity was aptly described by Chief Justice Vinson in Ameri­
can Communications Ass'n v. Douds, 339 IJ.S. 382, 401 (1950) 
where he wrote: “ * * * when authority derives in part from 
Government’s thumb on the scales, the exercise o f that power 
by private persons becomes closely akin, in some respects, to 
its exercise by Government itself.”



17

Court noted (Burton v. Wilmington Parking Au­
thority, 365 U.S. 715, 722, 725 (1 9 6 1 )):10

Only by sifting facts and weighing circum­
stances can the nonobvious involvement of the 
State in private conduct be attributed its true 
significance.

* * * *
But no State may effectively abdicate its re­

sponsibilities by either ignoring them or by 
merely failing to discharge them whatever the 
motive may be. It is of no consolation to an in­
dividual denied the equal protection of the laws 
that it was done in good faith . . . By its in­
action, the Authority, and through it the State, 
has not only made itself a party to the refusal 
of service, but has elected to place its power,

10 Even before Burton there was a large body of case law 
which proscribed discrimination by a lessee of public property 
or facilities. See Muir v. Louisville Park Theatrical Associa­
tion, 347 U.S. 971 (1954), vacating ancl remanding, 202 F. 2d 
275 (C.A. 6, 1953) (leased open air theater); Aaron v. Cooper, 
261 F. 2d 97 (C.A. 8, 1958) (leased school); City of Greens- 
boro v. iSimpkin-s, 246 F. 2d 425 (C.A. 4, 1957), affirming, 149 
F. Supp. 562 (M.D.N.C. 1957) (leased cafeteria); Coke v. 
City of Atlanta, 184 F. Supp. 579 (N.D. Ga. 1960) (leased air­
port restaurant), Jones v. Marva Theatres, 180 F. Supp. 49 (D. 
Md. 1960) (leased motion picture theatre); Tate v. Department 
of Conservation, 133 F. Supp. 53 (E.D. Va. 1955), affirmed, 231 
F. 2d 615 (C.A. 4, 1956), cert, denied, 352 U.S. 838 (1956) 
(leased beach) ; Nash v. A ir Terminal /Services, 85 F. Supp. 
545 (E.D. Va. 1949) (leased airport restaurant) ; Lawrence v. 
Hancock, 76 F. Supp. 1004 (S.D. W . Va. 1948) (leased swim­
ming pool). Although these decisions are rested on various 
grounds—in some, that the lease was a technique of evading 
state responsibility; in others, that the property, though pri­
vately operated, was being used for a public purpose—they 
have been uniform in reaching the conclusion that the discrim­
ination effectuated by the private lessee was constitutionally 
forbidden.



18

property and prestige, behind the admitted dis­
crimination. [Emphasis added.] 11

Relying primarily upon the Burton decision, plain­
tiffs argument that the totality of governmental involve­
ment, in the activities of the defendant hospitals is 
such as to make applicable the prohibitions of the 
Fifth and Fourteenth Amendments.12 While we sup­
port this argument, we will not develop it in this 
brief. Rather, wo will demonstrate here that it is 
because of the relationship of the defendant hospitals 
to the Hill-Burton system that their admission policies 
must be deemed “ state action.” Our position is based 
on the fact that the Hill-Burton system contemplates 
a State obligation to plan for facilities to provide 
adequate hospital service to all the people of the

11 The concurring and dissenting opinions provided even 
broader tests of governmental responsibility. Justice Stewart, 
concurring, stated that legislative enactments “ authorizing dis­
criminatory classification based exclusively on color * * * is 
clearly violative o f the Fourteenth Amendment.”  [Emphasis 
added.] (365 U.S. at 726-27.) Justice Frankfurter, dissenting, 
commented: “For a State to place its authority behind discrimi­
natory treatment based solely on color is indubitably a denial by 
a State of the equal protection o f the laws, in violation o f the 
Fourteenth Amendment” (365 U.S. at 727). Dissenting Jus­
tices Harlan and Whittaker also indicated that they “ would 
certainly agree” with Mr. Justice Stewart’s formulation (365 
U.S. at 729).

12 In support of this argument, plaintiffs rely on the follow­
ing aspects o f governmental involvement: (a) financial support; 
(b) licensing; (c) tax exemption; (d) the composition of the 
Board of Trustees of the Cone Hospital; (e) the participation 
o f the Cone Hospital in a program of nurses’ training in coop­
eration with tax-supported state institutions of higher learning 
and (f)  the role of defendant hospitals, under the Hill-Burton 
Act, as integral components o f a federal-state system o f hospital 
care.



19

State. To the extent that this obligation is carried 
out by otherwise private institutions, these recipients 
of the federal grants are acting for the State and 
are therefore subject, in this respect, to the obliga­
tions imposed upon State agents and instrumentalities 
by the Fourteenth Amendment.

At the outset, however, it is important to stress 
what we are not contending. We do not argue that 
purely private activities are governed by the standard 
established by the Fifth and Fourteenth Amendments. 
The Civil Bights Cases, supra, have established that 
an otherwise private institution is not subject to the 
nondiscrimination provisions of the Constitution 
merely because, unlike a home for example, it is gen­
erally open to the public. We do not attack that rule. 
Nor do we urge that the receipt of government finan­
cial aid is sufficient, without more, to deprive an 
otherwise private institution of its non-governmental 
character. Under circumstances different from those 
present in this case, many colleges, universities, re­
search institutions, and hospitals enjoy such financial 
aid without becoming subject to the constitutional 
obligations resting on the federal and State govern­
ments. As we shall demonstrate, however, this case 
involves something more, in the way of governmental 
involvement, than the grant of financial aid. While 
the line between governmental and private action is 
necessarily delicate, we submit that, on balance, the 
governmental involvement under the Hill-Burton Act 
is sueh that the participating hospitals cannot be re-



20

gardecl as exempt from the equal protection require­
ment of the Constitution.
B. The hospitals are acting for the State and are subject to constitutional

limitations

1. The Hill-Burton Act requires that each partici­
pating State set up a comprehensive plan of hospital 
care for the benefit of all of the people of the State. 
It was Congress’ intention that the participating 
States plan for facilities to provide adequate 
hospital service to “ all the people” of the State 
(sections 291(a) and 291e(f)), and each partici­
pating State is required to make an undertaking 
to that effect. Any State which has assumed this, ob­
ligation is therefore responsible, under the scheme of 
the Hill-Burton Act, to design a plan assuring that 
“ all the people” of that State are provided adequate 
hospital services. The means used. for carrying out 
this obligation may vary; the State may employ the 
services of governmental hospitals or non-profit hospi­
tals. But, to repeat, the obligation is the State’s, .and 
if, for example, the number of beds in non-profit hos­
pitals appear to lie inadequate to meet the needs, the 
State would undoubtedly have to plan for beds in 
governmental institutions to have a program meeting 
the requirements of the law. Accordingly, when, the 
State draws a non-State institution into the State plan, 
the latter performs one of the State’s acknowledged 
functions. It follows that such a non-governmental 
institution becomes pro tanto a State instrumentality 
with concomitant obligations, . . v. . .



21

2. Congress enacted the Hill-Burton Act to meet 
vital national needs. As the report of the Senate Com­
mittee on Education and Labor on the Act noted: 13

Your committee has given careful considera­
tion to the national need for hospital facilities 
as shown by the testimony of a large number of 
well-informed witnesses from many walks of 
life. It has been pointed out that our national 
health rests upon four main pillars—medical 
research, preventive medicine, medical care, and 
hospitalization. This bill is designed to 
strengthen all four through the provision of 
more adequate hospital facilities. Lack of 
hospital facilities—properly placed and ade­
quately equipped—represents one of the weak­
est spots in our national health structure.

42 U.S.C. 291(a) declares that the basic and over­
riding purpose of the Act is to assist the several States 
in the development of programs for hospital construc­
tion that will afford the necessary facilities “ for 
furnishing adequate hospital, clinic and similar serv­
ices to all their people.” 14 Accordingly, Section 
291e(f) similarly provides that the Surgeon General 
shall adopt regulations making it mandatory that the 
State plan of hospital construction provide “ for

13 Senate Report No. 674, 79th Congress, 1st Sess., p. 2-3.
14 This broad declaration of Congressional policy (42 U.S.C. 

291(a) ) is carried forward into the survey and planning pro­
visions (42 U.S.C. 291b(a) (3), o f which North Carolina took 
advantage, and thence into the State plan for construction (42 
U.S.C. 291f (a) (4) (C ».

677083— 63- -4



22

adequate hospital facilities for the people residing in 
a State * * *” 15

Senator Hill, in describing the purpose of his bill, 
quite correctly described the ultimate result when he 
said that it was intended to assist the States in pre­
paring “ a State-wide program for new construction so 
that all people of the State may have adequate health 
and hospital services.” 16

This emphasis on the creation of a State-wide 
system of hospitals for the provision of hospital serv­
ice to all of the people of the State indicates that the 
Hill-Burton program was not limited to the granting 
of financial aid to individual hospitals. It shows, 
rather, a congressional design to induce the States, 
upon joining the program, to undertake the super­
vision of the construction and maintenance of ade­
quate hospital facilities throughout their territory. 
Upon joining- the program a participating State in 
effect assumes, as a State function, the obligation of

15 Section 291e(f) also stipulates that State plans shall make
provision for hospital admissions without discrimination on 
account of race, color, or creed. We discuss the full significance 
o f this provision in a subsequent part, o f this brief. Suffice it 
to say here that the requirement o f  non-discrimination is an 
indication that Congress felt that what was involved was' a 
governmental responsibility, or it would not have imposed upon 
the States (and authorized the Surgeon General to impose, 
through them, on all participating hospitals) a constitutional 
non-discrimination obligation binding only upon governmental 
entities. ’ h h - , q' o :

16 Hearings , before Senate; . Committee . on Education and 
Labor on S. 191, 79th Cong., 1st Sess., p. 8 .,



23

planning for adequate hospital care. And it is, of 
course, clear that when a State function or responsi­
bility is being exercised, it matters not for Fourteenth 
Amendment purposes that the agent or instrumental­
ity would otherwise be private: the equal protection 
guarantee applies. Marsh v. Alabama, 326 TT.S. 501 
(1946) ; Nixon v. Condon, 286 U.S. 73 (1932) ; Smith v. 
Allwright, 321 U.S. 649 (1944) ; Terry v. Adams, 345 
U.S. 461 (1953).

Boynton v. Virginia, 364 U.S. 454 (1960), even 
though not reaching any constitutional issue, is' an 
analogy on this point. There the bus carrier had vol­
unteered to make terminal and restaurant facilities 
available to its passengers. Here the State has volun­
teered to set up a hospital system that makes hospital 
services available to all its people. There the terminal 
and restaurant had cooperated in the undertaking. 
Here the defendant hospitals have cooperated in the 
hospital system. The Court held that under these cir­
cumstances the terminal and restaurant were bound 
by the same federal obligations as was the bus carrier 
and said (364 U.S. at 460-461) : “ * * * if the bus car­
rier has volunteered to make terminal and restaurant 
facilities available to its interstate passengers as a 
regular part of their transportation, and the terminal 
and restaurant have acquiesced and cooperated in this 
undertaking, the terminal and restaurant must per­
form these services without discrimination prohibited 
by the Act. In the performance of these services 
under such conditions the terminal and restaurant



24

stand in the place of the bus company in the perform­
ance of its transportation obligations.” So here, the 
defendant hospitals stand in the place of the State in 
the performance of its Constitutional obligations.

3. There are other indications in the statute that 
hospitals which participate in the Hill-Burton pro­
gram have asserted to perform a governmental func­
tion. The very comprehensiveness of the program 
points in this direction. So does the fact that Con­
gress has placed the federal-state program of hospital 
care under the detailed supervision and administra­
tion of governmental bodies. Senator Hill, in ex­
plaining how the program would operate, made clear 
the total involvement of government. He said (91 
Cong. Rec. 11716) :

The provision in the bill requiring each state 
to formulate and have approved by the surgeon 
general a State plan based upon a State-wide 
inventory of existing hospitals and a survey of 
needs, and the requirement that each applica­
tion for funds must be in conformity with the 
State plan and be approved by the State agency 
administering it, will greatly stimulate and 
help to bring about an integrated system of 
health and hospital facilities within each state. 
The over-all standards and general regulations 
issued by the Surgeon General of the Public 
Health Service, together with his expert advice 
and help, will bring about a more uniform and 
integrated national system of hospital and 
health facilities.



25

In other words, the Hill-Burton program was de­
signed to encourage the creation of a state-wide sys­
tem of hospital service. The adoption of a plan for 
such a system was required by Congress as a condition 
to receiving aid. And the Surgeon-General is given 
extensive supervisory control over the plan and its 
operation.

Under the Act, the Surgeon General is granted 
rule-making power over the methods of administra­
tion of the plan and the standards of construction and 
equipment for hospitals. He also regulates the 
manner in which the State agency administering the 
plan determines the priority of projects to receive 
federal funds and sets standards for determining the 
number of hospital beds necessary to provide ade­
quate hospital services to people residing in the State. 
Pursuant to this authority, the Surgeon General has 
promulgated regulations which must be adhered to by 
the State agency administering the plan and by all 
applicants for aid. These regulations—42 C JAR. 
53—are extremely detailed and cover such matters as 
the distribution of diagnostic and treatment centers 
and equipment.17

17 The regulations prescribe a multitude o f requirements that 
an applicant must meet to be approved by the State agency for 
participation in the State plan. For example, in approving 
any application the State agency is required by regulation (42 
C.F.R. 53.127(d)) to certify that the application contains 
reasonable assurances as to title, payment o f prevailing rates 
of wages, and financial support for the construction arid opera­
tion o f ; the project; that the plans and specifications for con­
struction - o f  the project1 are in accord with the minimum 
construction standards in the Federal regulations; that the 
application contains-an assurance that the applicant will con­



26

The recent Public Works Acceleration Act of 1962, 
76 Stat. 542, 42 C.S.C. 2641-2643-—provides an indi­
cation of the status of Hill-Burton hospitals. The 
purpose of the 1962 Act is to accelerate public work 
projects in order to combat unemployment. In sec­
tion 2641 of the Act, Congress declared that “ The 
Nation has a backlog of needed public projects, and 
an acceleration of these projects now will not only 
increase employment at a time when jobs are urgently 
required but will also meet long-standing public needs, 
improve community services, and enhance the health 
and welfare of citizens of the Nation.”  To carry 
out this purpose, the President is “ authorized to initi­
ate and accelerate in eligible areas those Federal 
public works projects which have been authorized by 
Congress, and those public works projects of States 
and local governments for which Federal financial 
assistance is authorized under provisions of law other 
than this chapter. * * *” (42 U.S.C. 2642(b).) 
Significantly, Congress considered that assistance to 
nonprofit hospitals would be an appropriate public 
works project. Thus, H.R. No. 1756, 87th Cong. 2d 
Sess., p. 17, states: “ Hospitals represent another 
area of pressing public need on which activity could 
be begun promptly. The assistance in this bill, which
form to the requirements of sections 53.111, 53.112, and 53.113 
o f the regulations regarding the provision of facilities for 
persons unable to pay therefor; that the application contains 
an assurance that the applicant will conform to State standards 
for operation and maintenance and to all applicable State laws 
and State and local regulations; that the application is en­
titled to priority over other projects within the State; and that 
the State agency has approved the application.



27

could be used for both public and private nonprofit 
hospitals, would be particularly helpful in meeting 
the urgent need for modernization of older hospitals.”  
See also Cong. Rec., August 28, 1962, p. 16856.

4. In appraising the effect of the Hill-Burton Act, 
it is important to remember the context of the statute. 
A  very substantial proportion of the country’s hospi­
tals are unquestionably public, albeit non-governmen­
tal, institutions.18

As the memorandum of the General Counsel of the 
Department of Health, Education, and Welfare 
(175a) reveals, non-profit hospitals have a decidedly 
public character. Indeed, governmental hospitals 
“ differ little from private non-profit hospitals except 
in the manner of selection of the governing boards, 
and sometimes in having a cal] upon tax funds to meet 
deficits”  (176a). Both governmental and non-profit 
hospitals serve as general community hospitals. Such 
“ community hospitals have become essential, both to 
provide hospital service to the people of the commu­
nity and to enable its physicians to practice good 
medicine”  (179a). In addition, all hospitals have very 
substantial governmental contacts. The record in this 
case demonstrates the detailed licensing and regula­
tion to which hospitals are subjected. Moreover, hos­
pitals have long been dependent upon public support 
in the form of tax exemptions as well as substantial 
grants.

These circumstances seem significant in determining

18 In 1960, there were 524 accredited governmental hospitals, 
2,276 accredited private non-profit hospitals and 154 proprie­
tary (profit-making) accredited hospitals (175a).



28

whether it is likely that through the Hill-Burton Act,
Congress has in fact established a program which uses 
the participating non-profit hospitals as government 
instrumentalities for the limited purpose of meeting 
the community’s need for hospital services. The pro­
portion of hospitals which were State, county or mu­
nicipal institutions, the degree of public interest, the 
dependence upon tax exemptions, the existing systems 
of licensing and regulations, all show that the pro­
gram as we conceive it involves no drastic change in 
institutions except in race relations where the change 
is impelled by the Constitution. Cf. Garner v. Loui­
siana, 368 U.S. 157, 183 (1961) (Mr. Justice Douglas 
concurring).

5. To be sure, there are provisions in the Act which 
show that Congress did not intend under the Hill- 
Burton program to require state control of partici­
pating non-profit hospitals in all their functions. 
Thus, a number of provisions of the Act use the words 
“non-profit”  in contra-distinction to the adjective 
“public”  in describing the types of hospitals to be as­
sisted.19 We do not believe, however, that the use of 
such terms—which merely describe the nature of the 
ownership of the recipients of federal assistance- 
overrides the legal import of a federal-state program 
specificially designed to furnish hospital services to 
all the people. For example, under our view of this 
case, the Cone Hospital will continue to be a non-profit 
hospital in the sense that its present Board of Trus­
tees, and not the State, will be responsible for its 
management. Only with respect to the admission to

19See, e.g., 42 U.S.C. 291(a), 291d, 291h(a), 291n.



29

hospital services will the hospital be considered a 
governmental instrumentality required to adhere to 
the commands of the Fourteenth Amendment.

Other provisions of the Act, and portions of the 
legislative history, do suggest that the statute was in­
tended to establish simply a program of grants-in- 
aid.20 I f these stood alone, a different question would

20 See, e.g., the following:
(a) 42 U.S.C. 291m (60 Stat. 1049), entitled “ State control of 

operations” which provides: “ Except as otherwise specifically 
provided, nothing in this subchapter shall be construed as con­
ferring on any Federal officer or employee the right to exercise 
any supervision or control over the administration, personnel, 
maintenance, or operation o f any hospital, diagnostic or treat­
ment center, rehabilitation facility, or nursing home with respect 
to which any funds have been or may be expended under this 
subchapter” (emphasis added). [While the title “ State con­
trol of operations”  is used in the Statutes at Large, the United 
States Code uses the phrase “ State control of agencies.” ]

(b) The House Committee Report (H. Rep. No. 2519, 79t,h 
Cong., p. 8) states that regulations under 42 U.S.C. 291e(f) 
will “ relate solely to administration o f the plan submitted by 
the State agency and do not in any way relate to the admin­
istration of hospitals.”

(c) Senator Hill stated: “ The bill does not provide a Federal 
program of hospital construction. It does provide a program 
of Federal aid to the states and their localities for hospital 
construction.” 91 Cong. Rec. 11714.

(d) Senate Report No. 674, 79th Cong. 1st Sess. p. 7, states:
“ The bill is not a Federal hospital construction bill. The

need for a country-wide program of hospital construction has 
been demonstrated. It remained for the committee to consider 
and determine the relationship that should exist between the 
Federal Government and the States in planning and carrying 
out such a program. The committee believes that a Federal-aid 
program of the character set forth in the reported bill, which 
will supplement State and local funds for planning and carry­
ing out a construction program, but will at the same time 
encourage the States to assume the responsibility for carrying



30

be presented. We believe, however, that these pro­
visions should be read as expressing Congress’ intent 
not to put the federal government into the business of 
directly administering hospitals. The Hill-Burton 
program was meant to provide a federal stage on 
which the states and the hospitals designated to par­
ticipate in the State system would be the principal 
actors. Congress was intent on establishing an elabo­
rate framework to make possible the rendition of 
hospital services to all the people but it was not Con­
gress’ intent to impose on the federal government the 
obligation of constructing on that framework. That 
this is so is clearly illustrated by 42 U.S.C. 291m (60 
Stat. 1049) which, although it disavows federal super­
vision or control over assisted hospitals, makes clear 
in its title—“ State control of operations”■—that there 
shall be control, but by the States.21

Finally, the argument that the Hill-Burton Act 
establishes only a program of construction grants is 
inconsistent with the clear language of 42 IT.S.C. 
291e(f). That argument necessarily treats 291e(f) 
as doing no more than assuring an equitable distribu­
tion of the money so that proportionate shares will
out the program to the greatest possible extent consistent with 
a proper check upon expenditure of Federal appropriations, 
will be most effective in a long-range hospital-construction 
program.”

21 It is significant that the disavowal o f federal administrative 
control applies equally to the “private” non-profit hospitals and 
to those admittedly “ public.” Moreover, Section 291m is intro­
duced by the phrase “ Except as otherwise specifically pro­
vided * * *” As we have indicated, 42 U.S.C. 291(a) and 
291e(f) demonstrate a Congressional intention to make it a 
matter o f federal concern as to whom hospital services are 
provided.



31

reach the institutions serving whites, Negroes and 
other segregated groups, and that Congress was not 
concerned with the actual provision of hospital serv­
ices to the needy or with discrimination in the rendi­
tion of services. But this argument is invalid. Sec­
tion 291e(f) shows on its face that Congress was 
concerned not merely with the distribution of the 
money but with what is done with the new hospital 
facilities in the continuing rendition of hospital serv­
ices. Far from being content to leave this to private 
decision, Congress imposed upon the States, and au­
thorized the Surgeon General to require them to 
impose on the hospitals, the twin obligations of 
aiding the needy and avoiding unconstitutional 
discrimination.

Section 291e(f), therefore, cannot be explained 
away as only an effort to see that money is equi­
tably distributed, with the governmental responsibility 
stopping at that point. We think that, in conjunction 
with the other considerations noted, it is sufficient evi­
dence that Congress did regard the availability of hos­
pital services as a State responsibility to be met 
either through hospitals run by governmental agen­
cies or by non-profit organizations on behalf of the 
State, although managed by private citizens.

But even if the opposing evidence be thought 
stronger with respect to the overall character of the 
non-profit hospitals, we submit that Congress unques­
tionably undertook to deal, and to require the States 
to deal through the hospitals, with the problem o f dis­
crimination on grounds of race, creed or color. Hav­



32

ing taken this step neither ' government could, 
consistently with the Fourteenth Amendment, do less 
than the Amendment requires; and, at least in that 
respect, the hospitals must he acting as the instru­
ments of the State and bound by the same limitation.

C. The non-discrimination provision of the Hill-Burton Act

1. We have argued above that hospitals voluntarily 
participating in the Hill-Burton system are govern­
mental instrumentalities for the purpose of providing- 
hospital care to all the people. This argument is based 
on our analysis of the Hill-Burton Act, particularly 
sections 291(a) and 291e(f), and its legislative history 
which, we believe, demonstrates that Congress in­
tended through the Act to promote hospital services 
for all the people.

As an alternative to the above argument, we now 
contend that the hospitals, even if otherwise private, 
are acting for the government in using the grants to 
provide hospital facilities without unconstitutional 
discrimination. It is clear that under the Hill-Burton 
program, the admission policies of participating hos­
pitals are made a matter of federal and State concern. 
This is not a subject on which the federal statute is 
silent ; it is not a subject over which the State agencies 
have no responsibility. Rather, under the statute, the 
Surgeon Greneral is required to participate in and 
direct the implementation of the congressional policy 
that Hill-Burton hospital be for the use of all the peo­
ple on an “ equitable”  basis. By imposing this



33

duty on State agencies and the Surgeon General, 
Congress has made the public availability of Hill- 
Burton facilities a subject of governmental concern 
and control. Here, then, the statute providing for a 
hospital program and financial assistance directly 
and positively concerns itself with the admission 
policies of those to receive the assistance. Whether 
in the absence of this governmental supervision and 
control racially restrictive admission policies of Hill- 
Burton hospitals would otherwise be purely “  private 
action7’ and subject to no constitutional strictures need 
not be considered. Congress has removed the racial 
admission policies of Hill-Burton hospitals from the 
realm of private action. Congress has regulated and 
has authorized the Surgeon General to regulate those 
policies in the national interest. It has further pro­
vided that the several States regulate those policies 
and give binding assurances as to the nature of those 
policies. And the final performance of the continuing 
obligation, which the government accepted and im­
posed upon the States, falls on the hospital in render­
ing services. At least to this extent, the Act 
contemplates that the hospitals are to act as, and for, 
the State. What a hospital does with respect to race, 
creed or color must therefore conform to the Four­
teenth Amendment.

The essential point is that, even in the case of 
otherwise private hospitals, Congress was unwilling 
to leave the avoidance of unconstitutional dis­
crimination to free private decision. Congress per­
ceived, and forced the States (and also the hos­



34

pitals choosing to participate in the program) to 
accept a governmental obligation. In effect, it im­
pressed a trust for these two purposes upon the money 
and any facilities into which the funds are converted. 
Anyone taking the money would take it, as it were, 
subject to the trust, and in performing the trust the 
taker would be acting for the government and subject, 
in this respect, to its constitutional obligations.22 Con­
sequently, it may fairly be said that the admission 
policies of Hill-Burton hospitals are sanctioned by 
force of law; for these policies are formulated and 
carried out with government assistance and pursuant 
to statutory authorization and governmental direction.

a. Legal precedent supports our position. It is now 
clear that State laws requiring racial discrimination 
by private businesses or individuals are unconstitu­
tional. Hot only are the laws themselves unconstitu­
tional, but the conduct which the law compels of the. 
private individuals is itself unconstitutional even 
though, absent the law, it would be permissible as 
“ private action” . As indicated, supra, as early as the 
Civil Rights Cases, 109 TT.S. 3, 17 (1883) the Supreme 
Court made clear that discriminatory acts of private

22 Our view that federal funds contributed under the Hill- 
Burton program are impressed with a trust is supported by 
42 U.S.C. 291h(e) which provides that i f  a hospital is sold 
or transferred to a person or agency not qualified to file an 
application under the Act or ceases to be a “non-profit hos­
pital” , the United States may recover a proportionate share 
of the then value as its contribution was to the cost o f the 
project. This provision suggests that the Federal Government 
has a continuing interest in the recipients of its aid.



35

persons are insulated from the Fourteenth Amend­
ment only insofar as they are “ unsupported by State 
authority in the shape of laws, customs, or judicial or 
executive proceedings,” or are “ not sanctioned in some 
way by the State. ’ ’ More recently, courts have found 
that where private persons segregate pursuant to posi­
tive provisions of the law, the actions of the private 
persons are within the ambit of the Fourteenth Amend­
ment. In Boman v. Birmingham Transit Company, 
280 F. 2d 531 (C.A. 5, 1960) a city ordinance per­
mitted passenger carriers to make rules for the seating 
of passengers. The Court of Appeals held that the 
action of the bus company in promulgating and en­
forcing the rules was “ state action”  and said (280 F. 
2d at 535) :

Of course, the simple company rule that Ne­
gro passengers must sit in back and white pas­
sengers must sit in front, while an unnecessary 
affront to a large group of its patrons, would 
not effect a denial of constitutional rights if not 
enforced by force or by threat of arrest and 
criminal action. Where, as here, the City dele­
gated to its franchise holder the power to make 
rules for seating of passengers and made the 
violation of such rules criminal, no matter how 
peaceful, quiet or rightful (as the court here 
held), such violation was, we conclude that the 
Bus Company to that extent became an agent of 
the State and its actions in promulgating and 
enforcing the rule constituted a denial of the 
plaintiffs’ constitutional rights.

See also Baldwin v. Morgan, 287 F. 2d 750, 755-56 
(C.A. 5, 1961) ; Flemming v. South Carolina Electric



36

and Gas Company, 224 F. 2d 752 (C.A. 4, 1955), ap­
peal dismissed, 351 U.S. 901.

A  similar conclusion was reached by Judges 
Bazelon and Edgerton in Williams v. Hot Shoppes, 
Inc., 293 F. 2d 835 (C.A.D.C. 1961).23 They said 
(293 F. 2d at 846) :

When otherwise private persons or institu­
tions are required by law to enforce the 
declared policy of the state against others, their 
enforcement of that policy is state action no 
less than would be enforcement of that policy 
by a uniformed officer. Baldwin v. Morgan, 
5 Cir., 1958, 251 F. 2d 780 ■ Flemming v. South 
Carolina Electric & Gas Co., 4 Cir., 1955, 224 
F. 2d 752, appeal dismissed, 1956, 351 U.S. 901, 
76 S. Ct. 692, 100 L Ed. 1439. “ The pith of 
the matter is simply this, that when [private 
groups] * * * are invested with an authority 
independent of the will of the association in 
whose name they undertake to speak, they 
become to that extent the organs of the state 
itself, the repositories of official power.” Mxon 
v. Condon, supra at page 88.

b. It is true that the above cases deal with laws 
which required racial discrimination or which enforced 
private discrimination by criminal sanctions. It is 
equally true, however, that statutes authorizing or 
permitting racial segregation run just as afoul of 
the equal protection clause as statutes compelling 
segregation.

23 Although. Judges Bazelon and Edgerton were dissenting, 
they were the only members o f the couil; to consider the ques­
tion. The majority of the court, relying on the equitable 
abstention doctrine, did not reach the merits.



37

Almost fifty years ago, the Supreme Court consid­
ered this question in McCabe v. Atchison, Topeka and 
Santa Fe By. Co., 235 U.S. 151 (1911). There the 
State of Oklahoma had enacted a. statute requiring 
railroads to provide separate-but-equal facilities for 
their intrastate passengers. Had the legislature 
stopped at that point its effort would, of course, 
have been within the Constitution under the then pre­
vailing doctrine of Plessy v. Ferguson, 163 U.S. 537 
(1896). The State legislature, however, went further 
and, having imposed the equality of treatment for­
mula which was then recognized by the courts as valid, 
went on to provide that the railroads need not follow 
that formula with respect to sleeping, dining and chair 
cars—so-called luxury facilities. Several Negroes 
sued to enjoin enforcement of that statute. The Dis­
trict Court determined that the statutory proviso with 
respect to the luxury facilities did not offend the 
equal protection clause. The Court of Appeals 
affirmed. The Supreme Court, in an opinion written 
by Justice Hughes, overruled the lower courts on this 
point. While the Court did not dispute the principle 
that the State could, by remaining silent, have left the 
railroads to discriminate on the basis of race, it held 
that if the passenger “ is denied by a common carrier, 
acting in the matter under the authority of a state 
law, a facility or conveyance in the course of his jour­
ney which under substantially the same circum­
stances is furnished to another traveler, he may prop­
erly complain that his constitutional privilege has



38

been invaded” (235 U.S. at 162). [Emphasis 
added.] 24

Here, as in McCabe, government has inserted itself 
into an activity that might otherwise be regarded as 
“ private”  in order to set a standard of non-discrimi­
nation for the benefit of the entire public. Congress 
has chosen to inject the force of federal law into the 
area of hospital admissions. It need not have done 
that. It could have provided that funds be granted 
free of conditions relating to admission. But Con­
gress has chosen to concern itself with the admission 
practices of participants in the Hill-Burton program 
and expressly has authorized and sanctioned discrimi­
nation. Here also, as in McCabe, the legislative au­
thority has been exercised to allow discrimination of 
the type which the courts have ruled cannot be in­
dulged in by the governmental authority itself. This 
authorization is unconstitutional and the admission 
policies of defendant hospitals, as an exjjress subject 
of Congressional regulation, are required to conform 
to the commands of the Fifth and Fourteenth 
Amendments.

2. It may be objected, however, that the only obli­
gation Congress perceived is to see that proportion­
ately equal, although separate, hospital facilities are 
available to whites and Negroes and other groups.

One answer is that Congress obviously believed 
that the major obligation, declared by the first sen­

24 The principle of McCabe recently was endorsed by the 
Supreme Court in Burton v. Wilmington Parking Authority 
365 U.S. 715 (1961). There the court. again made clear that 
racial discrimination under the authority o f State law was pro­
scribed by the Fourteenth Amendment.



39

tence of 42 IT.S.C. 291e(f), was to avoid discrimina­
tion and comply with constitutional standards in the 
provision of hospital services. It believed that sepa­
rate but equal facilities would meet the obligation and 
it was therefore willing to accept such facilities as an 
exception to the general rule. This assumption was 
a mistake. Even though the government might have 
left the selection of patients entirely to the hospitals, 
it could not constitutionally put an imprimatur of 
government approval upon segregation. Taking the 
statute as it was enacted, without speculating about 
political probabilities, it seems fair to say that the 
avoidance of unconstitutional discrimination was the 
dominant aim of 42 IT.S.C. 291e(f) and that since a 
choice must be made between invalidating the whole 
or excising the unconstitutional portion, the subor­
dinate exception must be excised, leaving the domi­
nant undertaking intact.

A  second answer is that once Congress undertook to 
eliminate discrimination in the availability of hospital 
facilities, it could use no standard other than that 
found in the Fifth and Fourteenth Amendments. 
Congress could not license part performance of a 
constitutional duty.

In short, it can be conceded that a government— 
whether State or federal—can give away money or 
grant property and leave the recipient free to dis­
criminate or not discriminate, on the basis of race, in 
the use of the property. Where, however, the gov­
ernment exercises control to assure that the money or 
property is used for the benefit of all the people, the 
standards set by the government, and the conduct of



40

recipients of aid acting under those standards, must 
conform to the Constitution.

II. The provision o f the Hill-Burton Act sanctioning the 
construction o f separate-but-equal hospital facilities is 
unconstitutional

1. The United States fully recognizes that it is ex­
ceptional for the federal government to participate in 
a suit to urge that an act of Congress be declared un­
constitutional. Not only do we acknowledge our gen­
eral obligation to defend Congressional enactments, 
but we also are keenly aware of the self-imposed judi­
cial inhibition against passing on the validity of an 
Act of Congress “ unless absolutely necessary to a 
decision of the case.”  Burton v. United States, 196 
U.S. 283, 295 (1905)20. However, as we have demon­
strated, we believe that the conduct of the defendant 
hospitals is subject to constitutional limitations prin­
cipally because of their participation in the Hill- 
Burton hospital system in North Carolina. This 
conclusion, in our view, is dispositive of the constitu­
tionality of the separate-but-equal provisions of the 
Hill-Burton Act.

The inescapable fact is that the discrimination 
challenged in this action stems directly from federal 
invitation—accepted by the State in its plan and by 
defendant hospitals in their construction projects. 
Defendants’ discriminatory acts are an integral part of 
an interrelated federal-state-private program in which 
each of the three entities has played an indispensable 25

25 See also Ashtvander v. Tennessee Valley Authority, 297 
U.S. 288, 345 et seq. (1936); United States v. Auto Workers, 
352 U.S. 567, 589-593 (1957).



41

part, and in which none of the three can he exonerated 
from responsibility for the resulting discrimination. 
It was the underlying federal statute which unques­
tionably led to the North Carolina program of hos­
pital construction and which instigated the discrim­
inations which this action seeks to enjoin. As in 
Burton v. Wilmington Parking Authority, supra, 
here the State and federal governments have 
so far insinuated themselves into a position of 
interdependence with defendant hospitals that they 
must be recognized as joint participants in the chal­
lenged activities. Therefore, if this Court concludes 
that the discrimination complained of in this ease is 
constitutionally impermissible it necessarily will be 
required to consider the validity of the statute that 
has permitted these two governments to sanction and 
to participate in such discrimination. Indeed, if the 
defendants are ordered to cease their discriminatory 
practices, such an order would be in direct conflict 
with the terms of the Hill-Burton proviso. We be­
lieve, therefore, that defendants’ conduct cannot 
escape constitutional interdiction without the statute 
that has authorized that conduct also being invali­
dated.

2. In the Hill-Burton Act, Congress has authorized 
federal-state cooperation in a federally financed, 
State-administered program of hospital construction 
for the benefit of all the people (42 H.S.C. 291(a)). 
Although the Act specifically provides that State hos­
pital construction programs shall not discriminate “ on 
account of race, creed or color,”  Congress has further



42

prescribed that this non-discrimination standard may 
be met if the State program provides for the construc­
tion of separate-but-equal facilities.26 42 U.S.C. 291e 
( f ) .  Thus, the Hill-Burton Act is not merely neu­
tral or silent on the question of racial discrimination. 
Rather, Congress incorporated into the statute a 
standard based on race and has authorized and sanc­
tioned racial discrimination by State-connected in­
stitutions—racial discrimination that clearly violates 
the Fourteenth Amendment. Congress has no power, 
under the Fifth Amendment, to do this.

First, section 291e(f) of Title 42 is, on its face, 
violative of the Constitution. That section expressly 
permits the separate-but-equal treatment of Negroes. 
This is contrary to the now well established principle

26 It is clear that separate-but-equal treatment of racial 
groups does not meet the standards of the Equal Protection 
clause of the Fourteenth Amendment. As long ago as 
Strauder v. West Virginia, 100 U.S. 30-3, 308 (1880) the
Supreme Court recognized that Negroes are entitled to
“exemption from legal discriminations, implying inferiority in 
civil society * * *”  And, in Brown v. Board of Education, 
347 U.S. 483, 494 (1954), the Supreme Court approved the find­
ing o f the district court that “ the policy of separating the races 
is usually interpreted as denoting the inferiority of the negro 
group.”  Since Brown, the courts have been consistent in re­
jecting the separate-but-equal formula. See, e.g., Dawson v. 
Mayor and City Council of Baltimore, 220 F. 2d 386, 387
(C.A. 4, 1955), affirmed, 350 U.S. 877 (1955); Browder v.
Gayle, 142 F. Supp. 707 (M.D. Ala. 1956), affirmed, 352 U.S. 
903 (1956) ; Tate v. Department o f Conservation, 133 F. Supp. 
53 (E.D. Va., 1955), affirmed, 231 F. 2d 615 (C.A. 4, 1956), 
cert, denied, 352 U.S. 838 (1956) ; Henry v. Greensville A ir­
port Commission., 279 F. 2d 751 (C.A. 4, 1960).



43

that racial classifications with respect to public facil­
ities and services are “ irrelevant and invidious.” 27 
The Constitution prohibits “ state action in which 
color i.e., race) is the determinant * * * The fac­
tor of race is irrelevant from a constitutional view­
point.” Baldwin v. Morgan, 287 F. 2d 750, 754 (C.A. 
5, 1961). This principle was enunciated in the classic 
language of the first Mr. Justice Harlan, dissenting 
in Plessy v. Ferguson, 163 U.S. 537, 554, 559 (1896) : 

[T]he Constitution of the United States does 
not * * * permit any public authority to know 
the race of those entitled to be protected in 
the enjoyment of * * * [civil] rights. 

* * * - * #
Our Constitution is color-blind, and neither 

knows nor tolerates classes among its citi­
zens. * * * The law regards man as man, and 
takes no account of his surroundings or of his 
color when his civil rights as guaranteed by 
the supreme law of the land are in­
volved. * * *

Certainly, there is no conceivable justification for 
racial classifications by government with respect to 
hospital admissions. I f  it is beyond the power of gov­
ernment to make available schools or recreational fa­
cilities on the basis of race it is equally unpermissive 
to support a hospital system where the availability of 
service may depend upon a person’s race. The Con­

27 Steele v. Louisville <& Nashville Railroad Co., 323 U.S. 
192, 203 (1944). See also BoIlim,g v. Sharpe, 347 U.S. 497, 499 
(1954) where the Court said:

“ Classifications based solely upon race must be scrutinized 
with particular care, since they are contrary to our traditions 
and hence constitutionally suspect.”



44

stitution does not permit Congress to use race as a 
yardstick in determining the recipients of govern­
mental benefits. Where, as here, Congress has re­
quired the Surgeon General to insure that the Hill- 
Burton program enures to the benefit of all the people 
within a state without racial discrimination, Congress 
may not, at the same time, require that the Surgeon 
General approve the separate-but-equal treatment of 
racial groups.

Second, the Hill-Burton Act expressly sanctions 
racial discrimination by State-connected institutions. 
It is now beyond question that racial discrimination 
by a State runs afoul of the Constitution since, “ [f]or 
a State to place its authority behind discriminatory 
treatment based solely on color is indubitably a denial 
by a State of the equal protection of the laws, in vio­
lation of the Fourteenth Amendment.” 28 Neverthe­
less, despite this clear principle, under the Act, the 
States are expressly authorized to devise hospital con­
struction programs that provide separate facilities 
for the races.29 The State program must be ap­

28 Mr. Justice Frankfurter, dissenting on other grounds in 
Burton, v. Wilmington Parking Authority, 365 IJ.S. 715, 727 
(1961).

29 It is without significance that the Hill-Burton Act does not 
compel the States to devise separate-but-equal hospital construc­
tion programs. It is enough that racial discrimination is per­
mitted or sanctioned. See the discussion of McCabe v. A tchison, 
T. <fs S.F. By. Co. at pp. 36-37, supra. Nor is it significant that 
the State plan involved in this case does not compel individual 
hospitals to discriminate. The actions of the State o f North 
Carolina in this case are sufficient to meet the tests o f uncon­
stitutional state action as set forth in Cooper v. Aaron, 358 IJ.S. 
1, 19 (1958) where the Court said:

“ State support of segregated schools through any arrange-



45

proved by the Surgeon General and he must deter­
mine whether the State has properly applied the 
separate-but-equal formula. In effect, therefore, the 
federal government takes a very direct part in co­
operating with the States in the effectuation of a 
separate-but-equal hospital program. This is State- 
sponsored racial discrimination with a federal impri­
matur. For Congress expressly to authorize such a 
scheme necessarily violates the due process clause of 
the Fifth Amendment.30 And while Congress cer­
m e t, ma.7iagem.ent, funds, or property cannot be squared with 
the [Fourteenth] Amendment’s command that no State shall 
deny to any person within its jurisdiction the equal protection 
o f the laws. The right of a student not to be segregated on 
racial grounds in schools so maintained is indeed so funda­
mental and pervasive that it is embraced in the concept of due 
process o f law. Bolling v. Sharpe, 347 U.S. 497.” [Emphasis 
added.]

See also Oatlette v. United States, 132 F. 2d 902 (C.A. 4, 
1943); Picking v. Pemisylvcmia R. Go., 151 F. 2d 240 (C.A. 3, 
1945); Lynch v. United- States, 189 F. 2d 476 (C.A. 5, 1951).

30 In Bolling v. Sharpe, 347 U.S. 497 (1954) the Court indi­
cated that, with respect to racial discrimination, the reach of 
the due process clause of the Fifth Amendment was coexten­
sive with that of the equal protection clause of the Fourteenth 
Amendment. The Court said (347 U.S. at 500) :

“ In view of our decision that the Constitution prohibits the 
states from maintaining racially segregated public schools, it 
would be unthinkable that the same Constitution would impose 
a lesser duty on the Federal Government. We hold that racial 
segregation in the public schools of the District of Columbia 
is a denial o f the due process o f law guaranteed by the Fifth. 
Amendment to the Constitution.”

See also Steele v. Louis mile <fc Nashville R.R. Go., 323 U.S. 
192 (1944) where Justice Murphy, in a concurring opinion, 
stated (323 U.S. at 208) :

“ The Act [the Railway Labor Act] contains no language 
which directs the manner in which the bargaining representa­
tive shall perform his duties. But it cannot be assumed that



46

tainly has power to promote hospital construction, it 
cannot use that power “to attain an unconstitutional 
result.”  Western Union Telegraph Go. v. Foster, 
247 U.S. 105, 114 (1918). Cf. Gomillion v. Lightfoot, 
364 U.S. 339 (I960).31

In short, it is clear that Congress may not enact 
a statute authorizing a hospital construction program 
based on a separate-but-equal formula, and a State 
may not administer such a program. In view of this, 
the United States is compelled to concede the uncon­
stitutionality of the separate-but-equal provision of 
the Hill-Burton Act and the regulation enacted pur­
suant thereto. We believe the proper constitutional 
standard was enunciated in Hirabayashi v. United 
States, 320 U.S. 81, 100 (1943) where the Court said:

Distinctions between citizens solely because 
of their ancestry are by their very nature odious 
to a free people whose institutions are founded 
upon the doctrine of equality.

3. While the separate-but-equal provision of the 
Hill-Burton Act and the correlative portion of its 
implementing regulation must fall, we believe that the
Congress meant to authorize the representative to act so as to 
ignore rights guaranteed by the Constitution. Otherwise the 
Act would bear the stigma of unconstitutionality under the 
Fifth Amendment in this respects.”

Of. Hurd v. Hodge, 334 U.S. 24 (1948).
31 In Ming v. Horgan, 3 R.R. L. Rep. 693, 699 (Cal. Super. 

Ct. 1958) the court held that private persons who accepted 
federal mortgage guarantees were bound by the Fifth Amend­
ment. With regard to the absence of an explicit non-discrimi­
nation provision in the act of Congress in issue, the court said:

“ I f  it be objected that Congress refused to so ordain, it must 
be replied that Congress could not ordain otherwise—the law 
does not permit it to differentiate between races, and whether 
it expresses that limitation in so many words or not. * * *”



47

remainder of section 291e(f), providing for hospital 
facilities without discrimination, should properly re­
main in effect.32 As we have demonstrated supra, the 
basic and overriding purpose of the Hill-Burton Act 
was to permit the States to develop programs of hos­
pital construction that would provide adequate serv­
ices “ to all their people” . To assure full realization 
of this purpose, Congress expressly provided that the 
State plans of hospital construction must provide for 
adequate hospital facilities for the people residing in a 
State without discrimination on account of race, creed 
or color.

Congressional provision for separate-but-equal 
facilities was obviously simply an adherence to then 
prevailing constitutional doctrines. Congress’ domi­
nant purpose, clearly, was to prevent use of the 
national treasury to subsidize a State hospital system 
which practices racial discrimination in the admis­
sion of patients. The proviso could thus have vitality 
only so long as it might be sanctioned by the Consti­
tution. The Constitutional premise for the separate- 
but-equal proviso having fallen, the proviso falls, too. 
It is the broader provision dealing with racial dis­
crimination that gives effect to the primary purpose 
of the Congress—a purpose that should continue to be 
fulfilled.

32 We challenge only that portion of 42 U.S.C., § 291e(f) 
which reads:

* * * * but an exception shall be made in cases where 
separate hospital facilities are provided for separate popu­
lation groups, i f  the plan makes equitable provision on the 
basis of need for facilities and services of like quality for 
each such group; * * *”



48
CONCLUSION

Wherefore, it is respectfully requested that the 
judgment of the District Court be reversed.

B  cuke M arshall,
Assistant Attorney General.
W illiam  H. M urdock,

United States Attorney.
St. J ohn B arrett,
H arold H . G reene,
H oward A. Glickstein,

Attorneys,
Department of Justice,

W  ashing ton 25, D.C.
F ebruary 1963.

U .S. GOVERNMENT PRINTING OFFICE:1963