Minnick v. California Dept. of Corrections Brief Amicus Curiae City of Detroit

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1953.

No.

CITY OF KANSAS CITY, MISSOURI, A  MUNICIPAL 
CORPORATION, FRANK THEIS, PAUL M. FOGEL AND 
NED J. FORTNEY, AS MEMBERS OF THE BOARD OF 
PARK COMMISSIONERS OF KANSAS CITY, MISSOURI, 
AND J. V. LEWIS, AS SUPERINTENDENT OF PARKS 

OF KANSAS CITY, MISSOURI, Petitioners,
vs.

ESTHER WILLIAMS, LENA R. SMITH AND 
JO SEPH  N. MOORE, Respondents.

PETITION OF CITY OF KANSAS CITY, MISSOURI, 
ET AL., FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR 
THE EIGHTH CIRCUIT.

David M. Proctor,
City Counselor,

Be n j. M. P owers,
Associate City Counselor, 

J ohn J. Cosgrove,
Associate City Counselor, 

Attorneys for Petitioners.



INDEX

Opinions Below ___________________________________  2
Opinion of the D istrict Court of the W estern Divi­

sion of the W estern D istrict of M issouri Is Re­
ported in 104 Fed. Supp. 848 (R. 24) __________ 2

Jurisdiction _________________________________    3
Questions Presented _______________________________  3
Statutes Involved _________________________________  4
Pleadings and C ourt’s O p in ion______________________  4
Statem ent of Facts ________________________________  6
Specifications of E rro r ____________________________  11

Reasons Relied Upon for the G ranting of the W rit—

I. The Application of the Fourteenth  A m endm ent 
to Segregation in the Use of Swimming Pools 
Has Never Been D eterm ined by This C o u r t___  12

II. The Court of Appeals Erred in Relying on Mc- 
Laurin vs. Oklahoma As A uthority  for A ffirm ­
ing the Judgm ent and Decree of the D istrict 
Court ______________________________________  12

III. The Court of Appeals E rred in  Failing to Make
a Full and Detailed Comparison Between the 
Swope Park  Swimming Pool Facilities Reserved 
for W hites Exclusively and the Parade Park  
Swimming Pool Facilities Reserved for Negroes 
Exclusively _________________________________  13

IV. The Court of Appeals E rred in Classifying P ub­
lic Recreational Facilities Such As Golf, Picnic 
Ovens, Boating on a Lagoon and S tarlight 
Theatre, in the Same Category w ith a Public 
Swimming Pool F ac ility ______________________  14



II Index

V.. The Court of Appeals E rred in Failing to Reverse 
the Judgm ent and Decree of the D istrict Court 
and in Not Holding That the Facts, As a M atter 
of Law, Showed T hat the Swimming Pool Facil­
ities Furnished Negroes W ere Substantially
Equal to Those Furnished W hite Persons ____  15

C onclusion__________________________________ _____  16



IN THE

Supreme Court of the United States

1.4 OCTOBER TERM, 1953.

No. ...

CITY OF KANSAS CITY, MISSOURI, A MUNICIPAL 
CORPORATION, FRANK THEIS, PAUL M. FOGEL AND 
NED J. FORTNEY, AS MEMBERS OF THE BOARD OF 
PARK COMMISSIONERS OF KANSAS CITY, MISSOURI, 
AND J. V. LEWIS, AS SUPERINTENDENT OF PARKS 

OF KANSAS CITY, MISSOURI, Petitioners,
vs.

ESTHER WILLIAMS, LENA R. SMITH AND 
JO SEPH  N. MOORE, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT.

K ansas City, Missouri, a municipal corporation, and 
Frank  Theis, Paul M. Fogel and Ned J. Fortney, as m em ­
bers of the Board of P ark  Commissioners of K ansas City, 
and J. V. Lewis, as Superintendent of Parks of Kansas 
City, pray tha t a w rit of certiorari be issued to review the



2

judgm ent of the Court of Appeals, of the Eighth Circuit, 
entered on June 10, 1953, in the consolidated eases of—

No. 14,664.

City of K ansas City, Missouri, a M unicipal Corporation, 
F rank  Theis, Paul M. Fogel and Ned J. Fortney, As 
M embers of the Board of P ark  Commissioners of K ansas 
City, Missouri, and J. V. Lewis, As Superintendent of Parks 

of K ansas City, Missouri, Appellants,
vs.

E sther Williams, Lena R. Sm ith and Joseph N. Moore,
Appellees,

and

No. 14,666.

Esther Williams, Lena R. Sm ith and Joseph N„ Moore,
Appellants,

vs.

City of Kansas City, Missouri, a M unicipal Corporation, 
F rank  Theis, Paul M. Fogel and Ned J. Fortney, As 
M embers of the Board of P ark  Commissioners of Kansas 
City, Missouri, and J. V. Lewis, As Superintendent of Parks; 

of Kansas City, Missouri, Appellees.

OPINIONS BELOW.

The opinion of the  D istrict Court of the  W estern Divi­
sion of the W estern D istrict of Missouri (R. 24) is re ­
ported in 104 F. Supp. 848. The opinion in th e  Court of 
Appeals (R. 93) is  not yet officially reported.



3

JURISDICTION.

The judgm ent of the Court of Appeals was entered on 
June  10, 1953. On June  26, 1953, the Court of Appeals 
stayed the issuance of its m andate for a period of th irty  
(30) days (R. 103). The jurisdiction of this Court is in ­
voked under 28 U. S. C. A., Section 1254(1).

QUESTIONS PRESENTED.

(1) W hether the  Court of Appeals, in its decision, 
should have fully  considered the  swimming pool facilities 
afforded by K ansas City, Missouri, th rough its Board of 
P ark  Commissioners, to  negroes and w hite persons re ­
spectively, and have found, as a m atter of law, th a t the 
facilities afforded negroes w ere substantially equal to 
those furnished w hite persons.

(2) W hether swimming pool facilities furnished 
negroes, by the City of Kansas City, Missouri, through its 
Board of P ark  Commissioners, are substantially equal 
to the  swimming pool facilities furnished w hite persons, 
so tha t negroes are not deprived of th e  rights granted by 
the Fourteenth  A m endm ent to the  Constitution of the 
United States, and by Section 41, Title 8, U. S. C. A.

(3) W hether the failure to furnish  swimming pool 
facilities for negroes in Swope Park, such facilities having 
been furnished w hite persons, deprived plaintiffs (appel­
lees) of the  equal protection of th e  law  as guaranteed by 
the Fourteenth  A m endm ent to the Constitution of the 
United States, and as provided by Sections 41 and 43, of 
T itle 8, of the U. S. C. A., even though substantially equal 
swimming pool facilities have been provided for negroes 
free of charge in a public park  im m ediately adjacent to 
th a t section of Kansas City inhabited by the larger portion 
of the  negro population.



4

STATUTES INVOLVED.

Sections 41 and 43, of T itle 8, of the U. S. C. A.

PLEADINGS AND COUNT’S OPINION.

The controversy had its origin in a suit institu ted  by 
th ree negroes against Kansas City and certain  of its of­
ficials, alleging tha t they had been denied admission into 
the Swope P ark  Swimming Pool used exclusively by 
whites, and prayed for, among other things, a perm anent 
injunction. In  the ir petition, as amended, th e  plaintiffs 
pled (R. 6):

“ * * * and th a t defendants and each of them , 
the ir privies and successors in office be enjoined 
perm anently  from  denying to plaintiffs and all o ther 
Negro citizens of K ansas City, Missouri, equal access 
to and enjoym ent of the  aforesaid recreational facili­
ties subject only to rules and regulations applicable 
to all without regard to race” (Italics o u rs ).

Thus, the plaintiffs prayed for a ruling th a t segrega­
tion in the use of the swimming pool was unconstitutional 
per se.

Your petitioners, in the ir amended joint answ er (R. 
13, Par. 12) pled:

“Defendants fu rth e r allege tha t since they  have 
provided substantially equal outdoor swimming pool 
facilities for the mem bers of the  Caucasian and Negro 
Races, respectively, th a t segregation of the  races in 
the use of said facilities is not in violation of the 
Fourteenth  A m endm ent to the  Constitution of the  
United States and tha t neither plaintiffs nor any m em ­
ber of the negro race has, as a consequence, been de­
prived of any righ t guaranteed by said am endm ent to 
the Constitution.”



5

In  the ir answ er your petitioners relied on the uniform  
decisions of the Suprem e Court of the  U nited S tates ru l­
ing th a t separate public facilities if they are  substantially  
equal are not violative of the Fourteenth  Amendment.

The United States D istrict Court for the W estern Divi­
sion of the W estern D istrict of Missouri, in its opinion, 
made findings of fact tha t the Parade P ark  Swimming 
Pool, as constructed and m aintained by defendant, Kansas 
City, for use and enjoym ent of negro citizens and resident 
taxpayers, is not substantially  equal in character, location, 
appointm ent and facilities generally w ith m ajor swimming 
pools constructed and m aintained by said defendant, for 
use and enjoym ent for w hite citizens and resident ta x ­
payers of said City (R. 36).

And said D istrict Court fu rther adjudged and declared 
tha t the refusal of the defendant, the  City of K ansas City, 
Missouri, acting through its Board of P ark  Commissioners 
and the Superintendent of Parks, to perm it plaintiffs to 
use the Swope P ark  Swimming Pool solely because of 
race and color w hile granting this righ t to w hite persons, 
deprives the plaintiffs of the legal protection of the  laws 
of the Fourteenth  A m endm ent and Sections 41 and 43, Title 
8, U. S. C. A., and rights and privileges secured thereunder 
(R. 46-47).

In  its opinion, the Circuit Court of Appeals stated (U. 
S. C. A., p. 8) (R. 93):

“These and the  m any other differences pointed out 
by the tr ia l court, which we shall not undertake to re ­
peat, would make it impossible for us to say as a matter 
of law tha t the court’s appraisal of the two pools as 
not constituting substantially equal facilities for swim­
ming enjoym ent was clearly erroneous” (Italics ours).



6

Thus, the Court of Appeals did not ru le tha t the facili­
ties of the two pools, one for W hites and one for Negroes, 
w ere not substantially  equal.

The Court of Appeals also stated  in its opinion (U. S. 
C. A., p. 6) (R. 97):

“The adm ittance of negroes to Swope Park, the  
same as whites, for enjoym ent of it as a general recrea­
tion area or center, in accordance w ith  the  object for 
which it was m aintained, bu t w ith  a denial to the 
negro of the privilege of engaging in  diving, swim ­
ming, wading and sun-bathing activity, as one of the 
incidents of the com prehensive recreational program  
afforded by the Park  to others on an outing occasion, 
would constitute in our opinion unequal treatment and 
illegal discrimination against the negro in his right to  
enjoy Swope Park  for w hat it had been made to be­
come” (Italics ours).

According to the court’s opinion the “unequal tre a t­
m ent and  illegal discrim ination” was not based on a com­
parison of two pools—Swope P ark  and Parade Park, which 
was the issue, but upon the  City refusing the plaintiffs, 
admission to the Swope P ark  Pool in a public park  w here 
they w ere perm itted to use other recreational facilities. 
This ruling was foreign to the issues involved.

STATEMENT OF FACTS.

The evidence adduced at the tr ia l developed the fol­
lowing facts, as to which there was no dispute.

P lain tiffs are citizens and taxpayers of K ansas City 
and m em bers of the negro race. The individual defendants 
are m em bers of the Board of P ark  Commissioners and 
Superintendent of Parks of Kansas City, Missouri, and 
w ere acting in their official capacities in respect to th e



7

alleged violation of constitutional rights charged by p lain­
tiffs. The City, through said Board, m aintains and op­
erates th ree outdoor swimming pools, one in Swope Park  
(for w hites exclusively) built in 1942 (R. 65), one in Parade 

Park, in the vicinity of 17th and Paseo Boulevard (for 
negroes exclusively), bu ilt in 1939 (R. 69), and for th ree 
and one-half years thereafter operated as the only m ajor 
swimming pool of the City w ith  m odern equipm ent and 
standard features; and one in Grove Park , near 15th and 
Benton (for w hites exclusively), built about forty years 
ago.

The City also m aintains and operates a junior swim­
ming pool for negroes, consisting of a w ading pool for 
small children and a swimming pool for inexperienced 
swimmers, built in 1950, and in Nelson C. Crews Park, in 
the vicinity of 27th and W oodland Avenue, about ten blocks 
south of Parade Park, and three other jun ior swimming 
pools for w hites (R. 70). All four junior pools are of the 
same size and equipment, built in recent years according 
to identical plans, in attractive park and playground areas. 
The Penn  Valley pool, in the vicinity of 25th and Sum m it 
Streets, built as an outdoor swimming pool and reserved 
exclusively for w hite persons, was demolished in  1949 to 
clear a right-of-w ay for traffic, and has not been replaced.

Character of Facilities.

The w ater used in the Swope P ark  Swimming Pool and 
the  Parade P ark  Pool is taken from the same source and is 
the same as th a t used for drinking purposes throughout 
the City (R. 69). The w ater is trea ted  w ith chlorine, 
alum  and other chemicals and then purified through filtra ­
tion and circulated under pressure in  the pools (R. 69). 
Life guards w ith senior Red Cross life guard qualifications, 
are constantly m aintained at both pools, the num ber vary ­



8

ing w ith the num ber of patrons, bu t always sufficient to 
provide adequate life guard service (R. 69). There w as 
a to tal of tw enty-tw o attendants employed at the  P arade 
P ark  Pool at the tim e suit was institu ted . A t both pools 
a system of checking valuables, at a cost of ten  cents, is 
m aintained, and the same system for checking w earing ap­
parel of the patrons is employed. Both pools have separate 
toilets for men and women and the said facilities are sub­
stantially  equal (R. 70). Both pools and the buildings in 
connection therew ith  are cleaned w ith the same quality 
of m aterials and in the same m anner w ith  chem ically 
trea ted  w ater according to the standards set up  by the 
Am erican Public H ealth Association (R. 70); at both pools 
the w ater, buildings, and toilet facilities, are kept at a 
high level of cleanliness and sanitary condition (R. 70). 
Separate dressing rooms for m en and women, substantially  
equal in character, are furnished a t both pools. The P arade 
Park  Pool for negroes’ dressing room and toilet facilities are 
housed in  an attractive s tructu re of stone and stucco w ith  
the central lobby faced w ith tile (R. 69). Both pools are 
substantially equal in their setting in tha t they are su r­
rounded by blue grass turf, shade trees and shrubs. The 
Parade Park  Pool is in the Parade P ark  which extends 
northw ard to 15th and Paseo, and is bordered on the  w est 
by The Paseo, a boulevard w ith a double roadway sepa­
rated  by wide parking of blue grass, trees and shrubs. 
The norm al swimming season for both pools is from  Ju n e  
15th to  and including Labor Day (R. 70).

Size of Pools.

The Swope Park  Pool has an area of 20,125 square 
feet and the P arade P ark  Pool an area of 4,725 square feet 
(R. 78). The area of the Parade Park  Pool is approxi­
m ately sixteen per cent of the total area of the th ree m ajor



9

pools and 23.5 per cent of the swimming area of the Swope 
P ark  Pool alone. The Swope P ark  Pool is divided by 
concrete partitions, into th ree sections, a shallow one for 
children and non-swimmers, a deep one for divers, and the 
other, by far the  largest of the three, for swimmers gen­
erally (R. 73). In  the Parade P ark  Pool there are no 
partitions dividing the pool into com partments, bu t the 
portion used by divers is roped off from the portion used 
exclusively by swimmers. The Swope Park  Pool is pro­
vided w ith  a sunning beach and autom atic hair dryers, but 
these features are not furnished a t the  Parade P ark  Pool 
(R. 73).

Use of Pools.

The population of K ansas City on January  1, 1950, was 
456,622, of which 55,682 w ere negroes (R. 76, 78); the 
negro population is approxim ately one-eighth, or 12.172, 
of the  to tal population. The negro population in the last 
decade increased th irty -four per cent. Thus, for the colored 
population, constituting approxim ately one-eighth of the 
whole, one-sixth of the to tal m ajor swimming pool area is 
provided. During the swimming season of 1951, there was 
a registered attendance of 94,460 at the Swope Park  Pool, 
or a num ber equal to about tw enty-three per cent of the 
total w hite population; there  was a registered attendance 
of 59,470 at the  Parade P ark  Pool (R. 76'), or a num ber 
equal to about one hundred and six  per cent of the to tal 
negro population. There w ere 11,795 admissions to  the 
Nelson C. Crews junior pool (for negroes) registered in 
1951, or a num ber equal to tw enty  per cent of the to tal 
negro population (R. 76). The Parade Park  Pool and 
the Nelson C. Crews Pool, both for the exclusive use of 
negroes, are near the center of a large residential district 
occupied alm ost exclusively by negroes, who are served in



10

this d istrict by a YMCA, a YWCA, a high school, grade 
schools and churches used exclusively by negroes. Both 
pools are located in parks w ith attractive surroundings as 
shown by photographs in evidence (Exhibits B to T, in ­
clusive, R. 62).

Charges at the Pools.

A t the  Swope Park  Pool a fee of forty  cents is charged 
adults and tw en ty  cents for children under twelve, w ith  
free admission for small children before noon on certain 
days of the week. A t the P arade P ark  Pool th e  admission 
is free for all patrons, adults and children. N either 
negroes nor w hites are taxed for the operation, m ain­
tenance and repairs of the  Swope P ark  Pool. Since its  
completion, it has produced revenue supplied by ad­
mission fees, totaling $53,515.23 to Septem ber 1, 1951, in 
excess of the  to tal cost of operation, m aintenance and 
repairs (R. 82-83). The cost of operating the Parade P ark  
Pool in  1951 was $14,197.48, derived entirely  from  taxes 
(R. 81). Its  to tal cost to the  taxpayers for five years from  
1947 to  1951 was $53,881.75 (R. 77). On hot days the 
pool in Parade Park  is frequently  more overcrowded th an  
the pool at Swope Park , as 250 swimmers, w ith  2-hour 
shifts, is the largest num ber th a t can be accommodated 
at one tim e at the Parade P ark  Pool, which is open for the  
public from  10:00 a. m., to 10:00 p. m., except on Sundays 
w hen it is open to the public from  8:00 a. m., to 10:00 p. m. 
(R. 73). The occasional overcrowded condition at 

Parade P ark  Pool is due in  p a rt to  the  fact tha t no ad­
mission fee is charged, resulting, under the  regulations 
employed, in m any patrons using the pool m ore than  once 
on a single day (R. 73); said condition is also attributable, 
in part, to th e  use of the  Parade Park  Pool facilities by 
persons living outside of K ansas City (R. 73). Patrons of



11

the Swope P ark  Pool, particu larly  on holidays and Sun­
days, in extrem ely hot w eather, are at times compelled 
to stand in line awaiting the ir tu rn  for admission (R. 74).

Junior Swimming Pools.

The junior swimming pool for negroes, m aintained in 
the Nelson C. Crews Park, has an area of 1,357 square feet, 
or 25 percent of the to tal area of the  four junior swim ­
mining pools; all four of the  junior swimming pools are 
m aintained in substantially the same condition as to 
cleanliness and health, w ith  no admission fees charged (R. 
76).

SPECIFICATION OF ASSIGNED ERRORS.

I.

The Court of Appeals erred in relying upon M cLaurin 
vs. Oklahoma State Regents for H igher Education 
as authority  for affirm ing the judgm ent and decree 
of the D istrict Court.

II.

The Court of Appeals erred  in failing to  make a full 
and detailed comparison between the Swope Park  
Swimming Pool Facilities reserved for w hites ex ­
clusively and the Parade P ark  Swimming Pool 
Facilities reserved for negroes exclusively.

III.

The Court of Appeals erred in failing to reverse the 
judgm ent and decree of the D istrict Court and in not 
holding tha t the undisputed facts, as a m atter of 
law, showed tha t the  swimming pool facilities 
furnished negroes w ere substantially equal to those 
furnished w hite persons.



12

REASONS RELIED UPON FOR THE GRANTING;
OF THE WRIT.

I.

The Application of the Fourteenth Amendment to
Segregation in the Use of Swimming Pools Has 

Never Been Determined by This Court.

We find no record of a decision of the Suprem e Court 
of the U nited States in terpreting  the scope of the F our­
teen th  Am endm ent in  its application to segregation in  the  
use of swimming pools. The close association of half- 
naked persons in swimming pools w hen complicated by 
racial differences sometimes leads to a  smoldering resen t­
m ent of explosive character. P resently, there  are m any 
cities in the United States whose combined population in ­
volves several m illion citizens, confronted w ith  the problem  
of segregated use of public swimming pools; consequently, 
the issues involved in th is case are of great public interest, 
national im portance and unique character.

II.

The Court of Appeals Erred in Relying on McLaurin 
vs. Oklahoma As Authority for Affirming the 

Judgment and Decree of the District Court.

The Court of Appeals relies on the case of McLaurin v. 
Oklahoma State Regents for Higher Education et al., 339 
U. S. 637, and draw s an analogy betw een tha t case and th e  
case at bar. We respectfully subm it th a t the re  is no anal­
ogy. In the M cLaurin case, there  was no other graduate 
school for negroes. In  Kansas C ity there w as another firs t- 
grade swimming pool for negroes substantially  equal to 
the Swope P ark  Pool in all features essential for th e  p riv ­
ilege and pleasure of swimming. If there had been no



13

other m ajor swimming pool for negroes in Kansas City and 
if the plaintiffs had been adm itted to  the Swope P ark  Pool 
bu t denied certain  privileges therein  enjoyed by w hite 
persons, then  the  M cLaurin case m ight apply, bu t p lain­
tiffs w ere not adm itted to the Swope P ark  Pool at all. The 
M cLaurin case is no authority  for the decision of the  Court 
of Appeals in the case at bar.

III.

The Court of Appeals Erred in Failing to Make a 
Full and Detailed Comparison Between the Swope 
Park Swimming Pool Facilities Reserved for Whites 
Exclusively and the Parade Park Swimming Pool 

Facilities Reserved for Negroes Exclusively.

The Court of Appeals based its opinion on the  single 
fact tha t the plaintiffs w ere not adm itted to the Swope 
Park  Pool although adm itted to Swope Park  and to the 
use of other recreational facilities therein. The Court of 
Appeals ignored and disregarded a comparison of the facili­
ties of the two pools and failed to consider all of the factors 
which m ust be considered in determ ining the question 
of substantial equality of facilities. The record contained 
a full, detailed and undispuited statem ent of the physical 
facilities, including such v ital elem ents as accessibility to 
prospective patrons using the facilities and the im portant 
elem ent of entrance fees. The resu lt is tha t there has been 
no determ ination in this case of the most vital and signifi­
cant question involved.



14

IV.

The Court of Appeals Erred in Classifying Public 
Recreational Facilities Such As Golf, Picnic Ovens, 
Boating on a Lagoon and Starlight Theatre, in the 

Same Category with a Public Swimming Pool 
Facility.

There is a distinct line of dem arcation in the in te r­
racial implications, and reactions involved between a  
swimming pool and a S tarlight Theatre. The innate de­
sire of women for physical privacy based on difference 
of sex, is a rea l and not a m ythical barrier; sex con­
sciousness does not arise from  th e  interm ingling of per­
sons, irrespective of race or color, w hen they are fu lly  
clothed on a golf course or in a theatre. To illustrate, if 
at both the Swope P ark  Pool and the Parade P ark  Pool, 
the. Board of P ark  Commissioners, in  th e  in terest of 
economy, or for o ther reasons, should close the rest rooms 
for men and perm it them  to use th e  rest rooms provided 
for women, the  la tte r  would not use the rest rooms, nor 
the pools respectively, not on account of color or race, 
but because of an inborn desire for physical privacy. O nly 
in a lesser degree do most women, w ith  scant swimming 
attire, have an aversion to interm ingling in a swimming 
pool w ith  m ale strangers of another race, and we respect­
fully subm it tha t no m andate or decree of Court, w ill 
obliterate this tra it of hum an nature .



15

V.

The Court of Appeals Erred in Failing to Reverse 
the Judgment and Decree of the District Court and 
in Not Holding That the Facts, As a Matter of Law, 
Showed That the Swimming Pool Facilities Fur­
nished Negroes Were Substantially Equal to Those 

Furnished White Persons.

There is no issue of fact in  this case.. None of the evi­
dence as to the  character of the swimming facilities is dis­
puted. The tria l court’s finding of fact tha t the Parade 
P ark  Pool for negroes is not substantially equal in char­
acter, location, appointm ents, and features, to the m ajor 
pool constructed and m aintained for use and enjoym ent of 
w hite citizens and resident taxpayers of Kansas City, 
therefore, becomes a question of law.

Therefore, the ruling of the Circuit Court of Appeals 
th a t the City was guilty of “ unequal trea tm en t and illegal 
discrim ination against the negro” to enjoy the Swope P ark  
Swimming Pool involves a question of law  only, which the 
court did not decide. It was the function and duty of the 
Court of Appeals to hold, as a m atter of law, tha t the facili­
ties furnished negroes either w ere or w ere not substantially  
equal to the facilities furnished w hite persons at the Swope 
P ark  Swimming Pool. If the Parade P ark  Pool furnished 
for the exclusive use of negroes was substantially (not 
identically) equal to the facilities furnished the w hites at 
the Swope P ark  Swimming Pool, it was the function and 
duty of the Court of Appeals to so find and in tha t event 
the segregation employed by the  City was law ful and in 
accordance w ith the rules of the Suprem e Court of the 
U nited States in all segregation cases.



16

CONCLUSION.

For the foregoing reasons, this petition for a w rit of 
certiorari should be granted.

In  the event the court should gran t the w rit of cer­
tiorari, petitioners request the  court to enter an order s tay ­
ing the enforcem ent of the judgm ent below.

Respectfully subm itted,

David M. P roctor,
City Counselor,

Be n j. M. P owers,
Associate City Counselor, 

J ohn J. Cosgrove,
Associate City Counselor, 

Attorneys for Petitioners.