Hawkins v. Town of Shaw, MS Brief for Appellants

    r
\ In The

UNITED STATES COURT OF APPEALS 
For Tha Fifth Circuit 

No. 290X3

ANDREW HAWKINS, at al..
Plaintiffa-Appalljmta, *

-v.-
TOWN OF SHAW, MISSISSIPPI, at al.,

Defendants-Appalleas.

Appeal from the United States District Court for tha 
Northern District of Mississippi

BRIEF FOR APPELLANTS

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle New York, Mow York 10019
REUBEN V. ANDERSON 
MELVYN LEVENTHAL

538% North "Parish Street 
Jackson, Mississippi 39202

* Attorneys for Plaintiffs-Appallants



I N D E X

Issues Presented ...........................................  1
Statement of the Case .......................................  2
Statement of the Facts ......................................  4
Summary of the Argument......... ............................ 11
Argument

I. The Court Below Erred In Failing To Apply A Strict Standard Of Review under The Equal Protection 
Clause In The Face Of Plaintiffs' Showing Of A 
De Facto Racial Classification In The Provision Of 
Municipal Services .................................  13

II. Defendants Have Failed To Meet Their Heavy Burden 
Of Justifying Their Denial To The Black Residents 
Of Shaw Of Equality In The Provision Of Municipal 
Services And Facilities; And Plaintiffs Are Enti­
tled To Injunctive Relief ..........................  24

III. The Court Below Erred In Holding That Equitable Re­
lief Against The Town of Shaw Was Not Available In 
A Suit To En oln The Deprivation Of Plaintiffs'
Right To The Equal Protection Of The L a w s ....... 49

Conclusion ..................................................  53



Table of Cases Page
Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961) .... 50
Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963).....  51
Arrington v. City of Fairfield, 414 F.2d 687 (5th Cir. 1969).. 18
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), 376 U. S.910 (1964)..............................................  51
Baker v. Carr, 369 U. S. 186 (1962) .........................  47
Bell v. Hood, 327 U. S. 678 (1946) ..........................  47
Bivens v. Six Unknown Agents, 409 F„2d 718 (2d Cir. 1969)....  51
Board of Public Instruction of Duval Co. v. Braxton, 325

F.2d 616 (5th Cir. 1964) ...............................  48
Brooks v. Beto, 366 F.2d 1 (5th Cir. en banc 1966).......... 20*47
Chavis v. Whitcomb, 305 F. Supp. 1364 (S.D. Ind. 1969)......  18
Coleman v. Alabama, 389 U. S. 22 (1967) ....................  20
Cypress v. Newport News General and Nonsectarian Hospital

Hospital Ass'n, 375 F.2d 648 (4th Cir. 1967) ...........  19
Fortson v. Dorsey, 379 U. S. 433 (1965) .....................  18
Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736

(N.D. 111. 1969) .......................................  48
Gomillion v. Lightfoot, 364 U. S. 339 (1960) ................  22
Griffin v. School Board of Prince Edward County, 377 U. S.

218 (1964) .............................................  48
Hadnott v. City of Prattville, No. 2886-N (M.D. Ala. Feb. 2,

1970) ..................................................  48
Hawkins v. North Carolina Dental Society, 355 F.2d 718

(4th Cir. 1966) ........................................  19
Henry v. Clarksdale School District, 409 F.2d 682 (5th Cir.

(1969) .................................................  39
Hobson v. Hansen, 269 F. Supp. 401 (D.C. Cir. 1968)... 16,17,20,23
Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968)......  16,19.24.43

ii



Page
Kelly v. Page, 335 F.2d 114 (5th Cir, 1964) .................  51
Loving v. Virginia, 388 U. S. 1 (1967) ......................  13
McGowan v. Maryland, 366 U. S. 420 (1961) .... ............... 12
McLaughlin v. Florida, 379 U. S. 184 (1964) ............ 12,13,14,20
Mayhue v. City of Plantation, 375 F.2d 447 (5th Cir. 1967).... 51
Meredith v. Fair, 298 F.2d 696 (5th Cir, 1962)............. •• 19
Monroe v. Pape, 355 U. S. 167 (1960)....................... 49,50,51
Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920

(2d Cir. 1968) .........................................  13
Pitts v. Board of Trustees, 84 F. Supp. 975 (E.D. Ark. 1949).. 48
Patton v. Mississippi, 332 U. S. 463 (1947) ..... ............ 22
Reynolds v. Sims, 377 U. S. 533 (1963) ......................  47
Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir, 1969)....  50
Shapiro v. Thompson, 394 U. S. 618 (1969) ...................  39
Smith v. Texas, 311 U. S. 128 (1940) .......................  17,19
Smuck v. Kansen, 408 F.2d 175 (D.C. Cir. 1969)..............  16
Southern Almeda Spanish Speaking Organization v. Union City,

No. 25,195 (9th Cir., Mar. 16, 1970) ................... 18,46
Swain v. Alabama, 330 U. S. 202 (1965) .....................  20
United States v. Clark, 249 F.Supp. 720 (S.D. Ala. 1965) ......  52
United States v. Holmes County, 385 F.2d 734 (5th Cir. 1967).. 51
United States v. Jefferson County Board of Education, 380 F.

2d 385 (5th Cir. en banc 1967) ..........................  48
United States v. Richberg, 398 F.2d 523 (5th Cir. 1968) .....  24
United States ex rel Seals v. Wiman, 304 F.2d 53 (5th Cir.

1952) ............. ..................................... 22
Yick Wo v. Hopkins, 118 U. S. 356 (1886) ....................  19



IV
\ Page

Statutes
42 United States Code, § 1983 3 ,49,50

Other Authorities
Note, Developments in the Law —  Equal Protection, 82 Harv.
L. Rev. 1065, 1977-87 (1969) .............................  12,17,45
Report of the National Advisory Commission on Civil Disor­
ders, 143-50 (Bantam Ed. 1968) ...........................  2



In The
UNITED STATES COURT OP APPEALS 

For The Fifth Circuit 
No. 29013

ANDREW HAWKINS, et al..
Plaintiffs-Appellants,-v. -

TOWN OF SHAW, MISSISSIPPI, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi

BRIEF FOR APPELLANTS

Issues Presented
1. Whether the court below erred in failing to require defendants 

to meet the heavy burden under the Equal Protection Clause of estab­
lishing overriding governmental interests to justify their provision of 
a consistently inferior level of municipal services to the black resi­
dents of Shaw, and in sanctioning instead this unequal treatment upon
a finding that it was supported by mere "rational considerations?"

2. Whether plaintiffs are entitled to equitable relief when the 
record discloses no overriding governmental interest to justify the 
unequal treatment of the black residents of Shaw?

3. Whether equitable relief may be granted against a municipal­
ity in a suit to redress the violation of plaintiffs' rights to the 
equal protection of the laws guaranteed by the Fourteenth Amendment of 
the United States Constitution?



Statement of the Case

The central issue in this case is whether this Court will apply 
the same standards of equal protection to the provision of municipal 
services by a municipality that it has applied to the full range of 
other governmental activities which historically have been tainted by 
racial discrimination. At issue is whether this Court will condemn 
the degrading inequalities in the provision of municipal services that 
constitute one of the most tenacious badges of slavery in cities 
throughout this nation.

Plaintiffs are representatives of a class of the impoverished 
black residents of the Town of Shaw, Mississippi, who brought this 
action on November 21, 1967 to enjoin the unequal provision of municipal 
services to the black residents of the town (R. 368-375). They sought 
to require the defendants —  the Town, its Mayor, Aldermen and its 
Clerk to equalize the provision of street paving, street lighting, 
storm water drainage, traffic control, sanitary sewerage, water supply 
and fire hydrants to the town's black and white residents.

Defendants' motion to dismiss the complaint (R. 376-377) was over­
ruled as to the individual defendants and sustained as to the Town of 
Shaw on July 12, 1963 (R. 410). In its unreported Memorandum Opinion 
the court below held that proof of racial or economic discrimination 
in the provision of municipal services would entitle plaintiffs to

-L/ Sef of t îe National Advisory Commission on Civil Disorders.143-50 (Bantam Ed. 1 9 6 8 ) . ------------ -----------— ----

-2-



relief under 42 U.S.C. § 1983; that the suit was properly brought as 
a class action; that the individual defendants were not immune from 
suit; and that plaintiffs were not bound to have exhausted any avail­
able state remedies prior to seeking federal relief (R. 404-409). As 
to the municipality, the court held that it was not a "person" within 
the meaning of 42 U.S.C. § 1983 and that injunctive relief against it 
was not available (R. 408).

A trial was held on March 20, 21 and 22, 1969 at which time
testimony and documentary evidence was presented on the issue of the
equality of the municipal services and facilities provided to the
black and white residents of Shaw (R. 1-367). On September 19, 1969,
judgment was entered dismissing the complaint with prejudice and tax-

2/ing plaintiffs with all costs.(R. 574). The court applied the
traditional restrained standard of judicial review in equal protection
cases to the evidence. It stated the rule as follows:

If actions of public officials are shown to 
have rested upon natural considerations, ir­
respective of race or poverty, they are not 
within the condemnation of the Fourteenth 
Amendment, and their acts may not be proper­
ly condemned upon judicial review. Persons 
or groups who are treated differently must 
be shown to be similarly situated and their 
unequal treatment is demonstrated to be with­
out any rational basis or is based upon an 
invidious factor such as race (R. 570-71).

2/ Although the complaint alleged that there was discrimination on 
the basis of both race and poverty, the proof showed that race 
alone was the basis for discrimination in the provision of the 
various services.

3/ The opinion of the court below is found at R. 559-573 and is 
reported at 303 F. Supp. 1162 (N.D. Miss. 1969).

-3-



Although plaintiffs' statistical evidence was undisputed, and appar­
ently accepted by the court, the court nevertheless denied relief on 
the grounds that the consistent inferiority of the services provided 
to the black neighborhoods was sufficiently explained and justified 
on the basis of such rational considerations (R. 571-73). Having con­
cluded that plaintiffs had not established a violation of the Equal 
Protection Clause, the court did not consider the propriety of the in­
junctive relief they sought and remitted them to the political process 
es for relief (R. 573).

Plaintiffs perfected their appeal on October 2, 1969 (R. 575) and 
cn December 9, 1969 they were granted leave by the district court to 
appeal in forma pauperis (R. 613).

Statement of the Facts

The Town of Shaw, Mississippi was incorporated in 1886 and is 
located deep in the Mississippi Delta. Its population, which has 
undergone little change since 1930, consisted of 2,062 people accord­
ing to the 1960 census, of which 1,327 were black, and presently con­
sists of approximately 1,500 black and 1,000 white residents (R. 560).

The facts pertaining to the level of municipal services provided 
to the different areas of the town are largely undisputed; only the 
inferences to be drawn from these facts and their legal consequences 
are at issue. The evidence relates to virtually all of the municipal 
services that are essential to an urban environment; street paving, 
street lighting, storm water drainage.- sanitary sewerage, water supply

-4-



fire hydrants; and traffic control. In the present case, this evi­
dence discloses that there is a past and present correlation between 
the areas of inferior municipal services in Shaw and the town's black 
neighborhoods. It shows that black Mississippians, whose historic 
denial of political, racial and educational equality has been re­
corded in the opinions of this Court, have also been denied those 
rudimentary features of municipal life that are enjoyed by white 
residents.

Initially, it must be noted that residential racial segregation 
in Shaw is almost total. There are 451 dwelling units occupied by
blacks in town. Of these, 437 (97%) are located in neighborhoods in

4/which no whites reside. Hie town's 231 houses occupied by whites 
are similarly segregated. The exceptions are seven black homes that 
are located outside of the areas of black racial concentration, and 
another seven black homes that are located in proximity to ten white 
homes. These neighborhood boundaries represent more than mere resi­
dential segregation; they signify the division of Shaw into two sub­
cities in which the municipal services are significantly unequal.
The statistics present a stark picture of an unrelieved pattern of 
substantially inferior services and facilities in the black neighbor­
hoods of town.

Almost 98% of the homes that front on unpaved streets in Shaw
5/are occupied by blacks. While approximately 56% of the black

4/ Appendix A, pp.la-2a,below, lists the white and black neighbor­
hoods of Shaw with the number of houses in each.

5/ Appendix B, pp.3a-5a, below, lists all of the unpaved streets in Shaw and includes the number of houses and the race of the 
occupants on each.

-5-



residents of town lived on unpaved streets at the time of trial, less 
than 3% of the white residents did. Of the 35 presently unpaved 
streets in Shaw, 33 are inhabited by blacks. The major proportion of 
the streets in white residential neighborhoods, moreover, were paved 
before the end of the 1930s, but no street in any black neighborhood 
was paved before 1956.^ Indeed, 96% of the white residents lived on

3/paved streets by this time.
Closely related to the condition of the streets, is the extent 

of storm water drainage that is provided. The absence of adequate 
drainage vastly compounds the problems caused by unpaved streets De­
cause accumulations of water turn unpaved streets into mud (R. 50). 
Thus, in Shaw the hardship to the black residents of unpaved streets 
is made worse because the drainage facilities in black neighborhoods 
are uniformly worse than those in white neighborhoods. The court be­
low recognized that "[u]nderground storm sewers exist largely in the 
town's areas south of Porters Bayou and drainage ditches have also 
been constructed" (R. 565). Indeed, the undisputed evidence shows 
that underground storm sewers have been provided only in the town s 
white areas south of Porters Bayou -  51% of the white population of 
Shaw live on streets served by these sewers —  and that the remainxn: 
white areas have a continuous system of well-maintained drainage

fi/ Thus the court's statement at R. 571 that not until a .
BXZ is^Cleading?1
A  VZSttX ved.̂ Before ^  ^

2/ See note 16, below.
-6-



ditches (R. 55-57). In contrast, the only storm water drainage in 
the black neighborhoods consists of drainage ditches running along 
several north-south streets with narrow, shallow ditches or no ditches

v &pt all provided to drain the east-west streets (R. 51-54). Although 
there was agreement that all areas of Shaw have drainage problems be­
cause of the poor drainage characteristics of Delta soil and because 
the capacities of both bayous which flow through the town have been 
overtaxed (R. 115), it is clear that the only substantial improvements 
in drainage conditions have been made in white areas of the town (R. 
56, 58).

The unpaved, poorly drained streets in the black neighborhoods 
of Shaw are also poorly lighted in comparison with white residential 
ptreets. Although black occupied homes account for 65% of the resi­
dential dwelling units in town, the streets on which they front haveb 
allocated only 44% of the residential street light fixtures; and white 
homes which account for only 35% of the population have 56% of the

Ustreet light fixtures. But the quantitative difference in lighting

8/ Main drainage ditches in the black neighborhoods have been con­
structed only on Lampton Street, Jackson Street, Railroad Avenue 
and along the railroad right of way (R. 51-54).

9/ Plaintiffs' Exhibit No. 7, shows the location and type of all 
the street light fixtures on a map of Shaw. Out of the total of 
162 street lights located in residential areas, 71 are in black 
neighborhoods and 91 are in white neighborhoods.

-7-



fixtures does not expose the full measure of the inferiority of street 
lighting in the black neighborhoods to that in the white neighborhoods 
There are two kinds of street light fixtures in use in Shaw —  old ba.\ 
bulb incandescent fixtures that provide minimal illumination, and mod­
em, powerful mercury vapor fixtures (R. 69-70). The court below 
agreed that modem fixtures provide superior illumination and that 
they had been installed only in areas occupied by white persons, whil- 
the black areas were served by bare bulb lighting (R. 563). In fact, 
77% of street lights in the white residential neighborhoods are of th
modern variety while not a single mercury vapor fixture has been in-

JS/stalled in a black residential neighborhood (R. 70).
Finally, the streets in the black neighborhoods of Shaw have 

virtually no traffic control signs despite the numerous intersections 
of local with through streets (R. 72). In the white neighborhoods, o- 
the other hand, almost every intersection of any two streets, regard­
less of how little used, has stop signs controlling traffic on one of 
the streets (R. 72). The absence of traffic control signs on the 
streets in black neighborhoods is consistent with the inequality of 
the street facilities in all other respects.

A modern sanitary sewerage system of sewer mains emptying into 
a lagoon south of town was completed in 1965, While this system 
originally served every white home in town with the exception of two 
isolated houses in the extreme northwest and southeast comers of the

10/ See Plaintiffs' Exhibit No. 7. Several mercury vapor fixtures are 
located near black neighborhoods, but they serve commercial prop­
erty only (R. 70). 70 out of the 91 street lights in white resi­dential neighborhoods are medium or high intensity mercury vapor fixtures.

-8-



town (R. 209-10), it did not extend to approximately 35% (154) of the
black residences (R. 464). Despite several extensions to the system,
at the time of trial almost 20% (87) of the black residences were

12/still unserved by sanitary sewers (R. 211-12). The same 99% of the 
white community, however, continued to be served. In the absence of
sanitary sewers, raw waste collects in drainage ditches throughout

%these areas and presents a very real health hazard to the black resi­
dents (R. 62).

The town's water distribution system consists of pipes radia­
ting from two wells in the central part of town. The same pipes 
provide water for domestic use and for fire hydrants (R. 63). Al­
though water is supplied to all residents of the town, the court below 
noted that water pressure is inadequate in certain areas (R. 566).
The undisputed evidence established that the two areas where water 
pressure was most inadequate was the black neighborhood in the north­
east quadrant of town (the Gale Street area,located north of Silver

12/ In addition to the 87 black homes presently not served (see note 
12, below) the sewer system originally did not extend to the fol­
lowing streets in black neighborhoods on which 67 homes are lo­
cated: Welbourne, Starkes, Manaway, Lacey, Lincoln, Bethlehem,
Canaan, Railroad Avenue and Mose Avenue. See Plaintiffs' Exhibit 
No. 2 1 Defendants' Exhibit No. 5 and R. 207-08.

12/ The sanitary sewer system presently does not serve the following 
black areas with a total of 87 homes: the entire Reeder Addition
(northwest quadrant of town) with 38 homes; Rogers Street (east of Route 61) with 8 homes; White Oak Street with 9 homes; 
Issaquena Street with 3 homes; Elm Street (south of Mason Street) 
with 14 homes; Canall Street with 9 homes; Railroad Avenue (north 
of Mose Street) with 4 homes ;Wilson Avenue (west of Gale Street) 
with 2 homes. See Defendants' Exhibit No. 5 and Plaintiffs’ Exhibit No. 2.

-9-



Bayou and east of the railroad tracks) and the black neighborhood in 
the southwest quadrant of town (the "Promised Land"/ located south of 
the town maintenance yard and east of the railroad tracks) (R. 251) 
These areas are inhabited by 53% of the town's black population.
The reason for the inadequacy of the water system in these areas io 
obvious. In the Gale Street area 211 homes are served by the same 4" 
water main while in the Promised Land most of the 74 homes are served

13/
by 2" or I V  mains. In contrast, most of the white community is 
served by 6" water mains; and the 4" mains that are in white areas

JJy
serve far fewer residences than do the 4" mains in the black areas.

Fire hydrants are placed much less frequently in the black 
neighborhoods than in the white neighborhoods, in the face of much 
greater density of wooden houses (R. 65-57). The 437 homes in black 
residential neighborhoods are served by only 23 fire hydrants while 
the 244 homes in the white residential neighborhoods are served by 3x 
hydrants. Thus, 65% of the population has access to only 42% of the 
fire hydrants while 35% of the population has access to 58%. The 
town engineer testified that in his opinion the entire eastern part 
of the Promised Land, the entire Reeder Addition and Elm Street (south

13/ See Defendants' Exhibit No. 6.
14/ For example, the 211 black homes in Gale Street area (northeast 

quadrant of town) are served by one 4" main that first passes 
through a white neighborhood with only 34 homes. The pressure 
atthe white homes is not affected by water use in the black neighborhood because the white homes are closer to the source o 
the water. On the other hand, use of water in the white homes 
will decrease the pressure at the black homes (R.64 ). Thesame is true for the white and black hemes west of the railroad 
tracks and north of Porter's Bayou (northwest quadrant)in the 
Reeder Addition.

-10-



of Mason Street) were without adequate fire protection because of 
the absence of fire hydrants (R. 350-51). On the basis of his 
standard for minimal fire protection, the western portion of the 
Gale Street area, a portion of the Boatwright Addition and the air-

15/field street are also inadequately served. No white neighborhood, 
however, had an insufficient number of hydrants on the basis of this 
standard (R. 68). Although the court below correctly noted that th" 
record does not conclusively establish that recent fire losses in tV. 
black neighborhoods were attributable to the inadequate placement cf 
hydrants or inadequate water pressure (R. 566) it is perhaps no 
coincidence that in the period of one year preceding the trial seven 
homes in the black areas were totally destroyed by fire, with the 
loss of one life (R. 65-66).

Thus, the undisputed facts document the inferiority of the 
municipal services and facilities enjoyed by the black residents of 
Shaw in contrast to those enjoyed by white residents. The record 
depicts a small town ghetto where black people are deprived of both 
the necessities and the amenities of municipal life. Although the 
black man has ostensibly been free for over one hundred years, the 
badges of slavery are still reflected in the way he is forced to 
live in Shaw.

Summary of the Argument

In the face of this proven disparity between the municipal ser
vices and facilities afforded to the black and the white residents
15/ The town engineer testified that at least two fire hydrants 

should be located within 500 feet of each house for adequate 
fire protection (R. 310, 350).

-11-



of Shaw, the court below found rational considerations that explain­
ed and justified the inequalities. It concluded that this "unequal 
treatment" did not violate the Equal Protection Clause of the 
Fourteenth Amendment because plaintiffs had not demonstrated that rt 
was "without any rational basis" (571). Thus, the court applied a 
standard for evaluating plaintiffs' equal protection claim, tradi­
tionally used in cases where fiscal and regulatory matters are at 
issue, whereby the challenged discrimination is upheld so long as it 
bears some national relationship to a legitimate state objective.
See McGowan v. Maryland, 366 U.S. 420, 425-26 (1961); Note, 
Developments in the Law -- Equal Protection, 82 Harv. L. Rev. 1065, 
1977-87 (1969. Indeed, it placed the burden on plaintiffs to show 
either that the unequal treatment had no reasonable basis or that 
its objective was invidious racial discrimination (R. 571).

We argue below that the court erred in its application of the 
standards of the Equal Protection Clause to this record. We contend 
that the unequal treatment of black persons as a class regardless of 
whether their classification for such treatment has been de jure or 
de facto, must be condemned unless an overriding governmental in­
terest justifies such treatment. McLaughlin v. Florida, 379 U. S. 
379 U. S. 184 (1964). In the face of the proven fact that the 
black residents of Shaw are receiving distinctly and systematically 
less advantageous treatment in the provision of municipal services 
than white residents, defendants are required to bear a very heavy 
burden of justification. The decision of the court below, therefore 
must be reversed because it condoned the unequal treatment of the

-12-



black residents of Shaw merely because plaintiffs had failed to show 
that the inequality was not based on any "rational considerations."

Since the record in this case clearly demonstrates, moreover, 
that there is no sufficiently compelling interest to justify the in­
feriority of the municipal services provided to the black residents, 
this Court should reverse and remand with directions to the district 
court to consider the appropriate relief to remedy the violation of 
the plaintiffs' right to the equal protection of the laws.

I

The Court Below Erred In Failing To Apply 
A Strict Standard Of Review Under The 
Eaual Protection Clause In The Face Of 
Plaintiffs' Showing Of A De Facto Racial 
Classification In The Provision Of Municipal 
Services.

We begin with the proposition that a law which classifies per­
sons by race "even though enacted pursuant to a valid state interest., 
bears a heavy burden of justification, . . . and will be upheld only 
if it is necessary, and not merely rationally related, to the accom­
plishment of a permissible state policy." McLaughlin v. Florida,
379 U. S. 184, 196 (1964). While a demonstration of a possible 
rational foundation is sufficient under the Equal Protection Clause 
to support a distinction not drawn according to race, e.g., where 
taxation or economic regulation is involved, courts have required 
that racial distinctions be supported by more than a mere rational 
connection to a legitimate public purpose. See Loving v. Virginia,

-13-



388 U. S. 1, 8-9 (1967). This is so because:
. . .  a classification based upon the 
race of the participants . . . must 
be viewed in light of the historical 
fact that the central purpose of the 
Fourteenth Amendment was to eliminate 
racial discrimination emanating from 
official sources in the states. This 
strong policy renders racial classifi­
cations "constitutionally suspect,"
Bolling v. Sharpe, 347 U. S. 497, 499; 
and subject to the "most rigid scrutiny,"
Korematsu v. United States, 323 U. S.
214, 216; and "in most circumstances 
irrelevant" to any constitutionally 
acceptable legislative purpose,
Hirabayashi v. United States, 320 U. S.
81, 100. McLaughlin v. Florida, supra 
at 191-92.

Although the court below acknowledged that such a strict standar: 
of review was applicable where racial classifications were involved 
(R. 570), it avoided its application in the present case by conclud­
ing that no racial classifications had been shown to exist with 
respect to the provision of municipal services to the residents of 
Shaw. The court said:

Plaintiffs have compiled certain statistics 
which they claim support a charge that de­
fendants and their predecessors in office 
have racially classified the black and white 
neighborhoods by providing better or more 
complete facilities to the latter neighbor­
hoods, but they would ignore all legitimate 
deductions to be made from the evidence 
running counter to statistical racial dis­
parity. But we do not understand that a 
court may adopt that manner of reasoning.
If actions of public officials are shown to 
have rested upon rational considerations, 
irrespective of race or poverty, they are 
not within the condemnation of the Fourteenth 
Amendment, and may not be properly condemned 
upon judicial review. Persons or groups who

-14-



are treated differently must be shown to be 
similarly situated and their unequal treat­
ment demonstrated to be without any rational 
basis or based upon an invidious factor such 
as race (R. 570-71) (emphasis added*)"!

In evaluating plaintiffs' equal protection claim the district 
court was apparently applying a two step analysis: first determine
whether defendants had "racially classified the black and white 
neighborhoods" and then, only if a racial classification had been 
shown, determine whether the racial classification can withstand the 
"strict scrutiny" required by the Equal Protection Clause. But in the 
present case the court never reached the second step. After the court 
made "all legitimate deductions . . . from the evidence running counter 
t;o statistical racial disparity, " it concluded simply that they "nega­
tive plaintiffs' assertions of racial and economic discrimination"
(R. 573).

The court's error is plain. In effect, the district court equated 
"racial classification" and "racial discrimination." Its analysis in­
dicates that it thought that plaintiffs must show that defendants 
intended to treat the black residents differently as a class in order 
to establish the existence of a "racial classification." When the sep­
arate treatment was explained by rational considerations, other than 
race, it followed, according to the district court, that there had 
been no racial classification. And without any racial classification 
it further followed that there had been no racial discrimination. Thus, 
as a result of this tortuous reasoning the court reviewed the undis­
puted evidence that the black residents of Shaw had systematically re­
ceived municipal services that were distinctly inferior to those

-15-



provided to the white residents under the traditional standard where 
government action is upheld unless shown to be without any rational 
basis instead of under the strict standard applicable where racial 
classifications are involved.

Such an analysis misconstrues completely the review of 
"suspect classifications" mandated by the Equal Protection Clause.
For by placing an initial burden on plaintiffs to establish an in­
tentional differential treatment of the races by defendants, the courti 
c.eriously limits the utility of the strict standard of review. Under 
this reasoning the strict standard would apply only where the racial 
classification is made explicit, as on the face of a statute, or 
where the plaintiffs are able to meet a difficult burden of either 
proving intent affirmatively or excluding all rational hypotheses 
other than race on which the evidence can be explained. Indeed, in 
such cases finding intentional differential treatment would be tan­
tamount to finding intentional racial discrimination and no further 
inquiry would be necessary.

A strict standard of review must be applied whenever govern­
mental action results, for whatever reason, in the isolation of a disad 
vantaged racial minority for differential treatment. Jackson v.
Godwin, 400 F.2d 529 (5th Cir. 1968); Hobson v. Hansen. 269 F. 
gupp. 401 (D.C. Cir. 1968), aff'd sub nom. Smuck v. Hansen. 40e F.2d 
175 (D.C. Cir. 1969). In such cases, the Equal Protection Clause 
commands the use of the more stringent standard both because of the

-16-



that the differential treatment is a product of invidious 
racial discrimination and because the differential treatment, in 
itself, is perceived as a "stigma of inferiority and a badge of 
opprobrium" by the affected class. See Developments In The Law —  
Egual Protection. 82 Harv. L. Rev. 1065, 1127 (1969). A de facto 
racial classification is just as much evidence of forbidden racial 
motivation and the resulting social evil is just as great as when 
the classification is established by law. And it cannot be permittee 
to continue unless the government has a compelling justification for 
the inequality.

Thus, the Supreme Court has condemned racial discrimination 
"whether accomplished ingeniously or ingenuously." Smith v. Texas. 
311 U. S. 128, 132 (1940). And echoing this principle. Judge Skelly 
Wright recently wrote:

Whatever the law was once, it is a testament 
to our maturing concept of equality that, 
with the help of Supreme Court decisions in 
the last decade, we now firmly recognize 
that the arbitrary quality of thoughtless­
ness can be as disastrous and unfair to 
private rights and the public interest as 
the perversity of a willful scheme. . . .
[T]he element of deliberate discrimination 
is - - . not one of the requisites of an equal protection violation; and given the 
high standards which pertain when racial 
minorities . . . are denied [equality] . . . 
justification must be in terms . . .  of pos­
itive social interests protected or advanced.Hobson v. Hansen, supra. 269 F. Supp. at 497-98.

It is the effect of governmental action on racial minorities, 
therefore, rather than its actuating motive or intent, that is rel­
evant for the purpose of the Equal Protection Clause. With respect

-17-



to voting rights, for example, the Supreme Court has invalidated 
apportionment schemes that "designedly or otherwise" operate to min­
imize the voting strength of a racial minority. Fortgon v. Dorsey, 
379 U. S. 433, 439 (1965); see Chavis v. Whitcomb, 305 F. Supp. 1364 
(S.D. Ind. 1969) (three judge court). Both this Court and the 
Second Circuit have held that even in the absence of intentional dis 
crimination, the action of public officials which disproportionately 
disadvantages racial minorities constitutes a violation of the Equa 
Protection Clause. Arrington v. City of__Fairfield, 414 F.2d 687 
(5th Cir. 1969); Norwalk CORE v. Norwalk Redevelopment Agency, 395 
F.2d 920 (2d Cir. 1968). And even more recently the Ninth Circuit 
recognized that the repeal of a rezoning ordinance which resulted in 
the denial of decent housing and an integrated environment to the 
low-income, minority group residents of a city might constitute a 
denial of the equal protection of the laws, regardless of the motive
for the reoeal. Southern Almeda Spanish Speaking Organization v.

f*
Union City, No. 25,195 (9th Cir. Mar. 16, 1970).

The court below erred in believing that there has to be an ele­
ment of intent, deliberateness or actual discrimination in the 
creation of a racial classification. Rather, as the decisions of th_ 
Court have established, what triggers a strict standard of review is 
the existence of a disparity between the treatment accorded to a dis­
advantaged racial group and that accorded to others, regardless of 
motive or intent. Accordingly, in the absence of an overriding jus­
tification, rules and regulations which are nondiscriminatory on 
their face bur which in practice and effect impose a heavier burden

-’18-



on black people than on whites have been condemned. In Jackson v. 
Godwin. 400 F.2d 529 (5th Cir. 1968), this Court concluded that even- 
handed, non-arbitrary enforcement of prison newspaper and magazine 
regulations that had the effect of imposing far greater restrictions 
on the reading materials allowed to black prisoners than to white 
prisoners nevertheless violated the Equal Protection Clause, when the 
prison officials could offer no compelling justification for their 
policies. And in Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962), a 
state institution's facially neutral admission requirement that appli 
cants furnish recommendations from alumni was invalidated because of 
its effective exclusion of black students. See also Hawkins v. North 
Carolina Dental Society. 355 F.2d 718 (4th Cir. 1966); Cypress v. 
Newport News General and Nonsectarian Hospital Ass'n., 375 F.2d 648 
(4th Cir. 1967).

Even more pertinent to the present case are the cases which 
have struck down de facto racial classifications that have resulted 
only from official administrative action over a long period of time.
In the classic case of Yick Wo v. Hopkins. 118 U. S. 356 (1886), the 
Supreme Court held that the unexplained evidence that only Chinese 
laundrymen had been denied permission to operate laundries in wooden 
buildings while white persons had been granted permission established 
a violation of the Equal Protection Clause. Long continued dispari­
ties between the proportion of black people on juries and their pro­
portion of the population have long been held to constitute a racial 
classification which, when not explained or sufficiently justified, 
violates equal protection. Smith v. Texas. 311 U. S. 128, 132 (1940);

-19-



Coleman v. Alabama, 389 U. S. 22, 23 (1967); Brooks v. Beto, 366 F.2d
1# 12-13 (5th Cir. en banc 1966); cf. Swain v. Alabama. 380 U. S. 202 
(1965). And Hobson v. Hansen, supra, held that a pattern of de facto 
school segregation brought about by a series of facially nondiscrim- 
inatory school board policies came "freighted with a 'heavy burden of 
justification.' " 269 F. Supp. at 506.

The question in the present case, then, is whether defendants' 
actions have resulted in such a racial classification of the black 
and white residents of Shaw with respect to the level of municipal 
services provided. As pointed out above, it matters not whether the 
disadvantageous treatment of black residents as a class was accom­
plished "ingeniously or ingenuously" —  through the "perversity of a 
willful scheme" or as a result of the "arbitrary quality of thought­
lessness." If there has been de facto unequal treatment of the black 
residents in Shaw, then the actions of defendants that resulted in 
such treatment must be subjected to a searching review. It is our 
contention that the record in the present case clearly establishes 
the existence of such a de facto racial classification in the provi­
sion of municipal services and that the court below committed rever­
sible error in sanctioning the unequal treatment of the black resident 
without requiring defendants to meet their "heavy burden of justifi­
cation." McLaughlin v. Florida, supra.

As we detailed above in the Statement of Facts, the level of 
every municipal service provided to the black residents of Shaw is 
inferior to the level of these services provided to the white resi­
dents. This is true of street paving, surface water drainage, street

-20-



lighting, traffic control, sanitary sewerage, water supply and the 
placement of fire hydrants.

The disparity in each case is substantial: 98% of the white
residents of Shaw live on paved streets as compared to only 42% of 
the black residents? virtually all of the white residential areas 
are served by underground storm sewers or well-maintained drainage 
ditches in contrast to a primitive, uncontinuous system that does 
not serve most of the streets in the black neighborhoods? over 75% of 
the street lights in the white neighborhoods are modern mercury vapor 
fixtures as compared to only old bare bulb fixtures in the black 
neighborhoods? almost every intersection of streets in white neigh­
borhoods is governed by traffic control signs as compared to none in 
the black neighborhoods? only two white homes are unserved by sani­
tary sewers as compared to almost 20% of the black homes which are 
without sanitary sewerage? at least 63% of the black residents live 
in areas where the water supply is inadequate while all white resi­
dents are adequately served? and many parts of the black neighborhoods 
but no parts of white neighborhoods are inadequately protected by 
fire hydrants.

In each case, moveover, the disparities have existed over a 
long period of time. As of 1948, 96% of the white residents of Shaw 
lived on paved streets while only 3% of black residents lived on pavec 
streets. In 1956, 98% of the white residents lived on paved 

streets while less than 20% of the black residents had paved streets. 
And in 1967, when this suit was filed over 70% of the black residents 
still lived on unpaved streets. All of the white residents of town

-21-



have been served by water mains at least since 1950, but the black
residents of the Promised Land addition, the Reeder Addition and the
eastern part of the Gale Street area were not supplied with water

lb/until 1957 and 1961. In 1965 when the sanitary sewerage system
was installed at least one-third of the black community was unserved 
while all but two white residents were served. And the black neigh­
borhoods have neverhad any mercury vapor lights since they first began 
to be installed in 1962 (R. 515).

Such long continued, substantial disparities between the level 
of municipal services provided to the black and white residents of 
Shaw clearly establishes a de facto racial classification. United 
States ex rel Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962); see 
Gomillion v. Lightfoot. 364 U. S. 339 (1960); Patton v. Mississippi, 
332 U. S. 463 (1947). And in the face of such a classification the 
court below should have required the defendants to show compelling or 
overriding interests which justified the unequal treatment of blacks. 
Instead of placing this heavy burden on defendants, the court placed 
the burden on plaintiffs to demonstrate that the unequal treatment 
was "without any rational basis or based upon an invidious factor 
such as race" (R. 571). This was error. The court should have eval­
uated evidence in light of the stringent standard commanded by the 
Equal Protection Clause when a "suspect" racial classification has 
been established instead of under a traditional standard which pre­
sumes the regularity of official action.

16  ̂ See p. 42 , below.

-22-



We show in Point II, below, that the record does not disclose 
any sufficiently compelling justification by which defendants' unequal 
treatment of the black residents of Shaw can escape condemnation undex 
the Equal Protection Clause. Suffice it to point out here that the 
district court's judgment should be reversed if only because it ap­
plied an incorrect standard of law to the evidence. The standard it 
did apply would completely undermine the rule requiring courts to 
strictly scrutinize "suspect" classifications. Its decision substan­
tially dulls the Equal Protection Clause "as the cu.tting edge of our 
expanding constitutional liberty," Hobson v. Hansen, supra, 269 P. 
Supp. at 493, and seriously weakens the constitutional protections 
against racial discrimination.

-23-



II

Defendants Have Failed To Meet Their 
Heavy Burden of Justifying Their 
Denial To The Black Residents Of Shaw 
Of Equality In The Provision Of 
Municipal Services And Facilities; And 
Plaintiffs ~Are Entitled To Injunctive 
Relief.

Although this case might appropriately be reversed and 
remanded to the district court for the purpose of making findings 
cf fact in light of the correct standard of law, this Court can and 
should, on the basis of the undisputed facts in the record, hold 
that plaintiffs have been denied their right to the equal protection 
of the laws and direct the district court to grant them injunctive 
relief. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); Phited 
States v. Richberg. 398 F.2d 523 (5th Cir. 1968). It is manifest 
that defendants have not met their heavy burden of justifying the 
inferior municipal services provided to the black residents of Shaw.

They have not met this burden in two respects. First, they 
failed to show that the disparities in the provision of services 
were the result of the even-handed application of rational policies. 
If such policies had in fact been adopted by defendants, they were 
administered arbitrarily to the detriment of the town's black 
residents. Secondly, those policies which were non-arbitrarily 
administered but which in practice and effect disadvantaged black 
residents did not serve any compelling governmental interest.

In general, defendants contended that the priorities for the 
provision of municipal services to the residents of the town were

-24-



determined on the basis of either the need that existed for the 
particular service or the feasibility of providing the service.
Thus, they argued that wherever the needs were the same the same 
levels of services were provided, except where it was not feasible 
or impossible to provide the service. Although the provision of 
municipal services to residents of a town on the basis of need and 
feasibility may well be such compelling governmental interests to 
justify a racial disparity, we establish below that in the 
present case such standards were clearly not applied in an even- 
handed manner and that, in any case, the explanations that were 
advanced as justifications for the disparities were not sufficiently 
compelling.

A. Street Paving
The district court concluded that as a result of the "cautious

fiscal policy" that dominated the town until 1955 none of the
"residential streets in white or black neighborhoods [were]
asphalted except those forming a state highway, or fronting upon
commercial or industrial enterprises, or serving school or other
public buildings" (R. 571). The evidence, however, is otherwise.
In 1956 when the first residential streets in black neighborhoods
were paved, 96% of the white residents of Shaw lived on paved streets.

IS/most of which had been paved during the 1930’s. The paving of

i f-J See Appendix C ., below. The only streets in the white neigh­
borhoods that were unpaved in 1956 were Baronet, Elm (from the 
intersection with Alexander north until the end of the present pave­
ment) , Faison (for one block south of Jefferson Street), Ellwood (from New West to the cemetery), the alley adjacent to the cemetery, 
Doran, and Jackson Street extended (north of Porter's Bayou). There 
are only XL white homes that front on all of these streets.

-25-



these streets cannot be explained solely on the basis of their

relationship to highways, to commercial or industrial enterprises,
to schools or to other public buildings. For many were solely
residential streets that did not even arguably serve commercial,
industrial or any public buildings. Such streets were: Jackson
Street, Jefferson Blvd., School Street (streetimmediately east of

17/the school), Faison Street, Dean Blvd. (east of route 61), Bolivar
Street, Walker Street, Mason Avenue, Stephens Street, New West18/
Street, Grant Street, Alexander Street, Bayou Street and Gale Street 
(from Bayou Street to the Silver Bayou). It is apparent that these 
streets did not serve a "great majority of the town's inhabitants" 
and were not "heavily traveled streets."

On the other hand, the streets in the black neighborhoods 
that did have special functions remained unpaved prior to 1956. 
Although Gale Street and White Oak Street were part of the old 
U. S. highv;ay 61 (R. 239), the sections of these streets that ran 
through black neighborhoods were not paved until 1956. While all 
of the streets serving and surrounding the white school were paved 
long prior to 1956, the streets serving the school black children

17/ Although School Street, Faison Street and part of Jefferson 
Street are all adjacent to the property on which the school is 
located, it is clear that they all do not carry a significant 
amount of school traffic.
18/ The factory at the intersection at Grant and New West Streets 
was not constructed until 1962 (R. 507-08).

-26-



attended (White Oak and Bethlehem Streets) were also unpaved until
1 q/1956. And although the decision to pave Ellwood Street west of 

New West Street and the adjacent alley was explained on the ground 
that it served the white cemetery, defendants have never paved 
Issaquena Street which serves the black cemetery (R. 318-19).
Thus, if the use of streets as highways and their relationship to 
commercial, industrial or public buildings were the factors which 
determined the paving of streets prior to 1955, these standards 
were applied arbitrarily to the detriment of the black neighbor­
hoods .

The overall conclusion of the district court that street 
paving has usually been based upon "general usage, traffic needs, 
adequate rights of way and other objective criteria" (R. 572) is 
also refuted by the record. Indeed, the town engineer who made 
recommendations to defendants as to the priority of street paving 
projects testified that he had never surveyed the town to deter­
mine which streets were used the most (R. 315) or compared the 
usage of streets in black neighborhoods with the usage of those 
in white neighborhoods (R. 316). He admitted that he was not even 
familiar with the usage of streets in the Promised Land Addition, 
one of the oldest and largest black neighborhoods in town (R. 323). 
In fact, he recognized that a usage criterion had not been applied 
consistently in the decisions as to which streets to pave (R. 320- 
23) .

19/ The black school occupied the building which is presently the 
site of the head start center at the corner of Bethlehem and 
Canaan Streets.

-27-



The actual paving that was done reinforces the conclusion 
that usage was not a determinative factor. The evidence of greater 
density of housing and consequently greater intensity of use on
local streets in black neighborhoods was not challenged by defend-

20/
ants (R. 43-44). Yet, all but seven white homes (3 of which were 
constructed only recently (R. 40))front on unpaved streets while 
almost 60% of the black residents live on unpaved streets. Many 
white residential streets, moreover, are paved even though there 
is a minimal amount of traffic on them. For example, Jackson Street 
extended (north of Porter's Bayou —  sometimes referred to as 
Baker Street) has only one house, Ellwood Street has only one house. 
Mason Avenue is an alley with no houses fronting on it, Walker 
Street has two houses, and Baronet Street has one house.

The other explanations that the district court accepted to 
justify the disparity in street paving were based on the unfeasi­
bility of paving streets in black neighborhoods. According to the 
court, the unpaved streets in the Reeder Addition and in the Gale 
Street area (Johnson Addition) on which approximately 30% of the 
black population live were too narrow to permit paving without 
acquiring additional rights of way from abutting property owners 
(R. 563, fn. 5). It apparently based this conclusion on the testi­
mony of the Mayor and the town engineer as to their adherence to a

20/ See Plaintiffs' Exhibit No. 2.
21/ See Appendix b .
22/ See Plaintiffs' Exhibit No. 2, pp. 2, 4.

-28-



nondiscriminatory policy of not paving streets that were too 
narrow to pave (R. 243, 335). The engineer testified that streets 
in black neighborhoods had not been paved because they did not have 
the 50 foot right-of-way that he considered necessary in order to 
construct an adequate street (R. 285). But if this objective 
standard was ever actually a policy of the town, it is plain that 
it was never enforced in any neighborhood, black or white. On the 
basis of the 50 foot minimum right of way, there are only sixteen
streets in the entire town that have platted rights of way of 50

23/feet or more. Most of the streets, in both black and white neigh-
2A/borhoods, have platted rights of way that range from 30 to 40 feet.

A comparison of the "narrow" dedicated rights of way in white 
neighborhoods that the town has paved with the "narrow" dedicated 
rights of way in black neighborhoods that the town has not paved 
clearly reveals the hollowness of defendants' claim that the width 
of rights of way was an objective factor governing paving priori­
ties :

23/ They are Jefferson Blvd. (50‘), Dean Blvd. (50'-60'), part of 
Jackson Street (70*), Gibert Street (60'), School Street (70'), 
Baronet Street (70’), Stephens Street (50'), Main Street (50*), 
part of Faison Street (100*), Buckhalter Street (50'), Cleveland 
Street (50'), Kelly Street (50*), Lipe Street (50'), Cohea Street 
(50'), Lincoln Avenue (50*) and Douglas Avenue (50'). The last seven streets are located in black neighborhoods and three of them 
are unpaved.
24/ See Defendants' Exhibit No. 4.

-29-



Dedicated
Paved White Right of Dedicated Right
Street Way (in ft.) Unpaved Black St. of Wav (in ft.)

Walker St. 30 Canall St. 30
Mason Ave. 30 Johnson Ave. 30
Ellwood St. 40 Boatwright St. 40
Grant St. 40 South St. 40
New West St. 40 Dorsey St. 40
Doran St. 25 Ricks St. 30
Jackson St. 
Fxtended 
(oet. Doran and Bayou) 25 Scott St. (west 

of Gale) 30
Alexander St. 30-35 Issaquena St. 32

In addition, the defendants have paved the alley running between 
Ellwood Street and Front Street, adjacent to the white cemetery, 
which has a dedicated right-of-way of less than 20 feet. On the 
other hand, Douglas and Lincoln Avenues in the Promised Land
Addition have dedicated rights-of-wav of 50 feet and have never

25/
been paved.

It is painfully evident, therefore, that the width of streets, 
in Shaw had little or no effect on the decision as to which streets 
to pave. If anything, the 50 foot wide right-of-way criterion was 
honored more in its breach than in its enforcement. It does not 
provide even the slightest justification for the disparities in 
paving between the white and black neighborhoods. Even if there

25/ See Defendants' Exhibit No. 4.

-30-



were a need in certain cases to acquire additional rights-of-way 
in order to make paving of black streets feasible, moreover, the 
added difficulty in making such acquisitions is not a compelling 
justification for the failure of defendants to pave streets in 
black neighborhoods for decades. In fact, the testimony showed 
that it '’as not any difficulty in acquiring additional rights of 
way that prevented the town from doing so. Rather, the town had 
never made any efforts either to acquire them or to determine 
whether or not they had been acquired by prescription or adverse

23/possession (R. 337-340).
Several other purported justifications for the disparity in 

the extent of paving in the black and white neighborhoods can be 
briefly disposed of. The court concluded that the streets in the 
Promised Land Addition, some of which are among the widest in town, 
"have not been paved because of the necessity for first installing 
new water mains cn the rights of way" (R. 563, fn.5). But the fact 
that in 1969 the town decided to install new water mains next to 
unpaved streets does not explain or justify its failure to pave

26/ For example, the official town map shows the dedicated right 
of way of Bryant Street (Elm Street extended north of Porter s Bayou) to be 20 feet wide from Alexander Street to the city limits. 
The evidence shows, however, that this street has been maintame by the town as an actual street for as long as anyone could recall 
with a road bed of 15-16 feet wide and an apparent right of way 
(including drainage) of 25 feet. This street is paved in front of 
white homes from Alexander Street to Clinton Street where the road­
bed is 15 feet wide but is unpaved north of Clinton Street where 
the roadbed is 3.6 feet wide but which is in a black neighborhood 
(R. 326-27; see Plaintiffs* Exhibit No. 3).

-31-



these streets for the preceding twenty or thirty years (R. 324).
The court also explained the resurfacing of streets in white neigh­
borhoods in 1966 at a time when over 70% of the streets in black 
neighborhoods were unpaved on the basis of the need, for proper 
maintenance, to resurface streets every five years (R. 563, 286). 
But the evidence shows that none of the streets in town have ever
been resurfaced within five or six years from the time they were28/
first paved. Instead, the white residential streets that were
resurfaced in 1966 and 1967 had been paved either in 1943 or 1956.
Oily one black residential street that had been paved in 1956 has
ever been resurfaced (R. 319-20). With only a few exceptions,
moreover, the streets in white neighborhoods that were resurfaced

29/in 1966 ana 1967 were not "heavily traveled downtown streets."
It is apparent, therefore, that there was no overriding need to
resurface v/hite residential streets before paving black streets30/for the first time.

27/

21/ The court might appropriately consider the need to install 
water mains prior to paving streets in determining the relief to 
whicn plaintiffs are entitled. Thus, the court might require 
defendants to equalize water supply facilities before paving the streets.
_2§/ See Defendants' Exhibit No. 4.
—3/ Only Holly, Gibert and part of Dean Streets which were resur­
faced in 1967, are arguably heavily traveled residential streets 
located in the cowntoyn area. The remainder of the white streets 
that were resurfaced in these two years are clearly local, residen­tial streets, i.e., Bolivar, Dean (east of Route 61), Jefferson 
School, Jackson, Baronet, Faison, Grant, New West, Ellwood and Cemetery Alley. See Defendants' Exhibit No. 4.
IS/ The engineer's testimony that some streets that had not been 
resurfaced for 13 years were still in "fairly good shape" further 
demonstrates that the resurfacing of these white streets could have waited several years at the least (R. 331).

-32-



B. Furface Water Drainage
There was no dispute that both bayous that flow through Shaw 

are inadequate to accommodate the surface water drainage after large 
rains and are subject to periodic overflowing (R. 136-37, 227, 306- 
07). But neither was there any dispute that the town has dealt 
unequally with the drainage problem in the white and black neigh­
borhoods (R. 115) . VThereas the white neighborhoods have been pro­
vided with either underground storm sewers (a system where water 
drains through catch basins alongside the streets into underground 
sewer mains which channel it into Porter's Bayou) or a continuous 
system of well-maintained drainage ditches which channel surface 
water into the underground system or directly into the bayou (R. 54- 
57), the black neighborhoods have been provided with, at best, a 
primitive, virtually nonfunctional system of poorly maintained 
drainage ditches or, on many streets,no ditches at all (R. 51-54).

The results of this disparity in the efforts to improve drain­
age conditions is that in the black neighborhoods surface water 
remains on streets and in yards, turning them into mud and making 
the passage of people and vehicles difficult and hazardous (R. 53). 
Where there are no sanitary sewers raw sewerage also accumulates 
with the surface water and constitutes a serious health hazard 
(R. 53, 59). On the other hand, despite occasional overflowing of 
Porter's Bayou and an area on the school property at the corner of 
Dean Blvd. and Faison Street where drainage is poor, water drains 
much more rapidly from the white neighborhoods and the streets 
remain passable in all weather (R. 56). Although a heavy rain

-33-



might cause overflowing of both bayous, it was clear frcm observation 
that considerably less rain is necessary to produce hazardous and 
inconvenient conditions in the black areas because of the inferiorA /
drainage facilities and the unpaved streets^ Finally, defendants' 
engineer admitted that the existence of a system of functional
drainage ditches would improve the conditions of the areas presently 
without them (R. 344-45).

Thus, the existence of a problem that is common to both the 
white and black neighborhoods of town cannot provide defendants
with any justification for their unequal efforts in providing a 
solution.

C- Street Lighting
Although the court recognised that mercury vapor street lights 

had been installed in white residential areas and only bare bulb 
fixtures were in use in black areas, it nevertheless accepted 
defendants' explanation that the "brighter lights are provided for

J ^ r t e r N  tovouN N N bJS?®  j n . th e  w h ite  a r e a s  o f  a d ja c e n t to

™ Thto -  d r a in in g  t ^ N h i t e  N e ig h b o rh o o d s ^ S i S S N i X ^ * * 17
S : - bT  - -  on̂ ^Ln°I
without- !*you* Because water frcm the unpaved and ungraded areas
Porter's Bavo^via Silveriavou^he ‘l*?3 l0nger t0 drain into n-e i-urs „ t. • V1“ . iVer Bayou, the white areas eniov the benefit

?romet S P™ ltY °t Porter:s Bayou to accommodate the ?apid ditches. P V€Q streets with underground sewers and drainage

-34-



those streets forming either a state highway, or serving commercial, 
industrial or special schools needs, or otherwise carrying the 
heaviest traffic load" (R. 563). Again, a review of the record 
makes clear that if these alleged objective standards for the 
allocation of street lighting v/ere used, they were not applied 
equally for the benefit of both black and white citizens.

The state highway that the court concluded justified the 
brighter lighting is Front Street, which runs from east to west 
through the town along the south bank of Porter's Bayou. That the 
intensive lighting along this street is unrelated to its traffic 
load is evident from the fact that Bayou Street, which runs along 
the north bank of Porter's Bayou and is not part of any highway 
and is not even a through street, is just as intensively lit.
Indeed, on the approximately 1700 foot stretch of Front Street 
from Route 61 to Gale Street there are many more lights than on the 
remaining portion of Front Street (excluding the business district) 
or along the entire one mile length of the more heavily traveled 
Route 61 w'ithin the town limits. The mercury vapor lights on Front 
and Bayou Streets along this stretch of Porter's Bayou account for 
25% of all of the mercury vapor lights in town. Their obvious 
purpose is not to light a state highway but rather to light the 
Bayou and its parklike banks for the benefit of the white residents 
who live there.

22/ See Plaintiff's Exhibit No. 7.



The other explanations offered by defendants are equally 
unsubstantial. Although there is a factory at the intersection of 
the Grant and New West Streets, there is no apparent need for street 
lights since it does not operate at night or stimulate an unusual 
level of traffic (R. 90). Similarly, defendants would justify the 
superior lighting along Dean Boulevard on the basis of the commer­
cial and industrial areas at the corner of Dean and White Oak. But, 
if these industries ever operate at night it is only the period in 
the Fall when cotton is ginned (R. 92). Finally, the mercury vapor 
fixtures on parts of Dean Boulevard, Faison Street, Jefferson 
Boulevard and School Street are allegedly for the purpose of dis­
couraging vandalism at the white school and the use of streets as 
a lovers' lane (R. 236).

Even if we accept these explanations, the fact remains that 
the improved lighting benefits only the white residents of town.
And in such a case, the inequality must be supported by "compelling" 
rather than merely "rational" considerations. We submit that the 
beautification of the banks of Porter's Bayou, the nighttime 
traffic during ginning season, vandalism and a lovers' lane at the 
white school are not sufficiently compelling reasons to justify 
stigmatizing the entire black community of Shaw with old and 
inferior street lighting.

This is particularly true since these criteria were not 
uniformly applied in both black and white neighborhoods. If the 
intensity of street lighting were dependent upon the amount of 
traffic, then Gale Street, which is one of the most heavily

-36-



traveled streets in tovm since it provides the town's largest 
black neighborhood with access to the business district and is the 
shortest route from the business district to Cleveland, Mississippi, 
should be lit by mercury vapor fixtures instead of bare bulbs (R. 
72). Conversely, little traveled streets in white neighborhoods 
such as Bayou Street, Jefferson Boulevard, between Jackson and 
School Streets, part of Jackson Street, and part of Faison Street 
should not have the superior fixtures. Nor do the town's criteria 
explain why the new (1956) white Barney Chiz horseshoe subdivision 
at the southern corporate limits has new mercury vapor fixtures 
while the even newer Rebecca Addition (1968) (east of Route 61 in 
the northeast corner of the city (Cohea Street)) and Chiz's Silver
Bayou Subdivision (1968)(Kelly, Lipe and Rogers Streets) have bare

33/
bulb fixtures (R. 461, 505).

D. Traffic Control
The defendants did not offer, nor did the district court 

refer to any explanation to justify the proven absence of any 
traffic control signs in the black neighborhoods in contrast to 
the frequent placement of such signs in the white neighborhoods.

E. Sanitary Sewers
The court below found "rational considerations" that justified 

the absence of sanitary sewers for almost 20% of the black popula­
tion of Shaw. It concluded that:

33/ See Plaintiffs' Exhibit No. 7.

-37-



Part of the problem in reaching 
all older unserved areas has been 
the necessity for bringing this 
service into newer subdivisions 
developed for both races and 
brought into the town, as it is 
the town's firm policy to make 
sewer installations for all such 
new areas (R. 564),

In the first place, from the record of extensions to the
sanitary sewer system since its completion in 1965 there is no
discernible, no less a "firm", policy of making extension only
to newly developed areas. Instead, the system has been extended
to a greater number of older dwellings than to new ones. The
extensions in 1966-67 in the Promised Land Addition, one of the
town's oldest areas, served approximately 65 old homes while all
of the extensions to nev? areas have served only about 40 new

34/homes. The record shows that when the original sewer system was
15constructed a large part of the black population (over one-third) 

was not served. Since its completion, the system has been extended 
to some of the areas that were originally unserved as well as some 
newly developed areas. But the fact that the new extensions have 
benefited black as well as white residents does not excuse the

34/ Extensions of the sanitary sexier system in old neighborhoods 
were made to 67 homes in the Promised Land Addition and 5 homes on 
Mose and Railroads Avenues in the Gale Street area. Extentions in 
newly developed areas were made to 28 homes on Kelly and Lipe 
Streets, 4 homes in the Barney Chir* Horseshoe Subdivision, 3 homes 
on Dewitt Street and 6 homes on Cohea street (Rebecca Addition)
(R. 207-20S). See Defendants' Exhibit No. 5.
35/ See p. 9, notes 11, 12, above.

-38-



initial neglect of the unserved black neighborhoods. And a "firm 
policy" of making installations in new areas which has the effect 
of freezing in this inequality is not justified merely because 
there has been no racial discrimination in the new extensions.
As this Court has said, "a relationship otherwise rational may 
be insufficient in itself to meet constitutional standards —  if 
its effect is to freeze-in past discrimination." Henry v. 
Clarksdale School District. 409 F.2d 682,688 (5th Cir. 1969).

Furthermore, besides the slight indications in the record 
that this was in fact defendants' policy (R. 212-13, 394, 396), 
defendants never explained why they chose to prefer new residents 
or new homes over older neighborhoods that had already been by­
passed by the sewer system. Presumably, such a policy is based 
upon the town's desire to increase its tax base by encouraging the 
construction of new homes which might not be built if the town did 
not immediately supply municipal services such as sewers. But 
however reasonable such a policy would be in isolation, it cannot 
justify the perpetuation of the conditions that were built into 
the system by the original failure to serve large black neighbor­
hoods. Fiscal considerations alone do not represent a sufficiently 
compelling governmental interest to justify the denial of sanitary 
sewers to a substantial number of the black residents of Shaw. To 
paraphrase what the Supreme Court said in Shapiro v. Thompson. 394 
U.S. 618 (1969) about denying welfare benefits to new residents:

-39-



We recognize that a State has a valid 
interest in preserving the fiscal 
integrity of its programs. It may 
legitimately attempt to limit its 
expenditures, whether for public 
assistance, public education, or any 
other program. But a State may not 
accomplish such a purpose by invidious 
distinctions between classes of its citizens. . . .
[The state] must do more than show 
that denying [sanitary sewers] to 
[old] residents saves money. The 
saving of . . . costs cannot justify 
an otherv/ise invidious classification.Id. at 633.

The policy of extending sanitary sewerage facilities to 
newly developed areas is even less compelling in light of the 
town's enactment in 1967 of an ordinance that requires developers 
to provide sewerage lines in their subdivisions (R. 397, 474). 
Thus, the major part of the expense of extending sewers to new 
areas is borne by the subdivider and not by the town.

The court also concluded that:
While the complaint about less than 
100?6 sanitary sewerage for all resi­dences is certainly a real one, that 
condition arises basically from the fact 
that local law does not yet require indoor 
plumbing. The lack of sanitary sewers in 
certain areas of the town is not the 
result of racial discrimination in with­
holding a vital service; rather it is a 
consequence of not requiring through a 
proper housing code, certain minimal 
conditions for inhabited housing (R. 572).

The court apparently overlooked the ordinance of the town 
enacted on August 1, 1967 that requires [Section 3] all property 
owners whose property is located on a street where a sanitary

-40-



sewerage line has been laid to install indoor plumbing and to 
connect it to the sewer line. It also requires [Section 6] such 
installation and connection whenever new sewer lines or extensions

36/are provided (R. 485-36). Thus, it is not the absence of a proper
housing code that is responsible for the lack of sanitary sewerage
facilities in the black neighborhoods but rather it is the absence

22/of any sewer lines to which the property owners can connect.

F. Water Supply and Fire Hydrants
Defendants made no attempt to explain or justify the inadequacy 

of the town's water distribution system in two of the largest black 
neighborhoods in town, the Gale Street area and the Promised Land 
Addition. They say only that they are planning to improve the 
situation and have applied to the Uhited States Department of 
Housing and Urban Development for a grant that would help them do 
it (R. 221-22, 308-09). But the promise to remedy the inequalities 
brought about by past discrimination does not defeat plaintiffs' 
claim or their right to injunctive relief. As one court has said, 
"protestations of repentence and reform timed to anticipate or

that "he
36/ A copy of this ordinance, Exhibit D to Defendants' Answers 
to the Second Set of Interrogatories was admitted into evidence at 
R. 174.
37/ The court stated that the "great majority of the town's Negro 
residents is afforded sewerage facilities although many such resi­dences continue without indoor plumbing, not yet required by local 
law" (R. 564-65). There is no evidence in the record, however, of 
any residence that is not connected to an available sewer main.
On the contrary, the only homes without sanitary sev/erage are un­
served because there are no sewer mains on the street. (See R. 
207-215)

-41-



blunt the force of a lawsuit offer insufficient assurance" that the 
practice sought to be enjoined will not be repeated. Lank ford v. 
Gelston, 364 F.2d 197, 203 (4th Cir. 1966).

Nor does the record disclose any justification for the past 
and present inferiority of water supply in the black neighborhoods. 
Instead, the record reflects an historic neglect of the black 
neighborhoods. As with street paving, the town did not provide 
water mains to many of the black neighborhoods until the entire 
white population had first been served. Every white neighborhood 
in town was served after the installation of a main on Jefferson 
Boulevard in 1950 (R. 216-17, 510-11). Not until 1957, however, 
did a water main serve the Promised Land Addition and not until 
1961 did either the Reeder Addition or the entire eastern portion 
of the Gale Street area have water mains (R. 217-18, 513-14).

Priorities for the town's recent water main improvements have 
obviously not been established on the basis of need. At a time 
when defendants claim that the construction of 20-30 new homes in 
the Gale Street area (on Kelly and Lipe Streets) was taxing the 
4" water mains in that area, the town laid 2000 feet of a 6" water 
main to serve only the four new homes in the white Barney Chiz 
horseshoe subdivision on the south corporate limits (R. 219). If 
this 6" main had been used to supplement the inadequate mains in 
either the Promised Land or the Gale Street area, much of the 
water problem for hundreds of black residents could have been 
solved.

-42-



With respect to fire hydrants, the district court inexplicably 
concluded that "[f]ire hydrants are unremarkably located throughout 
the toT,m and are within reach of all of the town's improved portions” 
(R. 566). But although the testimony showed that the town's fire 
truck had enough hose to reach any house in town from a fire hydrant 
(R. 184), the town engineer testified that there were large parts 
of black neighborhoods that did not meet minimal standards of fire 
protection because they were not within 500 feet of each of two 
fire hydrants (R. 310, 349-51). Ke explicitly recognized the need 
for additional fire hydrants in the Promised Land Addition, the 
Reeder Addition and along south Elm Street (unpaved portion south 
of Mason Street)(R. 350-31). On the basis of these standards, 
moreover, the western portion of the Gale Street area (Railroad 
Avenue), southern portion of the Boatwright Addition (South Street), 
and the street running to the airfield west of Mason Street all 
have inadequate fire protection. Even the fire chief admitted that 
it would take longer for the fire department to fight fires in 
these areas which were without fire hydrants (R. 183-84). No white 
residential street in town, on the other hand, did not have adequate 
fire protection (R. 63).

* * * *
In the face of plaintiffs' showing that a de facto racial 

classification of the residents of Shaw exists with respect to the 
level of municipal services provided, the defendants have offered 
a variety of policies, standards and circumstances as explanations 
and justifications for the inferiority of the services in black 
neighborhoods. But here, ?n Jackson v. Godwin. 400 F.2d 529

-43-



(5th Cir. 1968), the
. . . officials have been arbitrary in the 
enforcement and application of . . . [their 
policies] . . . .  [T]he necessary effect 
and result of such [policies], even if not 
arbitrarily and though even-handedly en­
forced, is racial discrimination in viola­
tion of petitioners1 Fourteenth Amendment 
rights. It is also clear that the . . . 
officials have not met the heavy burden of 
justifying. . . the resulting racial dis­
crimination . . .  and denial of the equal 
enjoyment of rights and privileges afforded other, and white [persons]. Id. at 535,

As we have shown above, the record establishes that objective 
criteria such as need and feasibility, which might be considered to 
serve compelling governmental interests, rarely governed defendants' 
priorities in the provision of municipal services. And when they 
were actually used, they were not applied consistently in both 
black and white neighborhoods. Although the criteria might explain 
the level of certain services in white neighborhoods, the same 
criteria were obviously ignored when it came to the provision of 
the same services in the black neighborhoods. Not only, therefore, 
do these explanations provide insufficient justification for the 
disparities in services but they raise a particularly strong 
inference that the inequality was a produce of conscious racial 
discrimination.

Nor can other racially nondiscriminatory policies which re­
sulted in the creation or perpetuation of a differential in the 
level of service provided to the black and white residents suffi­
ciently justify such a differential. As we developed in Point I, 
above, the distinct and systematic disadvantageous treatment of a

-44-



class of black citizens vis-a-vis the treatment of white citizens 
can only be justified by a showing of a compelling interest. Thus, 
a court must balance the harm to black citizens stemming from 
sanctioning the "badge of slavery" that inferior municipal services 
undeniably represent against the social benefits of the challenged 
policy. See Developments in the Law —  Equal Protection. 82 Harv. 
L. Rev. 1065, 1103 (1969).

We submit that the interests advanced by defendants as justi­
fications for the inequalities in Shaw —  be they beautification of 
Porter's Bayou by high intensity lighting, the lighting of access 
routes to the cotton gin, or the provision of sanitary sewerage to 
new homes before old —  are not so compelling or important as to 
justify the perpetuation of an inferior quality of life for the 
black residents of Shaw. We have made it clear above that these 
objectives do not advance substantial community values. Rather 
the interests served are, by and large, those of the v/hite minority 
rather than those of the entire population.

This case, therefore, is like Jackson v. Godwin, supra. There, 
this Court held that nondiscriminatory newspaper and magazine 
regulations that had been promulgated by prison officials did not 
serve a sufficiently compelling interest to justify the resulting 
disadvantage to black prisoners. Even without a finding that there 
had been intentional racial discrimination in the enforcement of 
the regulations, this Court held that the black prisoners had been 
denied the equal protection of the laws. The Court said:

-45-



If every benefit of the doubt were given 
to the assertions of good faith by the 
officials, in order to find other than 
conscious racial discrimination, it is 
apparent that at least the posture of 
the prison officials in creating and ap­
plying the newspaper and magazine rules 
is one of a study in complete indifference 
to the interest of one-half of the prison 
population, namely the Negro half. Id. at 
535.

Similarly, even if the benefit of every doubt is given to 
defendants to avoid drawing the strong inferences of intentional 
racial discrimination, their administration of the Tovm of Shaw has 
nevertheless reflected a "complete indifference" to the interest of 
the black two-thirds of the population. Uhder the circumstances, 
this indifference —  the "arbitrary quality of thoughtlessness" —  
constitutes a violation of plaintiffs' rights to the equal protec­
tion of the law. As one court recently said, "if environmental 
benefits of land use planning are to be enjoyed by a city and the 
quality of life of its residents is accordingly to be improved, 
the poor [and minority groups] cannot be excluded from enjoyment 
of the benefits" Southern Almeda Spanish Speaking Organization v. 
Union City. No. 25,195 (9th Cir. Mar. 16, 1970) Slip Op. p. 8.

Plaintiffs are, therefore, entitled to injunctive relief that 
requires the equalization of the level of municipal services and 
facilities that are provided to the black and white residents of 
Shaw. What one court said about racial separation in schools is 
equally applicable here:

-46-



[I]f ' bites and Negroes . . . are to be 
consigned to separate schools, pursuant to whatever policy, the minimum the 
Constitution will require and guarantee 
is that for their objectively measurable 
aspects these schools be run on the basis 
of real equality, at least unless any 
inequalities are adequately justified.Hobson v. Hansen, 269 F. Supp. 403, 494 
(D.D.C. 1968).

Since defendants have failed to adequately justify the inequalities 
in municipal services, they are bound to equalise them.

There can be no real question as to the appropriateness of the/
✓

relief sought. As the Supreme Court said in Bell v. Hood, 327 U.S. 
678, 634 (1946), "where federally protected rights have been invaded, 
it has been the rule from the beginning that courts will be alert 
to adjust their remedies so as to grant the necessary relief." And 
this Court "has not hesitated to fashion judicial remedies to the 
realities to assure actual enjoyment of the constitutional ideals." 
Brooks v. Beto. 366 F.2d 1, 24 (5th Cir. en banc 1966). Especially 
where the right to equality is involved, courts have not hesitated 
to devise standards for enforcement. Baker v. Carr, 369 U.S. 186 
(1962); Reynolds v. Sims, 377 U.S. 533 (1963). They have required

__/ The court below denigrated its ability to afford appropriaterelief. It said:
. . . the nature of the relief sought by plaintiffs 
in their class action directly involves the exercise 
of administrative judgment in diverse areas of local 
government. This is a field in which courts should 
be reluctant to enter because of their incompetence, 
generally to bring about a better result than of­
ficials chosen by the local inhabitants (R. 573).

-47-



the equalization of municipal parks, Hadnott v. City of Prattville,,
38/No- 2886-N (M.D. Ala. Feb. 2, 1970), as well as the equalization of 

educational facilities. United States v. Jefferson County Board of 
Education. 330 F.2d 335, 393-94 (5th Cir. en banc 1967); Pitts v. 
Board of Trustees, 84 F. Supp. 975 (E.D. Ark. 1949). Their power to 
see that the job is done, furthermore, is not in doubt. Griffin v. 
School Board of Prince Edward County, 377 U.S. 218 (1964); see 
Board of Public Instruction of Duval Co. v. Braxton. 326 F.2d 616, 
620 (5th Cir. 1964); Gautreaux v. Chicago Housing Authority. 304 
F. Supp. 736 (N.D. 111. 1969).

Since the court below did not consider the question of relief,
this Court should remand the case to the district court for that

39/purpose alone. As in the area of school integration, it should be 
the initial responsibility of the defendants to submit a plan for 
the equalization of all municipal services and facilities in Shaw. 
After plaintiffs are afforded an opportunity to respond to the plan, 
the court should enter an appropriate decree.

33/ in this recent case, Judge Johnson ordered the city to equalize 
the "equipment, facilities and services" provided in a park located 
in a black neighborhood with those provided to parks located in 
white neighborhoods. The required equalization included "equipping 
an appropriate picnic area, constructing a community house and a 
floodlit ball park, with stadium, and complete maintenance."
39/ The district court suggested that because black citizens of 
Shaw have voting power approximately equal to that of white citizens 
(R. 234), plaintiff's remedy should be at the ballot box (R. 574).
But although the fact that the denial to plaintiffs of the equal 
protection of the laws may be cured through future action "may affect 
the relief which equity finally grants, [it] does not oust the court 
from its jurisdiction to declare the constitutional wrong." Hobson 
v. Hansen, supra, 269 F. Supp. at 498. See United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); Bailey v. Patterson. 363 F.2d 
201, 205 (5th Cir. 1963), cert, denied 376 U.S. 910 (1964>• Anderson 
v. City of Albany. 321 F.2o. 649 (5th Cir. 1963).

-48-



Ill

The Court Below Erred In Holding 
That Equitable Relief Against The 
Town of Shaw Was Not Available In 
A Saif. To Enjoin The Deprivation 
Of Plaintiffs' Right To The Equal 
Protection Of The Laws.

In its unreported Memorandum Opinion of July 12, 1968 (R# 404-09; 
the court below dismissed the complaint against the defendant Town of 
Shaw on the ground that injunctive relief was not available against a 
municipality in a suit brought under 42 U.S.C. § 1983. It relied en­
tirely upon the holding of Monroe v. Pape, 365 U. S. 167 (1960) that 
the City of Chicago was not a "person" within the meaning of § 1933 
insofar as that section authorized suits for damages. Since plain­
tiffs in the present case seek only injunctive relief against the
municipality, the Monroe holding is inapposite..' And although the

40/Supreme Court has never decided it, this Court and other Circuit 
Courts have uniformly held, implicitly and explicitly, that injunctive 
relief is available against a municipality under § 1983.

40/ In Monroe v. Pape, supra. 365 U. S. at 191, fn. 50 the Court said
In a few cases in which equitable relief has been sought, 
a municipality has been named, along with city officials, 
as defendant where violations of 42 U.S.C. § 1983, were 
alleged. See, e.g. Douglas v. City of Jeannette, 319 U.S. 
157; Holmes v. City of Atlanta, 350 U.S. 879. The ques­
tion dealt with in our opinion (whether a municipality is 
liable for damages under § 1983] was not raised in those 
cases, either by the parties or by the Court. Since we 
hold that a municipal corporation is not a "person" within 
the meaning of § 1983, no inference to the contrary can 
any longer be drawn from those cases.

This footnote should be taken as meaning only that previous deci­sions indicating that a municipality could be sued for injunotiv-

-49-



In Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961)* the 
Seventh Circuit concluded that Monroe v. Pape did not affect the pre­
vailing authority that injunctive relief against a municipal corpora­
tion was available under § 1983. The court there directed the entry 
of an injunction against a city restraining the enforcement of an or­
dinance. It stated:

The facts in Monroe v. Pape suggest several 
inherent reasons for excluding municipali­
ties from liability for damages, such as 
unauthorized misconduct of the officers, lack 
of power of city to indemnify plaintiffs for 
such misconduct, and a city's governmental 
immunity in the exercise of its police pow­
ers, from liability for injuries inflicted 
by policemen in the performance of their 
duties . . . None of these reasons which 
support a city's immunity from an action 
for damages for tortious injuries already 
inflicted by its officers, agents or ser­
vants applies to this case. No reason is 
apparent why a city and its officials should not be restrained from prospectively 
violating plaintiffs' constitutional rights 
pursuant to its own legislative enactment, 
and an injunction not be granted as provided 
in § 1983. Id. at 5C7.

This reasoning, recently reaffirmed in Schnell v. City of Chicago.
Al/ . ,407 F.2d 1084 (7th Cir. 1969), finds persuasive support in the

40/ (Cont'd)
relief could no longer support an inference that a damage action 
was also available. It is unlikely that the court intended by 
this mere footnote to overrule the prior cases and to foreclose 
injunctive relief as well as damages against a municipality.
See Judge Rives' dissenting opinion in Bailey v. Patterson, 199 F. 
Supp. 595, 615 (S.D. Miss. 1961) (three judge court), vacated 
369 U. S. 31 (1962).

41/ In this case it was held that the City of Chicago was liable under 
§ 1983 for injunctive relief to restrain the interference by its 
police with news gathering activities during the 1968 Democratic 
National Convention.

-50-



legislative history of § 1983 where the entire focus of the debate was
on whether municipalities should be subjected to liability for damages 
for violations of federal civil rights. Monroe v. Pape, supra. 365 
U. S. at 188-92. No mention was made nor was there any examination of 
the fundamentally different policy reasons for denying injunctive re­
lief. See Bivens v. Six Unknown Agents. 409 F.2d 718, 722-26 (2d Cir. 
1969).

This Court, moreover, has often suthorized the issuance of in­
junctions against municipalities and other political subdivisions in 
suits brought under § 1983 as well as under other similarly worded 
civil rights statutes. In Mavhue v. City of Plantation. 375 F.2d 447 
(5th Cir. 1967) the court recognized a distinction under § 1983 between 
damages and injunctive relief. While it held that the city should be 
enjoined from enforcing an unconstitutional ordinance, it rejected tho 
plaintiffs' claim for damages on the basis of Monroe v. Pape. Id. at 
451. In Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963) and

v* Page, 335 F.2d 114 (5th Cir. 1964), a municipality and its of­
ficers were enjoined from interfering with plaintiffs' constitutionally 
protected civil rights activities. See also Bailey v. Patterson. 323 
F.2d 201 (5th Cir. 1963), cert, denied. 376 U. S. 910 (1964). Finally, 
in United States v. Holmes County. 385 F.2d 145 (5th Cir. 1967) and 
United States v. McLeod. 385 F.2d 734 (5th Cir. 1967), it was held that 
a county was a "person" within the meaning of 42 U.S.C. § 1971(b) which 
authorizes injunctive relief to remedy interference with the right to 
vote. Indeed, in United States v. Holmes County, this Court said:

-51-



Since the word "person” includes a county 
under 42 U.S.C. <S 1983. we have no doubt 
that a “person" under 42 U.S.C. § 1971(b) 
also includes a county, since both were 
enacted with the aim of vindicating con­
stitutionally protected rights. Id. at 148 
(emphasis added).

See also United States v. Clark. 249 P. Supp. 720, 729 (S.D. Ala. 1965; 
and numerous cases granting injunctive relief against school boards 
under § 1983. E.£., Griffin v. County School Board of Prince Edward
County, 377 U. S. 218 (1964); McNeese v. Board of Education, 373 U. S.

42/
068 (1963).

Thus, the weight of authority clearly supports the inclusion of a 
municipality within the meaning of "person" under § 1983 for the pur­
pose of injunctive relief. The reasoning and the legislative history 
upon which the Supreme Court construed § 1983 to exclude the grant of 
damages against a municipality is inapplicable where injunctive relief 
is sought and that construction should not be used to deprive civil
rights' plaintiffs of effective relief against municipalities which

43/have violated their constitutional rights.
42/ The Ninth and Sixth Circuits have also implicitly recognized the right under § 1983 to injunctive relief against municipalities in 

SASSO v. City of Union. No. 25,195 (9th Cir. 3/25/70) and Raniel v 
City of Lansing. 417 F.2d 321 (6th Cir. 1969).

43/ Another reason why the reason why the court erred in dismissing th 
complaint against the Town of Shaw deserves mention. As Judge 
Rives pointed out in his dissent in Bailey v. Patterson. 199 F. 
Supp. 595 (S.D. Miss. 1961), vacated 369 U. S. 31 (1962), plain­
tiffs' claim against the defendant municipality does not depend 
alone upon § 1983. What he said is equally applicable to the 
present case:

The rights asserted here are based on the Constitution 
which itself creates the cause of action for equitable 
relief and, within the meaning of 28 U.S.C. § 1343(3)
(the jurisdictional provision upon which this suit is 
based) authorizes this suit. Id. at 615.

-52-



Conclusion
For the foregoing reasons, the judgment below should be reversed 

and this case remanded to the district court with directions to grant 
injunctive relief as prayed for by plaintiffs, in the alternative, 
the case should be remanded to the district court for the purpose of 
making findings in accordance with the correct standard of law.

Respectfully submitted.

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle 
New Yo.rk, New York 1C019

REUBEN V. ANDERSON 
M3LVYN LEVENTHAL

538*5 North Farish Street 
Jackson, Mississippi 39202

Attorneys for Plaintiffs- 
Appellants

-53-



Appendix A*

Black Residential Neighborhoods

Boundaries
Number % of 
of Black

Homes Population
1. Gale Street Area - Bounded on the north and 211 47%

east by the corporate limits; on the west by 
the railroad tracks; and on the south by the 
Silver Bayou. This area is sometimes refer­
red to as the Johnson Addition, and it con­
tains the Barney Chiz Silver Bayou Subdivi­
sion (Kelly and Lipe Streets) and the 
Rebecca Addition (Cohea Street).

2. Reeder Addition - Bounded on the north by the 
corporate limits; on the east by Silver Bayou; 
on the south Clinton Street; and on the west 
by Dorsey Street. This area is also referred 
to as the Bryant-Dorsey Area.

3. Boatwright Addition - Bounded on the north 
by Kentucky Street; on the east by Route 61; 
on the south by the corporate limits; and 
on the west by Jackson Street.

4. Promised Land Addition - Bounded on the north 
by the town maintenance yard; on the east by 
Issaquena Street; on the south by the corpor­
ate limits; and on the west by the railroad 
tracks. This area is also known as the 
Lincoln Addition.

38 8.5%

56 12%

74 16.5%

«

5. Cottonwood Area - This area includes Cotton- 58 13%
wood Street; Cherry Street (from Front to 
Mason); unnamed street running west from 
Mason to airfield; and Elm Street (south
of Mason). ______ ________Total 4 3 j 97%* **

* The information contained here is derived principally from Plain­
tiffs' Exhibit No. 1, the land use survey map of the Town of Shaw 
and Plaintiffs' Exhibit No. 2, a survey of all streets and housin'in Shaw.

** Fourteen black homes (3% of black population) are located outside 
of the above-described entirely black neighborhoods. They are lo­
cated as follows: Gibert Street 3; Doran Street (west of Gale) 5;Doran Street (east of Gale) 3; Unnamed Street between Doran and 
Bayou (east of Gale) 2; and Faison Street fsouth of Jefferson) 1

la



White Residential Neighborhoods

1.

2 .

3.

4.

5.

boundaries
Number
of
Homes

% of White

Bevou Street Area - Bounded on the north by 
Doran Street; on the east by Route 61; on 
the south by Porter's Bayou; and on the west 
by the railroad tracks.

34 15%

Alexander Area - This area consists of 
Alexander, Dewitt and Elm Streets.

20 8.5%

Cemetery Area - Bounded on the north by 
Porter's Bayou; on the east by Mason Street; 
on the south by Grant Street; and on the 
west by the cemetery.

56 24%

Mason Addition - Bounded on the north by Porter's Bayou; on the east by the corporate 
limits; on the south by fields; and on the 
west by White Oak Street. This is also re­
ferred to as the Dean Street Area and the 
A1sop-GarfieId Addition.

117 Sl%

Barney Chiz Horseshoe Subdivision - Horse- shoe-shaped street at the southern corporate 
limits.

4 1.5%

Total -221___ ■ ,100* —

2a



Appendix B*
Unpaved Streets In Black Neighborhoods**

Name Number of Homes
Gale Street Area

Shaw Street 14
Railroad Avenue 5
Johnson Street (west of Gale) 6
Johnson Street (east of Gale) 2
Canall Street (from Johnson to Gale) 9
Mose Avenue (east of Gale) 7
Mose Avenue (west of Gale) 4
Scott Street (west of Gale) 10
Wilson Street 10
Unnamed Street (from Railroad to 

Hamilton on north corporate 
limits) 6

Ricks Street 5
Cohea Street 8
Rogers Street (east of Route 61) 8

Reeder Addition
Dorsey Street (from Clinton to Towne) 7
Dorsey Street (from Towne to corporate

limits) 8
* This information is derived principally from Plaintiffs' Exhibit Nos. 1 and 2. **
**The housing fronting on all of these streets is occupied by blacks.

3a



Name Number of Homes
Reeder Street Addition (Cont'd)

Bryant Street, also referred to 
as Elm Street Extended (from 
Clinton to corporate limits) 17

Towne Street 0
Unnamed Street (between Bryant and

Dorsey perpendicular to Towne) 6
Boatwright Addition

Jackson Street (route of Woodlawn) 9
South Street 8
Boatwright Street 10

Promised Land Addition
Canaan Street 17
Lincoln Street 14
Douglas Avenue 4
Starkes Street 5
Manaway Street 6
Lacy Street 3
Issaquena Street 3
Unnamed Street (South of White Oak on

western corporate limits)* 7
Cottonwood Area

Unnamed Street (west of Mason to airfield) 12
Elm Street (south of Mason Street) 14

Total 251

* This is correctly indicated as being unpaved on Plaintiffs' F!.* hibit No. 2, p. 5.
4a



Unpaved Streets In White Neighborhood*

Race
Name Number of Homes of Occupants

Dewitt Street 3 White
Unnamed Street (between Baronet

and Faisen Streets) 3 White
Doran Street (west of Gale) 5 Black
Unnamed Street (between Doran and

Bayou Streets, west 
of Gale) Total*

2
-JL3___

Black

* 6 White 
7 Black

5a



Appendix C*
Paved Streets In Shaw

No. of Year
Name Race Houses Year Paved Resurfaced

Main Street Com.* ** 0 1930's (R.236) 1967
White Oak St. (from Front 
to Dean) Com. 0 1934 (R.236) 1967
Front Street w 47 1920's (R.237) 1930's (R.237T

1948
Faison Street (from 
Gibert to Dean) w 10 1934 (R. 236) 1948
Nolly Street w 4 1934 (R. 238)
Bayou Street w 22 1934 (R.236-37
Alexander Street w 14 1938 (R.238) 1967
Cherry St. (from 
Alexander to Front) w 0 1938 (R.237-38) 1968
Gale St. (from Porter’s 
Bayou to Silver Bayou) w 5 1930's (R.312) 1948

1966
Dean Blvd. (from Gibert 
to Route 61) w 32 1934 (R. 236) 1967
Dean Blvd. (from Route 
61 to corp. limits) w 6 1948 1966
Mason Street w 9 1948 (R.510)

B 14
Faison St. (from Dean 
to Jefferson) w 3 1948 1966
Gibert St. w 1 1948 1967

B 3
New West Street W 6 1948 (R.510) 1966

* This information is principally derived from the record and Defend­
ants' Exhibit No. 4. Where appropriate citations to the record are 
given.

**Commerical 6a



Paved Streets In Shaw

Race
NO. OfHouses Year Paved

Year
Resurfaced

Grant Street W 11 1948 (R.510) 1966
School Street (referred to 
as No Name Street - east 
of school)

W 5 1948 (R. 510) 1966 (R.462]

Walker Street W 2 1948 (R.510)
Stephens Street w 4 1948
Jackson Street (from Front
to .jean) w 3 1948 (R. 510) 1966
Bclivar Street w 0 1948 1966
Mason Avenue w 0 1948
Jefferson Boulevard w 16 1948 (R.462) 1966
Baronet Street w 1 1956 1966
Elm Street (from Alexander 
north to Clinton)

w 2 1956 1967

F.llwood Street (from New 
West to cemetary)

w 1 1956 1967

Cemetery Alley w 0 1956 1967
Faison Street (south of 
Jefferson) w

B
2
1

1956

White Oak Street (from 
Dean to corp. limits)

B 9 1956

Cherry Street (from Front 
to Cottonwood)

B 15 1956

Gale Street (from Silver 
Bayou to north corp. limits) B 19 1956 1966 (part)

1967 (part)
Cottonwood Street B 3 1956
Bethlehem Street B 6 1956

7a



A

w

Paved S t r e e t s  In Shaw 

No. c f
Name Race Houses Year Paved

Kentucky Street B 16 1956
Woodlawn Street B 13 1956
Jackson Street Extended 
(north of Porter's Bayou) W 1 1960
Doran street W 4 1960

B 3
Jackson Street (from 
Dean to Woodlawn) B 0 1966
!3uckhalter Street B 15 1967
Cleveland ftreet B 12 1967
Hamilton Street 1967(Lampton Street) B 7
Scott Street (east of Gale) B 4 1967
Kelly Street B 14 1963
Lipe Street B 14 1968
Rogers Street (from 
Gale to Route 61) B 32 1968

Year
R esu rfaced

8a