Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Brief
Public Court Documents
January 1, 1966

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Brief Collection, LDF Court Filings. Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Brief, 1966. 83f3d1df-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6b83a2f8-907c-468a-9fd2-160b9f4c610c/cypress-v-newport-news-general-and-non-sectarian-hospital-association-inc-appellants-brief. Accessed July 09, 2025.
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■United States (Enurt nf Appeals F oe the F ourth Circuit No. 10,672 I n t h e George C. Cypress, et al., -v.- Appellants, T he Newport News General and N on-Sectarian H ospital A ssociation, I ncorporated, et al., Appellees. on appeal from the united states district court for the EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION APPELLANTS’ BRIEF J ack Greenberg J ames M. Nabrit, III Michael Meltsner 10 Columbus Circle New Yoi'k, New York P hilip W alker 648 25th Street Newport News, Virginia Attorneys for Appellants Conrad K. H arper Of Counsel I N D E X PAGE Statement .............................................................................. 1 The Pleadings .................................................... 2 Summary of Pacts .................................................... 4 Recital of Testimony ................................................ 7 District Court Opinion ............................. 22 Questions Presented .......................................................... 27 A rgument— I. Negro Physicians Are Excluded Prom Staff Membership at Riverside Hospital in Violation of the Fifth and Fourteenth Amendments when (A) Whites Are Readily Placed on the Staff, (B) the Qualifications of the Negroes Are Un questioned (C) the Hospital Presents No Evi dence of Any Non-Racial Ground for Exclusion and (D) Three-Fourths of an All-White Staff Must Vote for a Negro’s Admission ................... 28 A. Negro Doctors Are Excluded From Practice at Riverside Hospital ....................................... 28 B. The Hospital May Not Exclude Qualified Negroes by Means of a Procedure Which Burdens Negro, and Not White, Applicants .... 32 II. Appellants Are Entitled to Injunctive Relief Against the Hospital’s Practice of Assigning Rooms on the Basis of Race ........................... 36 Conclusion ................................................ ............. ........... 39 11 T able of Cases page Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963) ......................................................................... . 38 Anderson v. Martin, 375 U.S. 399 .................................. 32 Chambers v. Hendersonville Board of Education, F .2 d ------ (4th. Cir. 1966) .................................29,30,33,35 Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ....... ....36, 38 Evans v. Newton, 382 U.S. 296 ....................................... 38 Evers v. Dwyer, 358 U.S. 202 ...................................... 38 Franklin v. Giles County School Board,------ F.2d —— (4th Cir. 1966) ................................................................ 33 Goss v. Board of Education, 373 U.S. 632 ................... 32 Greene v. McElroy, 360 U.S. 474 ........ ....... ........ ........... 33 Griswold v. Connecticut, 381 U.S. 479 ........................... 38 Hall v. St. Helena Parish, 197 F. Supp. 649 (E.D. La. 1961), aff’d 368 U.S. 515 .............................................. 32 Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th Cir. 1966) .................................................. 29,33,35 Hernandez v. Texas, 347 U.S. 475 ................................ 29 Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959) ..... 34 Interstate Commerce Commission v. Louisville and N. R. Co., 227 U.S. 88 ................................ ............... 33 James v. Duckworth, 170 F. Supp. 343 (E.D. Va. 1959) ..................................... .......... .................. .......... . 32 Johnson v. Branch,----- - F .2d ------ (4th Cir. 1966) 32 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 ........................................................ ..... A W -33 Ill PAGE Louisiana v. United States, 380 U.S. 145 (1965) ........... 34 Lucas v. Colorado General Assembly, 377 U.S. 713..... 32 Ludley v. Board of Supervisors Louisiana State Uni versity, 150 F. Supp. 900 (E.D. La. 1957) aff’d 252 F.2d 372 (5th Cir. 1958) cert. den. 358 U.S. 819 ...... 34 Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) ........... 33 Morrison v. Davis, 252 F.2d 102 (5th Cir. 1958) ....... 38 Pierre v. Louisiana, 306 U.S. 354 ................................... 35 Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ...............32, 38 Rackley v. Orangeburg Regional Hospital, 310 F.2d 141 (4th Cir. 1962) .......... .......... .................................36, 38 Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) cert, denied 376 U.S. 938 .....32, 35, 36, 38 Slochower v. Board of Education, 350 U.S. 551 ......... 33 United States v. Logue, 344 F.2d 290 (5th Cir. 1965) .... 34 United States v. Mississippi, 339 F.2d 679 (5th Cir. 1964) .................................................................................. 34 United States v. Wilbur Ward, 345 F.2d 857 (5th Cir. 1965) .................................................................................. 34 Wieman v ......Updegraff, 344 U.S. 183 ........................... 32 Other A uthorities Merck Manual of Diagnosis and Therapy, 10th Ed., 1961 ...... 37 Virginia Administrative Agencies Act, Va. Code §9-6.10 33 I n t h e Itttfrfc (Emtrt of Appeals F ob the F ourth C ircuit No. 10,672 George C. Cypress, et al.. Appellants, T he N ewport News General and N on-S ectarian H ospital A ssociation, I ncoporated, et al., Appellees. on appeal from the united states district court for the EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION APPELLANTS’ BRIEF Statement This is an appeal from an April 21, 1966 order of the District Court for the Eastern District of Virginia dis missing on the merits the claims of Negro physicians and patients to nondiscriminatory medical staff admission and use of treatment facilities at a Hill-Burton Act hospital, the Riverside Hospital of Newport News, Virginia (299a). The opinion of the district court is reported at 251 F. Supp. 667 (282-296a). 2 The Pleadings Plaintiffs brought this action October 11, 1963 on behalf of themselves and others similarly situated to enjoin the hospital, and its administrator, from continuing to deny staff membership to Negro physicians and segregating Negro from white patients in violation of the Fifth and Fourteenth Amendments to the Constitution (5-16a). The complaint asserted “federal question” and “ civil rights” jurisdiction under 28 U.S.C., §§1331, 1343(3); 42 U.S.C., §§1981, 1983 (5a, 6a) and, in summary alleged that (1) Negro physicians practicing in Newport News had been refused medical staff membership pursuant to the River side’s policy of excluding Negroes; (2) Darnell Jackson and Sandra Rose Clark, children suffering from sickle cell anemia, a chronic disease requiring frequent hospitaliza tion, desire treatment at Riverside but the hospital ex cludes their physician, Dr. George C. Cypress, and segre gates patients by race; and (3) Riverside is a tax exempt and state regulated hospital which has received approxi mately $2,250,000.00 from the United States pursuant to a “ state plan” for hospital construction formulated by the Commonwealth in accordance with the specifications of the Hill-Burton Act (13a, 14a, 11a). On December 5, 1963, the hospital moved to dismiss the action on the ground that the court lacked jurisdiction over the subject matter (17a, 18a). On March 2, 1964, the hospital answered denying that it refused to admit Ne groes to its staff or segregated patients on the basis of race (19a, 20a) and affirmatively alleging that denial of staff membership to Dr. Cypress “ was for just and good cause and was not on the basis of race” (20a). It was also denied that the hospital was subject to the Fourteenth Amendment, that “ separate but equal” provisions of the 3 Hill-Burton Act and regulations were unconstitutional, and that the suit was a proper class action (19-21a). Beceipt of funds from state and federal governments was admitted (20a).1 At the trial, held July 14-15, 1964, appellants offered the testimony of Dr. Cypress (72a) and Dr. C. Waldo Scott (100a) another Negro physician who had been refused staff membership. Three white physicians, Dr. Allan But ler (113a), Dr. Samuel Standard (164a) and Dr. Colvin Salley (183a) testified as to the qualifications of Dr. Cy press and Dr. Scott. Two Negro physicians, Dr. B. E. Beid (236a) and Dr. G. P. Carter (237a) testified to their interest in the class action brought by Dr. Cypress; Dor othy Wright (188a), mother of Darnell Jackson, testified to her desire to have her child treated by Dr. Cypress at the Biverside Hospital. The hospital called as its sole witness the administrator, Nelson L. St. Clair, Jr. (194a). For convenience of presentation, a summary of facts is followed by a recital of testimony on an individual basis. 1 The present hospital facility was financed in part by a grant of $3 million from the United States and the Commonwealth of Virginia under the Hill-Burton hospital construction program (25a). The federal grant agreement is in evidence as plaintiffs’ exhibit 9 but has not been printed. The hospital also receives appropriations from the City of New port News, Virginia and the Commonwealth. During the years 1961-1963 the hospital received the following sums from the City (27a) : 1961 ..................................... $43,842.82 1962 ..................................... $73,133.69 1963 ..................................... $68,295.97 During the period 1961-1963 the hospital received the following ap propriations from the Commonwealth: 1961 .......................... 1962 .......................... 1963 .......................... $6,326.31 $7,873.51 $7,792.89 4 Summary of Facts Riverside Hospital is a modern 323 bed hospital which supplies the Newport News area with a wide range of medical services, the best facilities, and its highest stand ard of patient care (78a, 108-09a, 137a, 224-25a). Approxi mately 169 whites and 18 Negroes practice medicine in the community but Negroes have not been granted staff membership (76a). The medical staff of the hospital con sists of 117 whites and no Negroes (76a, 108a, 25a, 28-39a). As no patient may be admitted or treated by a physician who is not a member of this staff (41a), Negro physicians are unable to use the hospital although Negroes who are patients of white physicians may be treated at Riverside. Six of the seven Newport News pediatricians certified as specialists by the American Board of Pediatrics are on the medical staff (33a, 73a, 77a, 78a).2 They are white; the other pediatrician, Dr. Cypress, a Negro, has been denied membership on the staff (240a, 242a). There are 19 surgeons in Newport News, eighteen whites and one Negro, Dr. C. Waldo Scott (Tlla, 112a). Seventeen of the 18 whites are members of the Riverside surgical staff (34a, 35a) ;3 the sole Negro, Dr. Scott, has been refused staff membership (241a). While Dr. Scott is certified as a specialist in surgery by the American Board of Surgery, 9 of the white physicians on the surgical staff are not (33- 35a). Tables A, B, C, and D reflect these statistics: 2 Specialty boards examine the training and skill of physicians and certify them as licensed specialists (72a, 102a). Some hospitals will not consider a physician for staff membership unless he is board certified in his specialty (173a) for the likelihood of finding an “able” physician is “ far greater” among certified specialists (173a). It is only proper to refuse staff membership to board certified physicians “ under appropriate specific considerations” (139a). 3 Dr. Scott testified he believed the number was 15, but the hospital’s roster of staff members, appended to answer to interrogatory Number 1, indicates the correct number of surgical staff members is 17 (33-35a). 5 MEDICAL STAFF MEMBERSHIP AT RIVERSIDE HOSPITAL, NEWPORT NEWS, VIRGINIA4 TABLE A Total number Total number of physicians in community White Negro of medical staff members White Negro 187 169 18 117 117 0 TABLE B Board certified Board certified pediatricians in community White Negro pediatricians on hospital staff White Negro 7 6 1 6 6 0 TABLE C Surgeons in community White Negro Surgeons on hospital staff White Negro 19 18 1 17 17 0 TABLE D Board certified Board certified surgeons in community White Negro pediatricians on hospital staff White Negro 9 8 1 8 8 0 Dr. Cypress on two occasions and Dr. Scott once have applied for and been denied membership on the medical 4 Source: 28-39a; 41a; 76-78a; 108-112a; 219a; 226a. 6 staff (240-242a). Reasons were not assigned for rejections of their applications, and when Dr. Cypress sought a conference with hospital officers, the hospital did not reply to his letter (75a, 107a, 206a, 207a). An overwhelming body of evidence, including testimony of eminent expert witnesses and the Health Director of the City of Newport News, supports the finding of the district court that both Dr. Cypress and Dr. Scott are “highly qualified according to this record” (284a). The education, ability, character, and experience of the two Negro doctors was not seriously contested by the hospital at trial although it had alleged previously that Dr. Cypress was denied membership for “ just and good cause” (20a), and had indicated, as shown by the pre-trial order, that white physicians would be called to testify (45a, 46a). No evidence was adduced that the Negro doctors are unquali fied or that any professional or ethical disability explained denial of staff membership. The hospital’s only witness, administrator St. Clair, conceded that both physicians qualified under standards set forth by the by-laws of the staff (221a, 226a, 262a, 254a): By the Court: Q. I take it that you have no reason to point out to me in any respect wherein either Dr. Cypress or Dr. Scott are lacking in training, experience and dem onstrated competence? A. No, sir. The hospital’s evidence consisted of testimony from the administrator describing the procedures through which an application passed from credentials committee (which ap proved both Negro doctors) to specialty staffs (which transmitted Dr. Cypress’ application without recommen dation and Dr. Scott’s with recommendation that it be 7 rejected) to the medical staff where a successful appli cant requires affirmative votes from three fourths of the 117 doctor staff voting by secret ballot (where both ap plicants failed to receive the necessary votes) to the Board (which always ratifies the decision of the medical staff) (195a, 253-55a, 206a, 226a, 67a). The failure of the spe cialty staff to enter a recommendation with respect to Dr. Cypress was “the first time that it happened” (206a). Throughout this process no hearing is held or findings entered with respect to the qualifications of an applicant and no reasons are assigned to a denial of membership (206a, 207a, 210a, 107a). The by-laws of the medical staff provide that the specialty staff will submit a “ report” to the medical staff but none was submitted in the cases of the Negroes (207a, 254a). When questioned about this re quirement the administrator at first denied its existence (207a), then testified he had no recollection of written reports ever being submitted by the specialty staff (207- 210a). With respect to patient segregation the evidence shows that: “ Medical floors are integrated to an extent. We do not put Negro and white patients in the same room” (63a). Only when parents are consulted and Mr. St. Clair deter mines there will be no conflict, are Negro and white pediatric patients placed in the same rooms. The court found “Riverside concedes that its practice is not to assign Negro and white patients to the same room” (295a). Recital of Testimony George C. Cypress Dr. Cypress is a licensed, Negro, medical doctor certified as a pediatric specialist by the American Board of Pedi atrics (72-73a). He has been Chief of Pediatrics at a 8 United States Army Hospital, a teacher and consultant at numerous hospitals and government agencies and a member of the staff of Dixie Hospital in Hampton, Vir ginia and Whittaker Hospital in Newport News, where he is Chief of Pediatrics and Medical Director (73a, 74a, 79a, 81a, 244-48a). In April, 1961, and again in April, 1962, Dr. Cypress applied for membership on the medical staff at Riverside (74a). Subsequently, he received letters from the hospital stating, without elaboration, that his application for staff membership had been denied (74-75a, 240a, 242a). From the time he submitted these applications until receipt of letters of rejection, Dr. Cypress was not asked to appear before any body of the hospital or otherwise contacted (75a). After the second application was denied a letter was written to the hospital requesting a conference to discuss reasons for denial.6 The hospital did not reply (75a). Eighteen other Negroes practice medicine in the Newport News-Hampton area, but none is a member of the River side medical staff (76a). Of the seven pediatricians prac ticing in the area, Dr. Cypress is the only nonwhite (77- 78a), and the only pediatrician in the area who has been refused staff membership at the hospital (78a). Dr. Cypress applied for staff membership because “ Riv erside Hospital is the best-equipped hospital on the penin 6 The second application listed one organization, the Virginia Pediatric Society, of which Dr. Cypress was not a member (77a, 83a). For six years he had received notification of meetings from the Society (77a) and attended its meetings, which were held simultaneously with a medical society of which he was a member, the American Academy of Pediatrics, Virginia Section. Dr. Cypress testified that he mistakenly considered himself a member of the Virginia Pediatric Society (77a, 83a) and the district court found no evidence that the misrepresentation “was ever considered in rejecting the application” or even “ discovered prior to the preparation for the trial” (287a). 9 sula” and “I would like to be at the best hospital in the area so that I can give the best care to my patients” (78a, 86a). Another factor was the intern and resident staff of the hospital which relieves “ some of the burden” of car ing for patients and provides opportunity for consulta tions about patient care (78a, 93a, 95a). Although he presently places patients in Dixie and Whittaker hospitals, Whittaker does not have any interns or residents. Dixie does not have a full staff, and the few associated with the hospital are not used in pediatrics (97a). As the only Negro pediatrician in the Newport News-Hampton area, Dr. Cypress is a busy doctor but when questioned by the hospital’s attorney he stated that, he did not believe his workload would be a valid ground for denial of member ship. Noting that Riverside may limit or withdraw staff membership when a physician does not comply with hos pital obligations, he thought it premature to assume his workload would interfere with his practice at Riverside (83a, 85a, 88a).6 He stated that if he were on the staff he would consider dropping other hospital affiliations but he wanted the opportunity accorded to white physicians to make such a decision based on his actual workload after admission (86-88a). He thought he was entitled to “pick the best hospital” in order to “give the highest quality of medical care” (85-86a). Dr. Cypress also testified that he had received no complaints about his availability; that al though there is a shortage of physicians, especially pedia tricians, in Newport News, he had never turned down a patient; and that whenever unavailable he arranged for a physician to “ cover” his cases (83a, 84a, 94a). 6 Compare 154a, 219a, 222a, 262a, 263-269a, 10 Dr. Charles W aldo S cott Dr. Scott is a Negro physician, licensed to practice in Virginia, and certified as a specialist in surgery by the American Board of Surgery (100-01 a). A cum laude grad uate of Howard University and University of Michigan Medical School, he also holds a M.S. degree in zoology from Howard University (100-01a), is a fellow of the American College of Surgeons (102a) and a member of a number of medical societies (102a). Aside from being chairman of the surgical staff at Whittaker Hospital, he is a staff member at two other hospitals, a Veterans Ad ministration hospital consultant, and a former instructor in general surgery at the Howard University Medical School (103-04a, 249a). In March, 1963, Dr. Scott applied for membership on the medical staff at Riverside (106a). He sought member ship because Riverside is a modern hospital, large enough to have “innovations” for the comfort and care of patients and specialists with whom he would like to consult (108- 09a). A number of his patients had expressed disappoint ment at not being able to be placed in Riverside (109a). In June, 1963, he received a letter from the administrator stating only that his “application for staff membership at Riverside hospital has been denied” (107a). There are a total of 169 white physicians and 18 Negroes practicing in the area; 117 of these—all white—are mem bers of the medical staff of the Riverside hospital (108a). Dr. Scott is the only Negro of the 19 general surgeons practicing in the community. He believed that approxi mately 15 of the 18 white surgeons are of the Riverside surgical staff (lll-12a). Dr. Scott described his interest in the litigation as fol lows : “ I am interested not only for my own benefit, but for 11 the benefit of others who are practicing and others who will be coming to the area who are similarly situated as are we” (109a). The hospital declined to cross-examine Dr. Scott (112a). Dr. A llan B utler Dr. Butler, Professor Emeritus at the Harvard Medical School and former Chief of Children’s Services at Mas sachusetts General Hospital, was qualified by the court as an expert in appraising the qualifications of pediatricians for hospital staff membership: Any man who had had the vast experience that Dr. Butler has had would, of necessity, know, of course, how pediatricians must deal with hospitals and, in a general sense, how hospitals deal with pediatricians (117-18a).7 Dr. Butler directly observed Dr. Cypress practice medi cine at office and hospital and surveyed his educational record before appraising his qualifications (121-24a). He was impressed by the cleanliness of the office, the caliber of the equipment and the competence of Dr. Cypress’ nurse 7 Dr. Butler has practiced pediatries in Massachusetts and Michigan (141-142a) and taught medicine at Harvard Medical School, Infants’ and Children’s Hospitals of Boston, Massachusetts General Hospital, Eye and Ear Infirmary of Boston, Stanford and Tulane Universities (114a). He has been a member of the staff at Massachusetts General Hospital, the Eye and Ear Infirmary, Boston Lying In Hospital, Tux- bury State Hospital, Boston Psychopathic, Metropolitan Hospital of Detroit and Stanford University Medical Center (114a). He is a former President of the New England Pediatric Society and the American Pediatric Society and has been an official or a member of the Society for Pediatric Research, Society for Clinical Investigation, the Associa tion of American Physicians and the American Academy of Pediatrics (115a). Prom 1929 to 1960, he published over 100 papers on medical subjects (115a). At Massachusetts General Hospital and Metropolitan Hospital in Detroit his duties included organizing the medical staff (116a, 143a). 12 and secretary (121a). He was “very impressed” by the utilization of the nurse in caring for office patients (122a). Record-keeping was “ excellent” (122a). The choice of drugs and use of medications shown on records examined by Hr. Butler was also “ excellent” (“and this is a part of medical therapy that can either be done very well or very badly” ) (122a). He observed Dr. Cypress examine and treat a number of office patients and found examination and administration of therapy “ good” (122-23a). “ Through out” he was impressed by Dr. Cypress’ “wise utilization of consultants” (123a). At Whittaker Hospital, he watched Dr. Cypress treat seven patients, including three prema ture infants, and went over their medical records “and again it was good” (123a). The opportunity Dr. Butler had to observe Dr. Cypress’ care for his patients “ is probably a more thorough first hand contact in going over his records and watching him take care of patients than I have had in the opportunity to appraise the qualifications of . . . the perhaps fifty physi cians—maybe more—that I examined as Chief of Clinical Services at the Metropolitan Hospital in building up the staff of that hospital” (123a). Based upon observation, and consideration of Dr. Cypress’ record, Dr. Butler testi fied that he would recommend him for the staff at hos pitals at which Dr. Butler had held positions of responsi bility, including “ one of the outstanding hospitals of the United States” (116a-124a). Dr. Butler testified that Dr. Cypress’s large practice might give him another reason for endorsing Dr. Cypress (125a)8 for a major consideration in granting staff mem 8 Dr. Butler’s favorable opinion of Dr. Cypress would not be modified by whether he had correctly listed membership in the Virginia Pediatric Society, for he himself often confused medical societies (120a, 152-153a). Dr. Cypress “ justifiably confused” the American Aeademy of Pediatrics, Virginia Section and the Virginia Pediatric Society (152a). 13 bership is “ How could we help this doctor in his services to the people he is caring for in the community” 9 (134a). His recommendation of Dr. Cypress would not be affected by the number of other staff appoitnments Dr. Cypress might have for numerous staff appointments are not grounds for refusing membership (125a, 127a). This is es pecially true if the added hospital is the best in the com munity,10 has interns and residents,11 and increases a doc tor’s access to consultants (127a-29a). The majority of practicing physicians in the United States are affiliated with more than one hospital (160a) and the majority of pediatricians on the staff at the Massachusetts General Hospital, hold appointments at three or more hospitals, often at distances of 15 to 25 miles from their offices (125a- 27a). Dr. Butler stated that he would “ not necessarily” grant staff membership to a doctor on the basis of spe 9 Even if a physician is not entitled to full privileges he should still be taken on a staff with limited privileges if this would facilitate the services he is rendering to the community (134a). Dr. Butler had even recommended persons of whose judgment he did not think too highly because such a doctor would be in contact with the physicians at the hospital and thereby improve the service he would render to his patients (135a). 10 A major consideration in the choice of hospital to admit a child who is not critically ill is to get the child to a pediatric unit where there is proficiency in nursing, proper attention to psychological stress, and entertainment. Such a pediatric unit cannot be provided economically if smaller than 25 beds. Riverside hospital has a pediatric unit of the size which ought to make it able to provide these services (162-163a, cf. 225a). 11 The assistance o f interns and residents makes “ all the difference in terms of the beating the doctor takes” (155a). Responsibilities are delegated to them (156a) and this is a timesaving procedure for the doctor (156a). Working in a hospital which does not have interns or residents is a tremendous burden on a doctor (156-158a). Dr. Butler conceded that a problem in American medicine is treating seriously ill patients in more than one hospital when there are no interns and resi dents in the hospitals but stated this problem is not pertinent to denial o f staff membership, for it affects a majority o f practicing physicians in the United States (159-60a) and restricting a physician’s practice to one hospital is not the way to solve it (158a). 14 cialty certification alone, but denial of membership to a board certified physician is only proper “under appro priate specific considerations” (138a-39a). When asked by counsel for the hospital to comment on the fact that other pediatricians in the Newport News area have reduced the number of their staff affiliations, Dr. Butler testified (160a-61a): A. Right. And how do you know but what if Dr. Cypress is on the staff of the Riverside Hospital the way these other pediatricians are that, he, too, wouldn’t restrict his care of hospitalized patients more to River side than he can now do? My guess is he would. Q. It could well be. A. Right. Q. The point is, though, that he would be on the staffs of others and would have to divide his time. A. No, he might resign from the staffs of others if he had the privilege— Q. In other words, you are getting into speculation now of what he might do? A. Well, this has been done by other members of the staff of the Riverside Hospital. After joining the Riverside Hospital, they have lessened their staff membership in other hos pitals. Dr. Samuel Standard Dr. Standard, a specialist in surgery and Director of Surgery at Morrisania Hospital in New York City (164a), was qualified by the court “ in the field of general surgery” and also “in his capacity as a director of surgery for various hospitals” (167a).12 Dr. Standard has “unique 12 Before becoming Director o f Surgery, Dr. Standard was in the private practice of surgery (,164a). Prom 1939 to 1950 he was Director of Surgery at Monteflore Hospital in New York and from 1950 to 1962 he was Director of Surgery at Sydenham Hospital in New York (164- 15 experience” in appraising the qualifications of “ somewhere around a hundred” (165a, 167a) surgeons and a number of hospitals for the Hospital Accreditation Committee (composed of representatives of the American Medical Association, American College of Surgery, and the Ameri can Board of Surgery) and also for organizations such as the Health Insurance Plan of New York (165a-66a). Dr. Standard observed Dr. Scott perform surgery at the Whittaker Hospital, appraised a random selection of his charts, discussed professional problems, and surveyed his educational record (168-69a). The time spent ob serving Dr. Scott was “as much, or perhaps more than” that given those considered for staff membership at Dr. Standard’s hospitals (173a). In his opinion Dr. Scott is a highly qualified surgeon and a graduate of a highly rated medical school with an unusually good educational record (168a-70a). He has a “ flawless technique” in the operating room (166), and is “technically well above the average” (170a). “ [H ]e has a fine knowledge of both preclinical medicine and clinical medicine” (169a). “ On the whole his charts would stand up well in any accredited hospital” (171a). The times of his operations are those “any meticulous surgeon would take” (171a). “He has a sense of confidence and serenity which a young surgeon must develop . . .” (172a). Based on direct observation and educational qualifications, Dr. Standard would be very happy to have a man of Dr. Scott’s caliber on the surgical staff of his hospital “as an example for a group of resi dents” (172a). 65a). Dr. Standard is a member of county, state and national medical associations and a member of the New York Surgical Society and New York Cancer Society (166a). He is a member o f the American College of Surgeons and a diplomat of the American Board of Surgery (166a) and is presently professor of clinical surgery at New York University and Bellevue Medical Center (165a). 16 Dr. Standard also relied on Dr. Scott’s certification by the American Board of Surgery, a prerequisite for staff membership at Dr. Standard’s hospitals (172a-73a). A l though board certification is not the sole basis on which a surgeon should be granted membership (180a), “ I think if we were to take a hundred board certified men and a hundred non-board certified men, the likelihood of our finding a group that were less able would be far greater in the latter group” (173a). Dr. Standard agreed with Dr. Butler as to the value of association with a hospital which has interns and resi dents.13 A house staff of interns and residents “ actually does the day labor of taking care of patients” (174a). The “ important” decisions are made by the attending staff (174a) but the “ details, say, of putting a tube down a man’s stomach or putting a catheter into his vein or some thing like that” are done by the interns and residents (174a). These duties which are part of the education of the residents and interns “ really [take] the load off the surgeon” (174a). D r, Colvin W . Salley As Health Director of the City of Newport News since 1961, Dr. Salley is responsible for the health of the citizens of the City (183-84a). A retired colonel in the U. S. Army Medical Corps, he was commanding officer at the Fort Eustis, Virginia army hospital until 1961 where he was Dr. Cypress’ supervisor (184a, 186-87a) when Dr. Cypress was employed as a civilian pediatrician, first on a full time, and later on a part-time, basis (186a). Dr. Salley’s views of Dr. Cypress’ character and ability are as follows: He never received complaints about Dr. Cypress, “Nothing 13 See note 11 supra. 17 but praise” (185a). Dr. Cypress now runs a weekly clinic for poor children at the Health Department which he has never failed to meet (185a). His performance at the clinic has been “ superior” (185a). Sick children “with not a cent of money” referred to him by Dr. Salley are always ac cepted (185a). Dr. Salley had recommended Dr. Cypress for staff membership at Riverside Hospital because in 29 years of medical practice he has “never been associated with a better pediatrician than Dr. George C. Cypress” (186a). D orothy W right Dorothy Wright works at a laundry at Fort Eustis (189a) and is the mother of a thirteen year old Negro child, Darnell Jackson, who has suffered from sickle cell anemia since 1953 (189a). The child has been treated at Riverside and Whittaker hospitals in the past by three different doctors, but is now a patient of Dr. Cypress (190a). If the child has to go to the hospital again, she desires that the child be treated at Riverside because it is new and closer to home. She also desires to use Dr. Cypress if the child is hospitalized because his treatment seems to have helped the child (191-92a). Dr. R. E. R eid Dr. Reid is a Negro physician licensed to practice in Virginia who has practiced in Newport News for 29 years (236-37a). He is interested in obtaining staff member ship at Riverside Hospital although he has not applied for membership (236-37a). He stated his interest in this litigation as follows (236a) : A. Well, I am a Negro, as we all know, and I feel that anything that would go against him would go 18 against me so far as availability to practice in any hospital in the community, particularly the Eiverside Hospital. He. Gregory P. Carter Hr. Carter is a licensed Negro physician who has prac ticed in Newport News for approximately 16 years (237- 38a). He would like to become a member of the Eiver side staff, but he has not applied (238a). In bringing this suit, Hr. Carter feels that Hr. Cypress represents him (237a). Nelsox L. St. Clair, J r. Administrator St. Clair has served in that capacity or as acting or assistant administrator since January, 1961 (50a, 63a).14 Hr. Cypress’ first application for member ship was approved by the Credentials Committee, but was sent from the pediatric staff to general staff without rec ommendation, the first time such a procedure had been used (52-53a, 206a). When Hr. Cypress reapplied in 1962, the application was not reprocessed because less than a year had elapsed since the first application but Hr. Cypress was not notified of this failure to reprocess (53a, 75a). He knew of no reason for Hr. Cypress’ rejection other than the fact that he had failed to obtain the necessary three- fourths votes of the medical staff (54-55a). Hr. Scott’s application was approved by the Credentials Committee and the application was then forwarded to the surgical staff which recommended to the medical staff that member 14 Mr. St. Clair received a Master’s Degree in hospital administration in 1961 from the Medical College of Virginia. As part of his education he was administrative resident of Norfolk General Hospital (194a). 19 ship not be granted. Dr. Scott did not obtain the neces sary three-fourths vote (56a). Mr. St. Clair did not attend the meetings which consid ered the applications of the Negro physicians (57a) and the only contact he has had with Dr. Scott or Dr. Cypress was a discussion with the former when he picked up the membership application. Dr. Scott had asked if Negro physicians were permitted to apply and was told that he was at liberty to apply (227a, 232a). After the applica tions were submitted, there was no discussion with either Negro (207a). The specialty staffs did not submit reports to the general staff although the by-laws of the hospital specify that such a report is to be made (207-09a). When submitted, these reports are never in writing (209-10a). State license to practice medicine does not automatically qualify a man to be a member of the staff, nor is board certification alone sufficient, but Mr. St. Clair had no information that Dr. Cypress or Dr. Scott are lacking in training, experience and demonstrated competence as physicians (221a). The hospital has not, moreover, re jected the application of a board certified pediatrician other than Dr. Cypress (205a). Mr. St. Clair described the procedure employed with respect to applications for staff membership. Article III of the By-laws of the staff contains the only provisions which refer to staff membership (224a, 252-56a). An ap plication is presented to the Administrator by the physician and after references have been checked and letters of rec ommendation received, it is presented to the Executive Committee of the medical staff, which acts as the Creden tials Committee (195a). I f the physician’s application is in order, as were Cypress’ and Scott’s (226a), it is sent to the staff of the physician’s specialty, which normally 20 recommends whether the application should be approved by the general staff. From the specialty staff the appli cation is sent to the 117 doctor general staff, wThich votes either for or against the application (195a, 206a), three fourths majority being necessary for approval (206a). After the vote, the application is presented to the Board of the hospital for final action (195a). Mr. St. Clair’s testimony made it clear that physicians placed on the staff had appointments at other hospitals for after becoming staff members many physicians have re signed staff memberships at other hospitals (202a, 205- 06a, 218a). He also described the manner in which the hospital assures that physicians meet staff obligations. Hospital committees appraise the work of physicians and report any deficiencies (219a) and membership privileges may be limited on the basis of training, experience and demonstrated competence (220a, 224-25a). In addition, physicians may be placed on the staff for a probationary period (223a). At a deposition taken prior to trial, Mr. St. Clair testified that since 1961, when he was employed by the hospital, he believed only three applicants other than Doctor Cypress and Doctor Scott had been rejected. Under questioning he could recall two such cases, only one involving a physi cian. A dentist was rejected because his residence was in Norfolk. A doctor applied who had been accepted at one or two other local hospitals but it was felt that he might not meet Riverside’s standards of practice (63-64a). Dur ing this period (1961-64) approximately 20 doctors had been admitted to Riverside’s staff (63-65a). At trial, in response to inquiry from his attorney, Mr. St. Clair stated that a total of eleven or twelve white physicians have been rejected for staff membership at the hospital since 1958 (202-03a). 21 With respect to patient segregation, he testified as fol lows: “Medical floors are integrated to an extent. We do not put Negro and white patients in the same room.” When parents are consulted and he determines there will be no conflict, Negro and white pediatric patients may be placed in the same room (63a). As “a regular thing” , however, “we do not put Negro and white patients in the same room” (63a). Charles K. H utchens Appellants placed in evidence the deposition of Mr. Hutchens, Chairman of the hospital Board since 1952 and before that a member of the Board (65a). He had read the minutes of the Board meetings which considered the applications of Dr. Cypress and Dr. Scott but had not attended these meetings (66a). He stated that in passing on applications for staff membership, the Board always abides by the recommendations made by the medical staff (67a). He had no knowledge of a Board policy of racial segregation, but when the hospital was located in an older building, it had a separate entrance for Negroes and pa tients were assigned space on the basis of race (68-70a). D r . Stuart E ichenfield Dr. Eichenfield, a board certified pediatrician practicing in Baldwin, New York (D. 3),15 16 was Chief of Pediatrics at the Fort Eustis Army Hospital from 1958 to 1960, a super visor of Dr. Cypress during that period (D. 5). His depo sition was admitted as that of a witness more than 100 miles from the place of trial in anticipation of defenses suggested by the pleadings but never raised at trial by 15 Citations are to Dr. Eiehenfield’s deposition which is not printed but is contained in the original record transmitted to the court. 22 the hospital. He testified that Dr. Cypress did his work “very well” (D. 6) and is possibly “ the most competent pediatrician” in the Newport News area (D. 27). Dr. Cypress’ character and judgment were “ excellent” . He never committed any breach of medical ethics (D. 14, 16). On the question of staff affiliations, Dr. Eichenfield is currently on the staff of five hospitals, one only “ techni cally” (D. 4, 5) and “ utilizes” two of these hospitals (D. 19). Until last year he was also on the staff of another hospital but resigned because the hospitals he now uses are more convenient (D. 25). He would drop all his affili ations if he could conveniently practice at a better hospi tal, such as Mount Sinai in New York City (D. 25, 26). While it is his practice to restrict staff associations, this depends on the particular area of the country (D. 19). In contrast to the situation in Virginia, Dr. Eichenfield is obliged to make many house calls and, therefore, prefers to use nearby hospitals (D. 19). He stated that it is easier to maintain a number of staff memberships when the hos pitals have interns and residents (D. 28). District Court Opinion The district court found that the Negro doctors met all the objective standards required for membership and were both “highly qualified” but unentitled to relief be cause there was no “ affirmative evidence of discrimination” (284a, 291a). On the other hand, the court concluded that “ it may well be argued that there is a justifiable inference of discrimination from denial of the applications from Doctors Cypress and Scott” (291a), and that Negro doc tors “ should now be permitted to apply or reapply for staff membership” (292a). Upon reapplication, the appli cation might be “ accepted, deferred, or rejected.” A “ re jected applicant” however, could request a “hearing” or “ conference” at his own expense before the general staff of the hospital. This proceeding would not be public and statements made would not be governed by rules of evi dence. There “would be no place for attorneys” or cross- examination, sworn testimony or burden of proof although a reporter could take notes at the expense of the doctor (293a, 294a). If the rejected applicant seeks the “ con ference” he may be required as a condition “ to execute a general release in favor of the hospital, its employees, general staff, and any individuals interrogated pursuant to any investigation, as to any statements made by anyone in connection with said application or any investigation made before or after said conference” (ibid.) (Emphasis supplied). He also may be required “to authorize exam ination of records in specific cases and if such authoriza tion is not given the general staff may draw inferences therefrom” (ibid.). In summary, the court concluded, “If the applicant seeks to attack the integrity of the general staff by claiming that its members are rejecting him be cause of race the applicant’s life and professional compe tence must become an ‘open book’ ” (294a). There would be no judicial review “ from the final action taken by the hospital authorities” (293a). The doctors’ “right” to re- apply to the hospital under this procedure was limited to a sixty day period, the court stating it would enter a final decree in favor of the hospital if the doctors did not elect to apply. With respect to segregation of Negro patients, the court held that plaintiffs did not have any standing to complain with respect “to the practice of not putting Negro and white patients in the same room” (Emphasis in original). The court gave the following reasons for this holding: (1) “ This is a complex matter which involves the delicate 24 situation of the patient’s feelings as related to his gen eral health,” (2) The issue is already before the district court in a case filed by “ certain of the same counsel” against another hospital, (3) No witness testified that he ever sought admission to a room occupied by a person of another race although “Riverside concedes that its prac tice is not to assign Negro and white patients to the same room” (295a). On March 28, 1966, appellants filed a request for entry of final decree stating that the doctors did not intend to subject themselves to the proceeding detailed in the dis trict court’s opinion and setting forth their belief that the “hearing” or “ conference” , and especially the absence of judicial review, did not adequately protect their consti tutional rights and failed to secure them from a long standing injury. Specific objection was made to denial of assistance of counsel, right of cross-examination and confrontation, notice of charges, other procedural safe guards, while at the same time requiring the doctors to pay the expense of proceedings and execute a broad re lease. During the pendency of such proceedings, it was noted, there would be a continued denial of relief from admitted segregation of Negro patients. On the basis of these objections, appellants notified the court that in their view it would prejudice their rights not to appeal the court’s ruling that they were unentitled to relief (297a, 298a). The final decree of the district court was filed April 21, 1966 (299a). Notice of appeal to this Court was filed April 29, 1966 (300a). Although the facts in this case are not in dispute—only the inferences to be drawn from them—there are a number of statements in the district court opinion which are mis leading or unsupported by the record. While none is 25 critical to decision, it is believed that clarification will be helpful to the court. First, the district court stated that Dr. Cypress prac tices alone and has no arrangement with any other pedia trician to “ cover” for him when he is unavailable (283a). This is a somewhat misleading characterization of Dr. Cypress’ practice. As the only Negro pediatrician, Dr. Cypress does not have a pediatrician “ cover” for him when he leaves the city, but he always has another doctor “cover” and be responsible for his patients (93-95a, 98a, 231a). He had received no complaints about his avail ability and his office and hospital is always informed of his whereabouts (93-95a, 98a). The record, moreover, supports the conclusion that staff membership at River side Hospital—with its interns, consultants, equipment and modern pediatric clinic—would be of assistance to Dr. Cypress in caring for his patients (93-95a, 98a, 155a, 156a, 218a, 78a, 109a, 160a, 161a, 174a). Secondly, the court stated that Dr. Eichenfield, whose deposition was introduced, testified pediatricians are bet ter able to handle their practice by confining staff member ship to one hospital (283a). Dr. Eichenfield, however, is a staff member at five hospitals, and places most of his patients at two of these (D. 4, 5, 19). He testified that the number of staff affiliations a physician maintained depended on the character of his practice, for example, on the number of house calls he had to make. In Virginia, the number of house calls is few but in Long Island, where Dr. Eichenfield practices, the number is great (D. 19). Significantly, he stated that he would give up all his affiliations if he could practice at a superior hos pital (something he could not do for geographic, not pro fessional, reasons) (D. 25, 26). Dr. Butler corroboi’ated that physicians normally maintain numerous staff affilia 26 tions (125-27a, 144a, 145a, 159a) and administrator St. Clair admitted that many Newport News physicians limited other staff affiliations after being placed on the Riverside staff (202a, 205a, 206a). Thirdly, the district court found that 15 of the 18 white surgeons in the community are on the surgical staff at Riverside (284a n. 1). This finding reflects Dr. Scott’s statement that he understood the number to be 15 (112a). The actual number of white surgeons on the surgical staff, however, is 17 as clearly shown by the best avail able evidence, the listing of staff members supplied by the hospital in answer to appellants’ interrogatories (33a-35a). Fourth. After describing the procedure by which an application for membership at Riverside is considered, the district court found that the procedure “is substantially similar to that followed by other hospitals throughout the nation” (286a). This finding is not supported by the record. Dr. Butler testified that procedures used at Riverside for handling staff applications are employed at other hospitals, but he was not referring to the pro cedure whereby three-fourths of the staff must approve of an applicant (131-33a, 149a, 150a). Indeed, the record demonstrates that at hospitals with which he was affiliated, and others at which Dr. Standard practiced, there is no election for medical staff membership (150a, 151a, 178a, 179a). Dr. Butler stated that (150a): It would be very difficult to have a meeting of 250 practicing physicians of the Massachusetts General Hospital to pass on the credentials of every applicant for staff membership. 27 Questions Presented 1. Whether the rights of Negro physicians and patients under the Fifth and Fourteenth Amendments are violated when a hospital which has received substantial state and federal funds denies the applications for staff member ship of Negro physicians in the following circumstances: (a) The hospital has freely placed white physicians on its staff; (b) Three-fourths of an all-white medical staff must approve a Negro’s admission; (c) Two Negro physicians with unquestioned qualifica tions are rejected by secret vote of the white staff; (d) The hospital presents no evidence of any non- racial ground for exclusion. 2. Whether Negro physicians entitled to staff member ship and Negro patients who have been treated in the hospital and desire to be treated there in the future are entitled to injunctive relief against the hospital’s admitted policy of segregating Negro and white patients. 28 ARGUMENT I Negro Physicians Are Excluded From Staff Mem bership at Riverside Hospital in Violation of the Fifth and Fourteenth Amendments when (A ) Whites Are Readily Placed on the Staff, (B ) the Qualifications of the Negroes Are Unquestioned, (C) the Hospital Pre sents No Evidence of Any Non-Racial Ground for Exclusion and (D ) Three-Fourths of an All-White Staff Must Vote for a Negro’ s Admission. A. Negro Doctors Are Excluded From Practice at Riverside Hospital. The record clearly demonstrates that Riverside staff membership is easily obtained by white physicians and that Negro doctors are excluded although they meet not only the standards set forth by the hospital but those of the nation’s leading hospitals. In addition, the record shows that certified specialists in surgery or pediatries have never been denied membership unless they were Negro. Dr. Cypress is the only pediatrician in the com munity (all of whom are certified by the American Board of Pediatrics) who has been denied Riverside staff member ship. (When Dr. Cypress sought to discuss this extraordi nary result with the hospital, his letter requesting a con ference was not answered.) Dr. C. Waldo Scott’s treatment is even more striking. Seventeen of 18 white surgeons are on the Riverside staff. Nine of these are not even certified by the American Board of Surgeons, although certifica tion is a prerequisite for staff membership at many hos pitals and a significant index of ability (173a). Dr. Scott, the only Negro surgeon in the area, is Board certified, 29 but he has been denied staff membership. It taxes the imagination to contend that exclusion of these Negro physicians reflects other than the desire of the hospital staff to maintain its all-white character absent proof of some factor other than race which distinguishes the Negroes from their peers, Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723 (4th Cir. 1966). I f they stood alone, these statistics would at the very least require from the hospital “ evidence . . . to rebut the logical in ference of racial exclusion” , Hernandez v. Texas, 347 U.S. 475, 480; see Chambers v. Hendersonville Board of Ed ucation, ------ F.2d ------ (4th Cir. 1966) and eases cited. The Negro doctors, moreover, did not rest merely on the hospital’s concession that they meet standards of “ex perience, training and demonstrated competence” (221a). This record also establishes the inescapable conclusion that Negro physicians are arbitrarily excluded from the Riverside staff, for it affirmatively shows that the two Negro applicants denied membership are, in character and ability, exceptional physicians who would be entitled to membership on the medical staffs of any hospital. This is revealed not only by their educational and other “ objective” qualifications but by the testimony of two eminent witnesses who subjected both doctors to examina tion, observation, and appraisal far greater than that usually given persons being considered for staff member ship. The distinguished qualifications of these two physi cians were acknowledged by the district court and defense counsel. Their conclusion that the training and skill of the Negro physicians was excellent was not contradicted and the court entered findings in accordance with their testimony. If corroboration were required it need only be noted, inter alia, that the Health Director of the City of Newport News called Dr. Cypress the best pediatrician 30 he had encountered in 29 years of practice; a former supervisor characterized him as the best pediatrician in Newport News. Both Dr. Cypress and Dr. Scott have taught medicine, hold responsible hospital positions and are considered sufficiently qualified to practice at United States government hospitals. Although Riverside affirmatively alleged in its answer that staff membership was denied for “ just and good cause,” no evidence of any such “ cause” was adduced. Absent from this record—despite the contrary allegation —is any evidence of a legitimate basis on which the ap plications of the Negro physicians could have been validly denied. I f such facts exist, the hospital had the power “to produce the facts” but it has failed to do so. See Chambers v. Hendersonville Board of Education, supra, where the court stated: Innumerable cases have clearly established the princi ple that under circumstances such as this where a history of racial discrimination exists, the burden of proof has been thrown upon the party having the power to produce the facts. On the other hand, the record abounds with instances which establish both physicians as men of high professional and moral stature. Indeed, in order to satisfy everyone that Riverside has no legitimate professional or moral ground for denying membership to Dr. Cypress and Dr. Scott, they have even shown that certain grounds, none of which the hospital has contended are the grounds, could not adequately explain rejection of Negro physicians. Any suggestion, for example, that Dr. Cypress’ staff affiliations at two other hospitals could have justified denial of his application is totally unconvincing. Such an argument has no relevance to Dr. Scott about whose 31 practice no point was made and it does not offer an ex planation of the denial of membership to Dr. Cypress. Dr. Butler testified that it was common for American physicians to have numerous staff affiliations and the ad ministrator confirmed this by testifying that many physi cians decided to decrease their other staff associations only after having obtained membership at Riverside (the best hospital in the community) (202a, 218a). Likewise, Cypress testified he would consider decreasing other affiliations after admission to the staff if warranted by hospital responsibilities. Riverside cannot deny to a Negro doctor the privilege, freely accorded white physicians, to limit their other affiliations, as may be necessary, after admission to the staff. The hospital, it should be noted, has ample means to protect itself from any irresponsible physician who refuses to meet staff duties. The bylaws provide for limitation and extension of privileges after placement on the staff (Art. VI) and continued scrutiny of a staff physician’s fulfillment of his responsibilities (Art. VII) (262a, 265-70a, 155a, 219a). The artificiality of any suggestion that Dr. Cypress could legitimately be denied staff membership for this reason is also amply demonstrated by the failure of the hospital, even when requested to explain the denial of staff membership, to inform him (if such were the case) that he could become a member of the staff if he would drop other affiliations. Finally, the hospital failed to introduce evidence to show that Dr. Cypress’ use of other hospitals played any part in denial of membership by Riverside. In short, the Negro doctors have demonstrated on this record that they qualify for membership under any conceivable set of non-racial standards. 32 B. The Hospital May Nol Exclude Qualified Negroes by Means of a Procedure Which Burdens Negro, and Not White, Applicants. Riverside hospital has maintained in the past and main tains at present policies of racial assignment of patients. The present policy of refusing to assign patients to rooms without regard to race was defended in the district court and continues despite the hospital’s having given assurance at the time it received an approximately 3 million dollar federal grant that it would not discriminate on the basis of race. Thus, the procedure by which the hospital denied membership to Negro physicians operates in a context where race has been and continues to be a con sideration. Negro physicians were denied staff member ship by their failure to obtain the secret ballot votes of more than three-fourths of the all-white medical staff of the hospital, a method which provides an easy opportunity for the exercise of racial prejudice, and seems more suit able to a fraternity than to a facility subject to the Con stitution, Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963). This voting procedure, applied without consideration of evidence, itself violates due process of law.16 The Negro physicians here, however, 16 To put to a vote the doctors’ rights under the Fifth and Fourteenth Amendments to obtain staff membership without racial exclusion is to argue they may be denied their constitutional rights if more than one- quarter of the white physicians on the hospital staff desire to exclude Negroes or act in an other-wise “ patently arbitrary and discriminatory'” manner, Wieman v. Updegraff, 344 U.S. 183, 192; Johnson v. Branch, ------ F.2d ------ (4th Cir. 1966) and cases cited. The Supreme Court rejected a similar argument in Lucas v. Colorado General Assembly, 377 U.S. 713, 736, 737, a recent reapportionment case. See also Goss v. Board of Education, 373 U.S. 632, 655; Anderson v. Martin, 375 U.S. 339; Hall v. St. Helena Parish, 197 F. Supp. 649, 658, 659 (E.D. La. 1961) aff’d 368 U.S. 515; Potts v. Flax, 313 F.2d 284 (5th Cir. 1963), 290; James v. Duckworth, 170 F. Supp. 343, 347 (E.D. Va. 1959). Due process also requires some opportunity to introduce evidence and explain adverse charges. The record clearly demonstrates that Dr. Cypress and Dr. Scott were denied membership without any such opportunity, per- 33 are entitled to admission to the staff not just a hearing, for they have demonstrated qualifications far superior to those required for membership. The voting rule supports this conclusion for applied by an all-white staff, it ob viously places a heavy burden on qualified Negro physi cians because of their race, provides undue opportunity for racial exclusion, and explains the otherwise inex plicable rejection of Dr. Cypress and Dr. Scott. When applied by the all-white medical staff, this proce dure obviously discriminates against qualified Negro physi cians. Staff members voting by secret ballot need give no reasons for denial of membership and are, therefore, “ immune from outward responsibility in depriving others of their rights.” Mr. Justice Frankfurter, concurring, Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161, 162. On the other hand, the procedure places no burden on qualified white physicians. Cf. Franklin v. Giles County School Board,------ - F .2d------ (4th Cir. 1966); Chambers v. Hendersonville Board of Education, supra. This court rejected less burdensome admission proce dures as unconstitutional in Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723 (4th Cir. 1966) where only a recommendation from two of 1,214 white dentists was required for admission. In Meredith v. Fair, 298 F.2d 696, 701-702 (5th Cir. 1962), a state university sought to mitting denial of membership to completely qualified physicians on the basis of any charges, no matter how unfounded, arbitrary or irrelevant, and permitting such charges to remain unrevealed. This is just the kind of mischief which procedural due process requirements were framed to prevent. See Greene v. McElroy, 360 U.S. 474, 496, 497; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161, 162; Slochower V. Board of Education, 350 U.S. 551 (summary dismissal without any inquiry when the self-incrimination claimed denial of due process) ; Interstate Com merce Commission v. Louisville and N.R. Co., 227 U.S. 88, 91. Signifi cantly under Virginia’s Administrative Agencies Act, Va. Code §9-6.10, the Negroes would have been entitled to a hearing, if denied membership by a State “Agency” . 34 justify rejection of a Negro applicant on the ground that he had not furnished required certificates of good char acter from five alumni. As only whites were alumni, the court held that such a certificate requirement was a denial of the equal protection of the laws when applied against Negroes because it imposed “a heavy burden on qualified Negro students, because of their race.” Somewhat simi lar requirements were invalidated in Ludley v. Board of Supervisors Louisiana State University, 150 F. Supp. 900 (E.D. La. 1957), affirmed 252 F.2d 372 (5th. Cir. 1958), cert. den. 358 U.S. 819, and Hunt v. Arnold, 172 F. Supp. 847, 849 (N.D. Ga. 1959). See also United States v. Logue, 344 F.2d 290 (5th Cir. 1965), holding invalid a require ment that registered voters “vouch” for applicants in reg istration in a county where no Negroes had been regis tered. The court said that the voucher requirement “ in evitably imposes a greater burden on Negroes than whites under existing dominant social patterns,” and that, “ im posing as it does a heavier burden on Negro than white applicants, is inherently discriminatory as applied” (344 F.2d at 292). The court did not inquire into the purpose of the voucher rule although the rule had been badly administered; rather it focused on the rule’s effect and found that it fell more heavily upon Negroes than upon whites. Indeed, the principle that a marked discrimina tory effect is the true measure of unconstitutional action has been long established. United States v. Wilbur Ward, 345 F.2d 857 (5th Cir. 1965); United States v. Mississippi, 339 F.2d 679 (5th Cir. 1964); Louisiana v. United States, 380 U.S. 145 (1965). In summary, it is difficult, absent confession of a policy of racial exclusion, to conceive of additional evidence of discrimination which the Negroes could have adduced. While only required to prevail by a preponderance of evi dence, they have shown beyond a reasonable doubt that 35 they are highly qualified and respected physicians who meet standards applied in the leading hospitals in the nation and that whites—especially with their specialty qualifications—are always granted membership. In the face of such evidence, and this Court’s condemnation of a less burdensome procedure than employed here in Haw kins, supra, the hospital must come forward with some evidence of a valid ground for denial, especially when it alleged exclusion for “ just and good cause.” The hospital, however, has not come forward with any evidence. Its only witness was not present and did not participate in the staff meetings at which the votes were taken and con ceded that as far as he knew, both physicians were fully qualified. To hold, in these circumstances, that appellants have not established exclusion of Negro physicians would be to permit Hill-Burton hospitals unfettered discretion in with holding staff membership, for, aside from the outright admission of discrimination, the proof submitted in this case is the only kind available to Negro physicians to establish their exclusion. If qualifications such as Dr. Scott’s and Dr. Cypress’ are inadequate, no Negro will ever obtain admission to the Riverside staff, although “Racial discrimination by hospitals visits severe conse quences upon Negro physicians and their patients” Sim- Jcins v. Moses N. Cone Memorial Hospital, 323 F.2d 959, 970 (4th Cir. 1963). The hospital has failed to offer a valid explanation for rejection of the Negro physicians although, if such explanation existed, it was within the hospital’s power to produce it. See Pierre v. Louisiana, 306 U.S. 354, 361 ;17 Chambers v. Hendersonville Board of Education, supra. 17 “Had there been evidence obtainable to contradict and disprove the testimony offered by petitioner, it cannot be assumed that the state would have refrained from introducing it.” 36 II Appellants Are Entitled to Injunctive Relief Against the Hospital’s Practice of Assigning Rooms on the Basis of Race. Uncontradicted testimony of Administrator Nelson L. St. Clair, Jr., establishes segregation of patients at River side Hospital. Negro patients at Riverside Hospital are not assigned to rooms with white patients. Pediatrics is an exception only when parents are consulted and Mr. St. Clair determines that no “ conflict” will result. Appellants are entitled to an order enjoining racial as signment practices at the Hospital. That such assignment is unlawful is demonstrated by Simkins v. Moses II. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert, denied 376 U.S. 938, and Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). See also Rackley v. Orangeburg Regional Hospital, 310 F.2d 141, 143 (4th Cir. 1962). In Simkins, both hospitals excluded Negroes before the Court of Ap peals decision, but the district judge on remand entered an order enjoining the hospitals “ from denying plaintiff- patients and the class they represent, admission to, or conditioning or abridging the admission to, or use of the facilities and services of the defendant hospitals on the basis of race.” Order entered in No. C-57-G--62 (M.D. N.C. April 16, 1964). In Eaton, supra, where Negro physicians and patients complained of segregation in room and ward facilities rather than exclusion, a similar order was en tered (No. 932, E.D. N.C.). Appellants do not contend that the hospital cannot assign rooms on the basis of any legitimate medical or administrative reason; only that the practice of always assigning Negroes to rooms with other Negroes or assuming that nonracial placement would cause conflict is unlawful. 37 In its opinion, the district court concluded that appellants lacked standing to complain of the hosptial’s admitted pol icy of not putting Negro and white patients in the same room. The district court was concerned that, “ This is a complex matter which involves the delicate situation of the patient’s feelings as related to his general health.” The district court also noted that the patient segregation issue was before it in another case. But minor appellants Jack- son and Clark certainly are entitled to obtain relief against segregation of patients. The children, who suffer from a chronic disease, sickle-cell anemia,18 have been treated at Riverside in the past on numerous occasions (27a), and a parent of the Jackson child desires to use its modern facilities to obtain treatment from Dr. Cypress should future hospitalization be necessary. The district court stressed the fact that, “No witness has testified that he ever sought admission to a room occupied by a person of another race.” The court noted, however, that “ Riverside concedes that its practice is not to assign Negro and white patients to the same room,” and it was admitted that both Negro minors had been treated at Riverside (27a). Thus, the court concluded that Riverside’s admitted policy of patient segregation should not be enjoined because appellants did not explicitly testify that they requested relief. The court’s position on this issue is clearly shown in its extensive colloquy with coun sel (211-18a). The court asked counsel whether courts are designed “for social reform;” whether the hospital’s policy equals “discrimination per se;” whether plaintiff’s lawyer, or Dr. Cypress, or Dr. Scott, or Mrs. Wright was “com plaining” of the practice. It is submitted that the hospital’s confessed policy of racial segregation and the likelihood of injury to appel 18 The anemia is a result of excessive red cell destruction. Prognosis is poor. Merck Manual of Diagnosis and Therapy, 10th Ed., 1961. 38 lants makes such testimony a needless formality. First, it may be fairly inferred from the record as a whole and especially the subscribed complaint that appellants object to segregation of patients. Second, it is plain in light of hospital policy, that both minor appellants were subjected to racial segregation when treated at Riverside (27a, 190a), and have standing Rackley v. Orangeburg Regional Hos pital, 310 F.2d 141, 143 (4th Cir. 1962). Third, it is clear that the children are likely to be segregated should they return to Riverside. Fourth, Negroes may sue as a class to enjoin threatened class discrimination even though no Negro specifically alleges that he was a victim of such discrimination, Evans v. Newton, 382 U.S. 296 (1966), (The Evans record reveals that no Negro in that case alleged that he or any other Negro had been the victim of racial discrimination. See Record, pp. 37-42, 62-63), Evers v. Dwyer, 358 U.S. 202, 204; Morrison v. Davis, 252 F.2d 102, 103 (5th Cir. 1958), Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963). Fifth, this Court has held in cases not materially different from the instant case that appellants are entitled to injunctive relief. Simkins v. Moses H. Cone Memorial Hospital, supra; Eaton, supra; Rackley, supra. Sixth, Negro doctors, entitled to staff admission, clearly need not subject their patients to seg regation, Griswold v. Connecticut, 381 U.S. 479, 481. An instructive decision is Potts v. Flax, 313 F.2d 284, 288-290 (5th Cir. 1963), where it was held that desegrega tion suits are “directed at the systemwide policy of racial segregation,” and that direct proof of intention to obtain particular relief is unnecessary, it being implicit in the circumstances of the litigation. There, two adults suing on behalf of their children brought suit to desegregate the Forth Worth, Texas public schools. One testified that he was bringing the suit for his own children and not for 39 other Negro children and the testimony of the other parent was silent on the question. The district court and the court of appeals both found class relief proper. “By the very nature of the controversy, the attack is on the un constitutional practice of racial discrimination. Once that is found to exist, the Court must order that it be discon tinued. Such a decree, of course, might name the suc cessful plaintiff as the party not to be discriminated against. But that decree may not—either expressly or impliedly—affirmatively authorize continued discrimina tion by reason of race against others.” In light of the admitted policy of segregation and the obvious desires of Negro physicians and patients to end all discrimination to which they may be subject at the hospital, injunctive relief against compulsory segregation of patients is clearly appropriate. CONCLUSION W herefore, fo r the foregoin g reasons, plaintiffs pray that the judgm ent below be reversed. Respectfully submitted, J ack Greenberg J ames M. Nabrit, III M ichael Meltsner 10 Columbus Circle New York, New York P hilip W alker 648 25th Street Newport News, Virginia Attorneys for Appellants Conrad K. H arper Of Counsel MEILEN PRESS INC. ~ N. Y.