Shuttlesworth v Birmingham AL Brief for Respondent
Public Court Documents
October 1, 1965

44 pages
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Brief Collection, LDF Court Filings. Flagler Hospital, Inc. v. Hayling Brief for Appellees, 1965. 4dc0cae4-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/47e55f9e-2fa8-41d8-913a-bb784a02007a/flagler-hospital-inc-v-hayling-brief-for-appellees. Accessed August 19, 2025.
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I n t h e Bmteit $5>UteB ©curt of F oe t h e F if t h Cikcuit No. 21,968 F lagler H ospital, Inc. and Claude L. W eek s , Appellants, —v.— R obert B. H ayling, et al., Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA BRIEF FOR APPELLEES J ack Greenberg M ichael M eltsner Charles S t e p h e n R alston L eroy D. Clark 10 Columbus Circle New York, New York E arl M. J ohnson 625 West Union Street Jacksonville, Florida Attorneys for Appellees IN D E X Statement of Case ................-........................................ 1 A. General Facts About Hill-Burton Program ........ 4 B. The Florida State Plan ....................................... 5 C. Division of Federal and State Controls .............. 6 A rgum ent I. Flagler Hospital’s Contacts With Government Are Sufficient to Place It Under the Restraints of the Fifth and Fourteenth Amendments Against Racial Discrimination ......................... 12 II. Plaintiffs Have Standing to Obtain the Relief Granted by the Court Below............................ 24 III. The Maintenance of Racially Segregated Wards Is in and of Itself Such a Denial of Plaintiffs’ Constitutional Rights as to Require Relief, and the Relief Granted Was Proper........................ 28 Co n c l u s io n ...................................................................... 35 Certificate of Service..................................................... 36 A ppen dix ................... 37 Federal and Florida Statutes and Regulations Gov erning the Receipt of Hospital Funds ................. 37 Hill-Burton Act and Regulations ........................ 37 Civil Rights Act of 1964 .......................................... 38 Assurance of Compliance With the Department of Health, Education, and Welfare Regulations ........ 39 Florida Statutes Annotated: Public Health ........... 44 PAGE 11 T able of Cases page Allen v. County School Board of Prince Edward County, 198 F. Supp. 497 (E. D. Va. 1961) ...... ....... 17 Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963) 26 Bailey v. Patterson, 369 U. S. 31 (1962) ....... ............. 27 Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ...... 19, 22 Bass v. Hoagland, 172 F. 2d 205 (5th Cir. 1949), cert. denied 338 U. S. 816 (1949) ....... .............. ................. 24 Betts v. Easley, 161 Kan. 459, 169 P. 2d 831..............18,19 Board of Public Instruction of Duval County, Fla. v. Braxton, 326 F. 2d 616 (5th Cir. 1964) ......... ........... 27 Bolling v. Sharpe, 347 U. S. 497 (1954)........................ 15, 28 Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960) ....................... ..................................... 18,19, 22 Brown v. Board of Education, 347 U. S. 483 (1954) 16, 23, 28 Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961) .......................................... ...16,17, 20, 21, 22, 23, 28 Civil Bights Cases, 109 U. S. 3 (1883)............................ 16 Cooper v. Aaron, 358 U. S. 1 (1958) ............................ 16,17 Eaton v. Board of Managers of the James Walker Memorial Hospital, 261 F. 2d 521 (4th Cir. 1958), cert, denied 359 TJ. S. 984 (1959) ............................... 20 Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ....13,16,17, 20, 29 Flemming v. South Carolina Electric & Gas Co., 224 F. 2d 752 (4th Cir. 1955), appeal dismissed, 351 U. S. 901 (1956) ............. .......................................... .......... 22 Gayle v. Browder, 352 U. S. 903 (1956) ..................... 28 Goss v. Board of Education, 373 U. S. 683 (1963) .......... 28 I l l Hampton v. City of Jacksonville, 304 F. 2d 320 (5th Cir. 1962), cert, denied sub nom. Ghioto v. Hampton, 371 IT. S. 911 (1962) ........ .......... ....................................19, 20 Henderson v. United States, 339 U. S. 816 (1950) ...... 28 Hirabayashi v. U. S., 320 U. S. 81 (1943) .......... ....... 15 Hogan v. O’Neil, 255 U. S. 52 (1921) .......................... 13 Johnson v. Virginia, 373 U. S. 61 (1963) ..................... 28 McCabe v. Atchison Topeka and S. F. R. Co., 235 U. S. 151 (1914) ................................................... ................. 22 McLaughlin v. Florida,----- U. S .----- , 13 L. Ed. 2d 222 (1964) .................................................................. 28, 32 Ming v. Horgan, 3 Race Rel. L. Rep. 693 (Cal. Super. Ct. 1958) .................................................................... 18 Nasif v. United States, 165 F. 2d 119 (5th Cir. 1947) .... 34 Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) ..............25, 26 Public Utilities Commission v. Poliak, 343 U. S. 451 (1952)............................................... 17 Rackley v. Board of Trustees of Orangeburg Regional Hospital, 310 F. 2d 141 (4th Cir. 1962) ....... ......... 27, 30 Railroad Trainmen v. Howard, 343 U. S. 768 (1952) .... 18 Railway Employees Dept, v, Hanson, 351 U. S. 225 (1956) .......................................................................... 18 Russell C. House Transfer & Storage Co. v. United States, 189 F. 2d 349 (5th Cir. 1951) ......................... 34 Siinkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 376 U. S. 938 (1964) ________ 3, 9,12,13,14,15,17,18, 20, 21, 23, 29, 31 Smith v. Holiday Inns, 336 F. 2d 630 (6th Cir. 1964) ....17, 20 PAGE IV Steeley v. Louisville N. R.R. Co., 323 IT. S. 192 (1944) .... 18 Stell v. Savannah-Chatham County Board of Educa tion, 318 F. 2d 425 (5th Cir. 1963) ............................ 34 Syres v. Oil Workers Int’l Union, 223 F. 2d 739 (5th Cir. 1955), rev’d per curiam, 350 U. S. 892 (1955) .... 18 Thaxton v. Yaughan, 209 F. Supp. 106 (W. D. Va., 1962) , aff’d 321 F. 2d 474 (4th Cir. 1963) .............. 27, 31 United States v. City of Jackson, 318 F. 2d 1 (5th Cir. 1963) ................................................ ........................... United States v. City of Shreveport, 210 F. Supp. 708 (W. D. La. 1962), aff’d 316 F. 2d 928 (5th Cir. 1963) Virginia v. Hamm, 230 F. Supp. 156 (E. D. Va. 1964), PAGE aff’d ----- U. S .------ , 13 L. Ed. 2d 91 (1964) 29 Watson v. City of Memphis, 373 U. S. 526 (1963) ...... 28 Williams v. Hot Shoppes, 293 F. 2d 835 (D. C. Cir. 1961) ............................................................................. 23 34 34 F ederal S tatutes 42 U. S. C. >291 i> ........ 5 42 U. S. C. $291(a), (c) ......................................... 9 42 U. S. C. i291c(l)) ............... 7 42 U. S. C. §291d(7) ____ 9 42 U. S. C. §291d(9) ......... 9 42 U. S. C. (291 e ............ 6 42 U. S. C. §291e(b) .......... ........................................... 5 42 U. S. C. §291e(f) ......................................................29,37 42 U. S. C. §291e(f) 1958 Ed..................... ......5,10,11,13,15 42 U. S. C. >291 f(a) (4) (D) 1958 Ed........ ........................ 10 V PAGE 42 U. S. C. §291f(d) 1958 Ed........ 9 42 U. S. C. §291h............ 10 42 U. S. C. §2911i(a) 1958 Ed.............................. 10 42 U. S. C. §291i....... ......................... ........................... 8 42 U. S. C. §29In, ____ 8 42 U. S. C. §292g .................................... ................ ......8,10 The Health Research Facilities Act of 1956; 42 U. S. C. §§292 et seq..................... ................................. ......... 8 Title VI of the Civil Rights Act of 1964, 42 U. S. C. §§2000d et seq......... ............................... ............. ........5,11 44 U. S. C. §307 .......... ............... ........... .............. .......... 13 F ederal R egulations 41 C. F. R. §53-7 (V) ........... .......................................... 21 42 C. F. R. §53.11 ......................................................... 9 42 C. F. R. §53.13 ............ 10 42 C. F. R. §§53.71-53.80 ...................... 10 42 C. F. R. §53.111__ 10 42 C. F. R. §53.112.................. ......................5,10,11,15, 29 42 C. F. R. §53.124 ................ 7 42 C. F. R. §53.125 .......... 7 42 C. F. R. §53.127(b) ......... ....................... .......... . 10 42 C. F. R. §53.127(c) (l)-(9) ............. .................... . 6 42 C. F. R. §53.127 (d)(1) .................... 8 42 C. F. R. §53.127(d) (4) ...................... 10 42 C. F. R. §53.127(d) (5) .......................... 9 42 C. F. R. §53.127(d) (6) ..... 10 42 C. F. R. §53.128 ......................................... 6 42 C. F. R. §53.130 ......... 8 42 C. F. R. §53.134 ______ 7 VI 42 C. F. E. §§53.150(a), 53.151............ ............... ........... 7 42 C. F. R. §§53.131-53.155 ........................................... 7 S tate S tatutes F. S. A. §288.03(17) ........................................... ......... 5 F. S. A. §380.01(1) ...... ........................... ...................... 5 F. S. A. §§395.01 et seq......... ..................... ............... ..... 9 F. S. A. §§395.07, 395.09 ............................ ................... 7 Florida Licensing Act, Laws of Florida, 1947, c. 24091 9 Ot h er A utho rities H.R. 10041, Report No. 1274, Senate Labor and Public Welfare Comm., 88th Cong., 2nd Sess..... .............. . 4 110 Cong. Rec. 2398, daily ed. February 7, 1964 .......... 31 110 Cong. Rec. 6325, daily ed. March 30, 1964 ...... ...... 31 PAGE I n THE United #tatrn (Emixt of A ppals F or t h e F if t h C ircuit No. 21,968 F lagler H ospital, I n c . and Claude L. W eek s , — v .— Appellants, R obert B. H ayling, et al., Appellees. APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA BRIEF FOR APPELLEES Statement of Case Appellees are four Negro citizens of the United States and the State of Florida, residing in the City of St. Augus tine, Florida. Having been subjected to racial segregation as patients in Flagler Hospital they brought this action in the United States District Court for the Middle District of Florida, Jacksonville Division, on behalf of themselves and other Negroes similarly situated (R. 2). Appellant Flagler Hospital, Inc., is a non-profit corpora tion, organized and operating under the laws of the State of Florida (R. 9). It owns and operates Flagler Hospital, a charitable, tax exempt institution located in St. Augus tine (R. 7, 9). Claude L. Weeks is the Administrator of 2 Flagler Hospital. It is undisputed that in 1959, Flagler Hospital applied for and received Federal Funds under the Hill-Burton Act (Title VI of the Public Health Service Act of 1946; 42 H. S. C. §§291, et seq.) (E. 3, 7). The funds, in the amount of $629,545.95, were used for construction of additional hospital facilities and replacement or mod ernization of old facilities, the total cost of which wTas $1,398,991.00. In their complaint, plaintiffs alleged that they had been subjected to racial segregation as patients in Flagler Hos pital, that they intend to use the hospital in the future, and that they brought this action in their own behalf and as representatives of the class of Negro persons who would be similarly treated (E. 2). The complaint alleged that the hospital, . . . is pursuing a policy, practice, custom and usage of segregating Negro patients from white patients in treatment areas solely on the basis of race. Defendant also requires Negro student nurses to use dining and toilet facilities separately from white student nurses (E.3). The hospital in its answer admitted that plaintiffs were Negro residents of St. Augustine, that they had been patients at Flagler Hospital, and that as such they had been assigned rooms in the “Negro unit” of the Hospital. Defendants said that they were without knowledge as to whether plaintiffs intended to use the Hospital in the future and as to the allegation that plaintiffs represented other Negroes similarly situated (E. 7). The Hospital first de nied that Negro patients were segregated in “treatment areas” (E. 8), but then qualified the denial by limiting the term only to non-ward and non-room areas. Defendants did admit that Negro patients as a class were segregated 3 in rooms and wards in a “Negro unit” and that “waiting rooms and public restrooms are maintained for Negroes separate from waiting rooms and public restrooms main tained for white persons” (E. 8, 9). In addition, the Hos pital conceded that “separate dining rooms and toilet facil ities are maintained for Negro student nurses and em ployees of the Hospital.” On August 13, 1964 the District Court, in response to Negro plaintiffs’ motion for judgment on the pleadings, found that the Hospital admitted receipt of federal Hill- Burton funds and operation of “segregated dining rooms and toilet facilities for Negro student nurses and employees and racially segregated rooms, wards and restrooms for Negro patients” (R. 13). The District Judge concluded that the Hospital’s admission of segregation and partici pation in the Hill-Burton program justified injunctive re lief under the theory of Simkins v. Moses II. Cone Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 373 IT. S. 938 (1964); and entered an order enjoining defen dants from continuing to operate the Hospital on a segre gated basis, and from “denying the Plaintiffs and the class they represent admission to, conditioning or abridging their admission to, or conditioning use of the facilities and services of, the Defendant Hospital, on the basis of race” (E. 14-16). Hill-Burton Program Flagler Hospital has a variety of contacts with govern ment as a result of its involvement in the Hill-Burton Hos pital construction program. In summary, it has received $629,545.95 in public funds; it received these funds as part of a “state plan” for allocation of hospital facilities which contemplated and authorized Flagler Hospital to provide segregated facilities for Negroes, which was so approved 4 by the Surgeon General of the United States under statu tory authorization; and it is subject to a complex pattern of governmental regulations and controls arising out of Hill-Burton participation. A. G eneral Facts A b o u t H ill-B u rto n P ro g ra m The Hill-Burton program requires that states wishing to participate must inventory existing facilities to deter mine hospital construction needs and develop construction priorities under federal standards. State agencies are des ignated to perform this function and to adopt state-wide plans to be submitted for the approval of the Surgeon General of the United States. The Act establishes grants of federal funds for construction of new or additional facili ties for governmentally owned hospitals and voluntary non profit hospitals. In 1964, the Hill-Burton program wras expanded to apply to hospital modernization, long-term care facilities and area planning by the “Hospital and Medical Facilities Amendments of 1964.” Public Law 88- 443, 78 Stat. 447. The “Amendments,” which did not modify the basic Hill-Burton structure, are summarized in the Report to accompany H. R. 10041, Report No. 1274, Senate Labor and Public Welfare Comm., 88th Cong., 2nd Sess. In the first seventeen years of the program (1947-1964), approximately $2.1 billion of federal funds were approved for such projects. Slightly more than half of the total went to voluntary nonprofit hospitals. In the same period state and local funds (governmental and nongovernmental) to taled about $4.6 billion; thus, the federal share of Hill- Burton projects was about thirty per cent of their total cost. About 311,000 additional hospital beds were made available by the program.1 It is generally agreed that “the 1 See Report to Accompany H. R. 1004, Report No. 1274, Senate Labor and Public Welfare Comm., 88th Cong., 2nd Sess. 5 program has had a marked effect in raising State licensing standards and in improving the design, maintenance and operations of health facilities in every state.” 2 The allotment of federal funds among the states is de termined by a mathematical formula based on population and per capita income (42 U. S. C. §291b).3 The “federal share” of costs of particular projects within a state is gov erned by federally approved state plans (42 U. S. C. §291e (b))- Until 1964 when the Act was amended to eliminate refer ence to discrimination in light of Title VI of the Civil Rights Act of 1964, 42 U. S. C. §§2000d, the Surgeon Gen eral was authorized to permit state plans to meet the racial non-discrimination requirement of 42 U. S. C. §291e(f), 1958 ed., by planning separate facilities for “separate pop ulation groups” (42 C. F. R. §53.112). When state plans were submitted on this basis (as was the Florida Plan (R. 7)), the state and the Surgeon General were permitted to waive the requirement that facilities built under the Act “be made available without discrimination on account of race, creed or color, to all persons residing in the area to be served by that facility” (42 C. F. R. §53.112; see also, §53.111). B. The Florida State Plan In Florida, the state agency authorized to administer the Hill-Burton program is the Florida Development Commis sion (F. S. A. §380.01(1)). The Commission is authorized to prepare and revise a state plan for hospital facilities complying with the provisions of §291d of the Hill-Burton Act (F. S. A. §288.03(17)). 2 Ibid. 3 Citations are to 42 U. S. C. 1964 ed. unless otherwise indicated. Citations to the Code of Federal Regulations (C. F. R.) are to the 1962 revision of the Public Health Service Regulations unless otherwise indicated. 6 C. D ivision o f F ederal and S ta te C ontro ls The overall plan of the Hill-Burton program reflects a division of power and responsibility between federal and state governments for control and supervision of various matters affecting participating hospitals. The following description of the statutory and regulatory framework applicable to defendant hospital divides the provisions into seven categories: (1) controls over construction contracts and the construction period; (2) controls over details of hospital construction and equipment; (3) controls over future operation and status of hospitals; (4) controls over details of hospital maintenance and operation; (5) control of size and distribution of facilities; (6) rights of project applicants and state agencies; and (7) regulation of racial discrimination. The following is designed to enumerate and describe the statutes and regulations which are too lengthy conveniently to be set out in full. 1. Controls over construction contracts and the con struction period. (Federally imposed rules.) The Surgeon General is authorized by 42 U. S. C. §291e to enforce certain requirements. Applicable regulations are in 42 C. F. R. §53.127(c) (l)-(9 ),4 5 and in §53.128.6 4 To briefly summarize the requirements, hospitals must give assurances that: (1) “fixed price” construction contracts will be used, with competitive bidding and awards to the lowest respon sible bidder; (2) construction laborers will be paid federally prescribed minimum wages; (3) contracts will provide against “kick-backs” ; (4) bidding advertisements will await the Surgeon General’s approval of final drawings and specifications; (5) Sur geon General must approve of any contracts in excess of approved costs; (6) contractors agree to furnish performance bonds and insurance; (7) contract changes increasing costs must be approved by Surgeon General; (8) Surgeon General and State agency will have access to inspect work during progress; and (9) competent architects and engineers supervise construction work. 5 This provision governs the details of installment payments and provides for State agency inspection of work and certification that federal payments are due. 7 2. Control over details of hospital construction and equipment. (Federal minimum standards, and allowance for states to impose higher standards.) The Act authorizes the Surgeon General to prescribe “General standards of construction of hospitals and equip ment for facilities of different classes and in different types of location” (42 U. S. C. §291c(b)). The Surgeon General has adopted detailed regulations—Subpart M of the Public Health Service Regulations, “General Standards of Con struction and Equipment” (42 C. F. R. §§53.131 to 53.155). He has provided that plans and specifications for each project must be in accord with them (42 C. F. R. §53.125). In Florida, additional standards for hospital physical facil ities are authorized by F. S. A. §§395.07, 395.09, enacted in order to permit the State to participate in the Hill- Burton program, see infra, p. 9. The federal construction and equipment standards are designed “to insure properly planned and well constructed hospital[s] . . . which can be maintained and efficiently operated to furnish adequate service” (42 C. F. R. §53.131).6 3. Control of future status and operations of hospitals. (Federal requirements.) 6 The federal standards of Subpart M are so detailed that they can be described here only in very general terms as regulating hos pital sites, the departments required in hospitals and the type of facilities to be available in each department, and other require ments for all hospitals. There is detailed description of the types, sizes, locations, contents, arrangements, equipment and other char acteristics of almost every hospital area. To illustrate the detail, in all hospitals there are required door widths, corridor widths, stair widths, elevator standards, and rules pertaining to laundry chutes, nurses call systems, fire safety, ray protection, radioisotopes, x-ray equipment, ceiling heights, insulation, parking space, and floor, wall, and ceiling finishes (42 C. F. K. §§53.150(a), 53.151). See the detailed regulation of each general hospital department, 42 C. F. R. §53.134. The Act provides that if within 20 years after completion of a project a hospital is sold to anyone who is not qualified to file an application under the Act or is not approved by the State agency, or if the hospital ceases to be “nonprofit,” the United States can recover a proportionate share of its grant to the hospital (42 U. S. C. §291i). The State agency is required to give notice of any such changes of status (42 C. F. E. §53.130). In addition, the State agency is required to certify that an application “contains reasonable assurance as to title, payment of prevailing rates of wages, and financial support for the non-federal share of the cost of construction and the entire cost of maintenance and operation when com pleted” (42 C. F. R. §53.127(d)(l)). Hospitals are required to submit proposed operating budgets and other financial data relating to the two year period following completion of a project “to assure the availability of funds for main tenance and operation” (id.). 4. Control over details of hospital maintenance and oper ation. (State control of operations required by federal law.) The Hill-Burton Act has a provision entitled “State control of operations” which denies federal officers “the right to exercise any supervision or control over the admin istration, personnel, maintenance, or operation” of facili ties receiving grants, “except as otherwise provided” (42 U. S. C. §291m).7 But, the Act says that State Plans must “provide minimum standards (to be fixed in the discretion of the State) for the maintenance and operation of hos 7 Another slightly different provision, 42 U. S. C. §292g, relates only to research facilities aided under another law (“The Health Research Facilities Act of 1956” ; 42 U. S. C. §§292 et seq.) and does not apply to hospitals under Hill-Burton. 9 pitals” which receive Federal aid (42 U. S. C. §291d(7)).8 No federal grants may be allotted to any state which does not enact “legislation providing that compliance with min imum standards of maintenance and operation shall be re quired . . . ” (see 42 U. S. C. §291f(d) 1958 ed.). Federal regulations require the State agency to certify that each project application “contains an assurance that the ap plicant will conform to the State standards for operation and maintenance . . . ” (42 C. F. E. §53.127(d) (5)). Accordingly, after the passage of the Hill-Burton Act, Florida enacted a Hospital Licensing and Regulation Act (F. S. A. §§395.01 et seq.) authorizing the adoption of regulations governing hospital maintenance, operation, and inspection and requiring all hospitals to obtain a license. The Hill-Burton Act set an initial deadline of July 1, 1948, for states wishing to participate to enact such requirements (42 U. S. C. §291f(d) 1958 ed.), and Florida enacted its Licensing Act in 1947 (Laws of Florida, 1947, c. 24091). 5. Size and distribution of facilities. (Federal and State control.) The Act provides for federal decision as to the number of general hospital beds and other facilities required to pro vide “adequate facilities” in a State, for general methods of distribution in areas of a State, and for the general manner in which a State agency shall determine priorities of projects based on relative need (42 IT. S. C. §291c(a), (c)). State allowances in terms of number of beds per thousand population have been fixed by regulation (42 C. F. E. §53.11), as have the methods to be used by State 8 “These provide in detail for the management of hospitals under general headings such as administration, clinical services, auxiliary- services, nursing service and food service.” Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959, 964 (4th Cir., 1963). 10 agencies in distributing hospitals in a State (42 C. F. R. §§53.12, 53.13). Federal standards governing the state agencies’ determination of the priority of projects are set out in 42 C. F. R. §§53.71 to 53.80. See also 42 C. F. R. §53.127(b), and 42 C. F. R. §53.127(d)(6). 6. Rights of project applicants and State agency. (Fed eral requirements.) A project applicant is granted the right to “a fair hear ing before the State agency” if “dissatisfied with any action of the State agency regarding its application” (42 C. F. R. §53.124; see 42 U. S. C. §291d(9)). The Act provides that before the Surgeon General may withhold payments for any project, the State agency shall be accorded a hearing by the Surgeon General (42 U. S. C. §291g). A State agency dissatisfied with action of the Surgeon General on a project application may obtain re view of his decision in the United States Court of Appeals for the Circuit (42 U. S. C. §291h). 7 7. Regulation of racial discrimination. (States formerly allowed to plan racial separation as exception to federal non-discrimination requirement.) Until the 1964 “Amendments,” the Hill-Burton Act pro hibited racial discrimination in general terms, providing that State Plans “shall provide for adequate hospital facil ities for the people residing in a State without discrimina tion on account of race, creed or color” (42 U. S. C. §291e(f) 1958 ed.). Both state plans (42 U. S. C. §291f (a) (4) (D) 1958 ed.) and project applications (42 U. S. C. §291h(a) 1958 ed.) were subject to the nondiscrimination require ment. The parallel regulations are 42 C. F. R. §§53.111, 53.127(d)(4). 11 However, the Act authorized the Surgeon General to make regulations permitting State Plans to provide an ex ception to the racial nondiscrimination rule by establishing separate hospital facilities for separate population groups if there is “equitable provision” for each group in the area (Title 42 U. S. C. §291e(f) 1958 ed.). The Surgeon General promulgated such a regulation (42 C. F. R. §53.112), per mitting the State agency to waive assurances of nondis crimination from a hospital if the State Plan otherwise makes equitable provision for each group, and this finding is approved by the Surgeon General.9 It also includes the Surgeon General’s standard for determining if “equitable provision” is made for such groups (id.). When the 1964 “Amendments” to the Hill-Burton pro gram were enacted reference to discrimination was elim inated apparently because such a provision would duplicate Title VI of the Civil Rights Act of 1964, 42 U. S. C. §§2000d et seq. providing that “No person . . . be excluded from par ticipation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 9 See R. 7. 12 A R G U M E N T I. Flagler Hospital’s Contacts With Government Are Sufficient to Place It Under the Restraints of the Fifth and Fourteenth Amendments Against Racial Discrimina tio n . The District Court found Flagler Hospital subject to constitutional restraints against racial discrimination on the basis of the hospital’s admission that it received ap proximately $629,000.00 from the United States for con struction of additional facilities and replacement and mod ernization of old facilities (R. 8) and on the authority of ■Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied 376 U. S. 938, holding hos pitals receiving federal funds under the Hill-Burton pro gram forbidden to discriminate. The Hospital urges that the District Court erred for the reason that (1) the Simkins decision, supra, does not apply to the present ease, and (2) if applicable should not be followed by this Court. The Hospital seeks to distinguish the Simkins decision on the ground that a more detailed record was before the Fourth Circuit in that case, but such an argument misses the mark. Admission of Hill-Burton participation by Flag ler Hospital placed all material facts before the District Court, for, in Simkins, the Court of Appeals found two nonprofit hospitals subject to the Fifth and Fourteenth Amendments because they received federal funds “as inte gral parts of comprehensive, joint, or intermeshing state and federal plans or programs designed to effect a proper allocation of available medical and hospital resources” on a 13 nationwide and statewide basis, 323 F. 2d at p. 967. The operation of the Hill-Burton program is set forth in federal and Florida statutes and regulations promulgated by the Surgeon General of the United States, all of which are always before a court of the United States.10 (Plaintiffs have attempted to summarize the operation of the Hill- Burton program in the statement, supra, pp. 3-11. An admirable description appears in the opinion of the Court of Appeals in Simkins, 323 F. 2d at pp. 962-965.) Significantly, the Hospital fails to indicate what facts relied upon in Simkins are not present here. The Hospital makes the assertion11 that the court below did not consider whether the Florida programmed exclusion of certain “pop ulation groups” from Flagler Hospital pursuant to 42 U. S. C. §291e(f) 1958 ed. This statement is flatly contra dicted by the answer of the Hospital which explicitly admits federal funds were sought and obtained to operate separate facilities for separate population groups (R. 7). The record also refutes the claim that the district judge had noth ing before him “on the subject of the proportionate degree or extent of state or federal financial participa tion,” 12 for the answer clearly reveals the total cost of the project and the proportion provided by the United States (R. 8). The Hospital urges that the hospitals in Simkins received over $3 million in federal funds (1.2 million to one; 1.9 million to the other) where it has received a meager $629,000.00. But even assuming such a difference had some constitutional significance (see Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964)), it would be more than com 10 See, e.g., Hogan v. O’Neil, 255 U. S. 52, 55; the Surgeon Gen eral’s Regulations are judicially noticeable by statute, 44 U. S. C. §307. 11 Appellants’ Brief, p. 23. 12 Ibid. 14 pensated by the fact that one of the Simkins hospitals re ceived only 17.2% of the total cost of its projects from the federal government. The funds received by Flagler account for about 45% of the total construction costs. The Simkins decision rests on an appraisal of the hospital construction program created by the Hill-Burton Act and Regulations. Indeed, it is clear that the Fourth Circuit relied on the general character of the statutory scheme and not its effect on a particular hospital: “ ‘ . . . emphasis on the creation of a state-wide system of hospitals for the pro vision of hospital service to all the people of the state [which] indicates that the Hill-Burton program was not limited to the granting of financial aid to individual hos pitals (emphasis in original).’ ” 18 An alternative ground of decision in Simkins—that dis crimination was sanctioned by federal law—requires for its application to defendant nothing but the admission of Flagler Hospital that federal funds were received “pur suant to an application approved by the Surgeon General of the United States which provided: “the requirement of nondiscrimination has been met because this is an area where separate facilities are provided for separate population groups and the state plan otherwise makes equitable provision on the basis of need for facilities and services of like quality for each such population group in the area” (R. 7). 13 13 “ ‘It shows rather a congressional design to induce the states upon joining the program to undertake the supervision of the con struction and maintenance of adequate hospital facilities through out the territory. Upon joining the program a participating state in effect assumes as a state function the obligation for planning for adequate hospital care. And it is, of course, clear that when a state function or responsibility is being exerted, it matters not, for Fourteenth Amendment purposes, that the . . . [institution actually chosen] would otherwise be private: the equal protection guarantee applies.’ ” 323 F. 2d at 968. 15 Here, as in Simkins, the record clearly establishes that “the challenged discrimination has been affirmatively sanc tioned by both the state and the federal law and regula tions, 42 U. S. C. A., §291e(f) [1958 ed.]; 42 C. F. K. §53.112.” Simkins, supra, 323 F. 2d at 968. The decision of the Court of Appeals for the Fourth Circuit supports the judgment of the district judge. So does the denial by United States Supreme Court of timely petition for certiorari to review that decision, 376 U. S. 938. While denial of certiorari is not always accorded weight as precedent, it is quite evident that the Supreme Court’s failure to review the Simkins decision is of great significance, for by refusing to grant the writ the Court upheld a declaration of the unconstitutionality of an Act of Congress.14 The Fourth Circuit decision and the denial of certiorari “occasioned a reevaluation” of the Act by its Administrator and repeal of regulations permitting “sep arate but equal” facilities to be programmed, 42 C. F. E. §53.112 (filed May 18,1964). The holding in Simkins that the state and federal gov ernments are significantly involved in the conduct of Hill- Burton hospitals such as to invoke the restraints against racial discrimination of the Fifth and Fourteenth Amend ments to the Constitution is clearly correct. Decisions of the United States Supreme Court leave little doubt that such governmental action results in the application of the due process clause of the Fifth Amendment,15 and the due process and equal protection clauses of the Fourteenth 14 The strength of the decision is further attested by the inter vention of the United States in support of the position of Negro physicians and patients. 15 Bolling v. Sharpe, 347 U. S. 497; Hirabayashi v. U. S.. 320 U. S. 81. 16 Amendment.16 Racial discrimination is constitutional only when “unsupported by state authority in the shape of laws, customs, or judicial, or executive proceedings” or when “not sanctioned in some way by the state.” 17 Discrim ination is forbidden when the state participates “through any arrangement, management, funds, or property” 18 or when the state places its “power, property or prestige” behind the discrimination.19 In this case, racial segregation was explicitly authorized by a federal statute. The discriminatory practices have been approved by agencies and officials of Florida and the United States (R. 7; see supra pp. 10, 11). A large amount of public funds have been expended by government to sup port the hospital which in turn has submitted to a compre hensive pattern of state and federal controls. Florida has granted the hospital the power to operate and the privilege of receiving federal aid. The hospital is aided by the state because it fulfills a public function which the state would be obliged to perform under its Hill-Burton responsibility if the hospital did not. The interrelation of these factors creates a relationship of “benefits mutually conferred” sufficient to invoke the Constitution. Burton v. Wilmington Parking Authority, 365 U. 8 . 715, 724. First. The federal grant in excess of $600,000.00 to Flagler Hospital, distributed in accordance with state and federal priorities and plans is obviously substantial. The tax exempt status of the hospital increases the financial subsidy granted by the government, cf. Burton v. Wilming ton Parking Authority, 365 U. S. 715, 724; Eaton v. Grubbs, 16 Brown v. Board of Education, 347 U. S. 483; Cooper v. Aaron, 358 U. S. 1. 17 Civil Bights Cases, 109 U. S. 3,17. 18 Cooper v. Aaron, 358 U. S. 1, 4,19. 19 Barton v. Wilmington Parking Authority, 365 U. S. 715, 725. 17 329 Fed. 710, 713 (4th Cir. 1964); Allen v. County School Board of Prince Edward County, 198 F. Supp. 497, 503 (E. D. Ya. 1961). Thus there is government participation through an “arrangement,” “funds,” and “property” call ing for application of constitutional principles against dis crimination. Cooper v. Aaron, 358 U. S. 1, 4, 19. It would be difficult to know what the Cooper v. Aaron principle can mean if it does not embrace contribution of over $600,000.00 amounting to 45% of the cost of tax exempt property. Second. Hill-Burton hospitals are subject to a variety of governmental controls by virtue of and participation in the federal-state hospital program. The character of the physical facilities and hospital equipment is closely con trolled by federal and state governments. See, supra, pp. 6, 7. The effect of this regulation of construction and equipment on the future operations of the hospital is mani fest. Requiring that a hospital build and arrange a par ticular department and stock it with approved equipment obviously determines the character of the service the hos pital will render in the future. Beyond this, the Hill-Burton Act requires that the states directly regulate the details of hospital maintenance and operation in order to participate in the Hill-Burton program. Florida has had to undertake and formulate a licensing and regulatory scheme in order to participate in the program. See, supra, p. 9. The control exercised by government over the construc tion and planning of Hill-Burton hospitals gives rise to constitutional responsibility. See Burton v. Wilmington Parking Authority, 365 U. S. at 723-25; Simkins, supra, at 323 F. 2d 966, 967; Smith v. Holiday Inns, 336 F. 2d 630, 634 (6th Cir. 1964). See also Public Utilities Commission v. Poliak, 343 U. S. 451, 462.20 20 There the Supreme Court found sufficient governmental re sponsibility to require decision of a Fifth Amendment due process 18 The hospital in this ease is also like the certified labor unions required to represent all persons within a particular bargaining unit without discrimination. As labor organiza tions receive substantial power and benefits by having been licensed and regulated under federal law, the Supreme Court has found that serious Fifth Amendment due process ques tions would arise if the federal statutes involved were not construed to require nondiscrimination.21 Hill-Burton hos pitals are licensed and controlled by government and have received substantial benefits under a comprehensive federal scheme for regulation of an area of national importance to much the same extent as labor organizations. Third. The licensing process enacted by Florida to com ply in Hill-Burton requirements, in which Florida grants these hospitals the power to operate after insuring com pliance with standards of operation, is another factor com pelling the conclusion that we have “state action” here, Simkins, supra, at 968. See Boman v. Birmingham Transit claim where the principal governmental involvement was decision by a regulatory body to do nothing about private activity (radio broadcasts on streetcars) it could have prohibited. The Hill-Burton Act and regulations demonstrate that the Flager Hospital is regu lated by government in as significant a degree as the transit com pany was in Poliak, and this ease has elements that the Poliak case did not, e.g., financial support and statutory authorization of racial segregation among others. 21 Steele v. Louisville N. B.B. Co., 323 U. S. 192 (Railway Labor Act) ; Syres v. Oil Workers In t’l Union, 223 F. 2d 739 (5th Cir. 1955), rev’d per curiam, 350 U. S. 892 (Labor Management Rela tions Act) ; Bailway Employees Dept. v. Hanson, 351 U. S. 225, 232, n. 4. In Railroad Trainmen v. Howard, 343 U. S. 768, Negroes in a separate bargaining unit were entitled to enjoin a white union from striking to eliminate the Negroes’ jobs. See, Betts v. Easley, 161 Kan. 459, 169 P. 2d 831 (holding certified labor union with responsibilities under federal law and receiving benefits therefrom subject to Constitution). Cf. Ming v. Horgan, 3 Race Rel. L. Rep. 693, 699 (Cal. Super. Ct. 1958) (persons accepting federal mort gage guarantee bound by Fifth Amendment). 19 Co., 280 F. 2d 531, 535 (5th Cir. 1960), holding that because a bus company was performing a service for the public necessity and convenience, by having a franchise to operate on the public streets of Birmingham, “the acts of the bus company in requiring racially segregated seating were ‘state acts.’ ” 22 Flagler Hospital performs services for the public at least as significant as those of a local bus com pany. Fourth. The funds paid to these hospitals under the Hill-Burton Act are to be used solely for carrying out the project as approved by the State and Surgeon General.23 If the hospitals sell or transfer ownership within twenty years to anyone not qualified under the Act to apply for funds or not approved by the state agency, or if the hos pitals cease to be “nonprofit,” the United States is author ized to recover the present value of the federal share of the approved project. These provisions operate to insure against misuse of federal funds in the manner of a re verter retained by government to insure particular use of property. This Court has found retention of such an in terest in property sold by a municijjality to private persons sufficient to invoke constitutional restraints. In Hampton v. City of Jacksonville, 304 F. 2d 320 (5th Cir. 1962), cert, denied sub nom. Ghioto v. Hampton, 371 U. S. 911, the City sold two municipal golf courses with the deeds providing that the City would regain title if the properties were used for other purposes. This was the only connection retained by the City. This Court found that “conceptually it is ex tremely difficult if not impossible to find any rational basis of distinguishing the power or degree of control, so far as relates to the State’s involvement between a longterm lease 22 See also, Baldwin v. Morgan, 287 F. 2d 750, 755 (5th Cir. 1961) ; Betts v. Easley, 161 Kan. 459,169 P. 2d 831. 23 See supra, pp. 7, 8. 20 for a particular purpose with the right of cancellation . . . if that purpose is not carried out” (as in Burton v. Wilming ton Parking Authority, 365 U. S. 715), “and an absolute conveyance of property subject. . . to the right of reversion if property does not continue to be used for the purpose prescribed” (304 F. 2d at 322). On this reasoning this Court declined to follow the Fourth Circuit’s decision in Eaton v. Board of Managers of the James Walker Memorial Hos pital, 261 F. 2d 521 (4th Cir. 1958), cert, denied 359 IT. S. 984, saying that as Eaton was decided prior to Burton, its holding probably would not be followed. This prophecy proved correct when the Fourth Circuit, in subsequent liti gation, on the authority of Hampton and Simkins, dis approved of its first Eaton decision. Eaton v. Grubls, 329 F. 2d 710 (4th Cir. 1964).24 Fifth. Under Hill-Burton the number and distribution of hospital beds in an area is decided by state and federal governments. See supra, pp. 9, 10. Once funds are granted bringing an area up to the standard of hospital beds con sidered adequate for the population, no further beds can be programmed. If Florida had chosen to build publicly owned hospitals in St. Augustine, the Flagler Hospital could have been denied all federal aid. On the other hand, the aid granted the hospital now prohibits the construction of duplicating city, county, or other nonprofit facilities with federal aid. Hospitals participating have, therefore, be come the chosen and exclusive instruments to carry out governmental objectives. “Just as the Court in the Parking Authority Case25 attached major significance to ‘the ob vious fact that the restaurant is operated as an integral part of a public building devoted to a public parking ser 24 The Sixth Circuit has also followed Hampton. See Smith v. Holiday Inns, 336 F. 2d 630 (6th Cir. 1964). 25 Burton v. Wilmington Parking Authority, 365 U, S. 715, 724. 21 vice,’ . . . we find it significant here that the defendant hospitals operate as integral parts of joint or intermeshing state and federal plans or programs designed to effect a proper allocation of . . . hospital resources.” Simkins, su pra, at 967. And “when a state function or responsibility is being exercised, it matters not for Fourteenth Amendment purposes that the . . . [institution actually chosen] would otherwise be private.” Id. at 968.26 Sixth. In addition to the interrelations of the hospital and government as discussed above, an additional factor (present also in the Sim,kins case) compels the conclusion that the discrimination practiced is within the purview of the Constitution. This discrimination was affirmatively sanctioned by a federal statute and federal regulations and by a state executive decision to permit segregation in the St. Augustine area (E. 7; see supra, pp. 10, 11) which en abled Flagler Hospital to avoid giving an assurance not to discriminate as a condition of receiving funds. Florida was permitted to authorize or require segregation as long as it programmed other hospital facilities for Negroes in the St. Augustine area. The record reveals that Florida programmed such segregation in the area and that the Surgeon General approved an exemption from the general nondiscrimination clause for Flagler (E. 7). “It is settled that governmental sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with ‘state action.’ ” Simkins, supra, at 968. The principle enunciated in Mr. Justice Stewart’s con curring opinion in Burton v. Wilmington Parking Author ity, 365 U. S. 715, 726-27, supports this finding. In Burton, Justice Stewart read the Delaware law as “authorizing 26 Flagler Hospital refers to itself as a “private” institution but in order to be eligible for Hill-Burton funds a hospital must be a nonprofit, “community” facility. 41 C. F. R. §53-7 (V). 22 discriminatory classification based exclusively on color” (365 U. S. at 727) and found this sufficient to invalidate the law and reverse a decision denying an injunction against a restaurateur who excluded Negroes. Three dissenters (Justices Frankfurter, Harlan and Whittaker) agreed that a statute authorizing a nongovernmental entity to discrim inate would “indubitably” (365 U. S. at 727) and “certainly” (id. at 730) offend the Fourteenth Amendment and open up an “easy route to decision” (id. at 728). But they found the meaning of the Delaware law uncertain. The majority opinion in Burton did not discuss the issue.27 When individuals effect racial discrimination at the behest of a State, they become subject to the limitations applicable to the State themselves. Flemming v. South Carolina Electric & Gas Co., 224 F. 2d 752, 753 (4th Cir. 1955), appeal dismissed, 351 U. S. 901. A. railroad terminal company and a local bus company were enjoined from dis criminating in Baldwin v. Morgan, 287 F. 2d 750, 755 (5th Cir. 1961), and Boman v. Birmingham Transit Co., 280 F. 2d 531, 535 (5th Cir. 1960), where their discriminatory 27 McCabe v. Atchison Topeka and S. F. B. Co., 235 U. S. 151, 162 (1914), is based upon the same theory, holding that a Negro “might properly complain that his constitutional privilege has been invaded” if common carriers “acting in the matter under the au thority of a state law” denied Negroes sleeping car, dining car and chair car facilities. The only defendants in the case were a group of rail carriers who were authorized to discriminate by an Oklahoma law. Relief was denied only on the ground that complainants had not actually sought to use the railroads or to otherwise show that equitable intervention was necessary to protect the rights declared in the opinion. Here, as in McCabe, defendants are relieved of obedience to a general requirement of nondiscrimination (emanat ing in McCabe from the common law duty of carriers, and here from the underlying nondiscrimination rule of 42 U. S. C. §291e(f) 1958 ed.) by action of a State. In McCabe the state action was stat utory; here it is executive in the shape of the State’s program of separate facilities in the St. Augustine Area. 23 actions were taken under authority conferred by state and local laws.28 Flagler Hospital urges that the Simkins decision was wrongly decided because the Hospital accepted federal funds upon the assurance of federal and state officials that it could maintain certain racial policies. The court in Sim kins, however, gave an unanswerable reply to this conten tion when it held that: The defendants, owners of publicly assisted facili ties can stand no better than the collective body of southern voters who approved school bond issues before the Brown decision or private entrepreneurs who out fitted his restaurant business in the Wilmington Park ing Garage before the Burton decision. The voters might not have approved some of the bond issues if they had known that the schools would be compelled to abandon their historical practice of separation of races and the restaurateur might have been unwilling to venture his capital in a business on the premises of the Wilmington Parking Authority if he had antici pated the imposition of a requirement for desegregated service. # # # # # “We accord full weight to argument of the defen dants but it cannot prevail. Not only does the Consti tution stand in the way of the claimed immunity but there are powerful countervailing equities in favor of the plaintiffs. Racial discrimination by hospitals visits severe consequences upon Negro physicians and their patients.” (323 F. 2d at p. 970.)29 28 See Williams v. Hot Shoppes, 293 F. 2d 835, 845, 846 (D. C. Cir. 1961), where Judges Bazelon and Edgerton, in dissenting from the majority’s decision to abstain, urged that the action of persons required by law to enforce a segregation rule is state action within the reach of the Fourteenth Amendment. 29 See also Burton, supra, at 365 U. S. 726. 24 Racial discrimination by community hospitals is a matter of grave concern to Negro citizens. By financial contribu tion, and a complex pattern of controls, by authorizing the hospitals to do the work of government, and by affirmatively sanctioning racial discrimination, state and federal gov ernments have so involved themselves in the affairs of Hill-Burton hospitals as to compel the conclusion that such hospitals are forbidden to discriminate by the Constitution. II. Plaintiffs Have Standing to Obtain the Relief Granted by the Court Below. Plaintiffs accept the proposition cited by appellants that: On a motion for judgment on the pleadings the old rule obtains that the fact allegations of the answer are to be taken as true, but those of the complaint are taken as true only where and to the extent that they do not conflict with those of the answer. Bass v. Hoag- land, 172 F. 2d 205, 207 (5th Cir. 1949), cert, denied 338 TJ. S. 816. In paragraph IV of their complaint, plaintiffs alleged that they had “been subjected to racial segregation as patients in Flagler Hospital” (R. 2). The Hospital did not deny this allegation, but rather admitted that, “as such patients they were assigned rooms in the Negro unit of the Hospital” (R. 7). Further, in paragraph VII, plaintiffs alleged that the Hospital “is pursuing a policy, practice, custom and usage of segregating Negro patients from white patients in treat ment areas solely on the basis of race” (R. 3). At first the Hospital appeared to deny this allegation, saying that, “It is untrue that the defendant Flagler Hospital pursues a 25 policy and practice of segregating Negro patients from white patients in treatment areas.” Immediately, however, the hospital indicated that it was not denying segregation but only using the term “treatment areas” in an unwar- rantedly restrictive sense,30 limiting it to emergency, de livery, operating, recovery, examining rooms, and labora tory, X-ray and physical therapy rooms: It is true also that rooms and wards for Negro pa tients are maintained in a separate unit from the unit in which rooms and wards for white patients are main tained and that waiting rooms and public rest rooms are maintained for Negroes separate from the waiting rooms and public rooms maintained for white per sons (E. 8-9). Taking the hospital’s answer as a whole, it has admitted: (1) that plaintiffs are Negroes and have been patients at Flagler Hospital; (2) that as Negro patients they were assigned rooms in the Negro unit of the hospital; and (3) that Negro patients as a class are segregated into a unit separate from that in which white patients are placed. Therefore, since the answer demonstrates that Negroes as a class are subjected to segregation, and that plaintiffs are members of the class, the district judge was clearly justified in finding that the suit was properly brought as a class action. The case is closely analogous to Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963). There also the defendant entered a denial specifically directed to plaintiffs’ allegation that the 30 Neither in its answer nor in its brief does the Hospital attempt to give any reason for its contention that the term does not include hospital rooms and wards. The phrase has no technical legal mean ing, and in ordinary usage it means simply any and all places where patients are treated. Certainly patients receive treatment in wards and rooms as well as in the areas listed by appellants. 26 plaintiffs represented a class. However, the court looked to the rest of the answer and the complaint in order to determine the purpose of the suit. It was said: The peculiar rights of specific individuals were not in controversy. It was directed at the system-wide pol icy of racial segregation. It sought obliteration of that policy of system-wide racial discrimination. In various ways this was sought through suitable declaratory orders and injunctions against any rule, regulation, custom, or practice having any such consequences. The case, therefore, had those elements which are some times suggested as a distinction between those which are, or are not, appropriate as a class suit brought to vindicate constitutionally guaranteed civil rights. 313 F. 2d at 288-89. Similarly, the present suit has as its purpose not merely the assigning of individual plaintiffs to particular rooms or wards, but rather the ending of all practices that further the policy of hospital-wide racial discrimination against the class that plaintiffs admittedly represent, i.e., Negro pa tients. To paraphrase the court in Potts v. Flax, a hospital segregation suit “presents more than a claim of invidious discrimination to individuals by reason of a universal pol icy of segregation. It involves a discrimination against a class as a class, and this is assuredly appropriate for class relief.” 313 F. 2d at 289 n. 5.31 See also, Bailey v. Patter son, 323 F. 2d 201 (5th Cir. 1963). 31 The court in Potts further pointed out that class relief was virtually required because of the nature of the suit. There, as here, what was being attacked was the unconstitutional practice of racial discrimination. Once appellants admitted that segregated wards were maintained, the court below had to order that they be dis continued. Thus, even if it were technically error to treat the case as a class suit and enter such a decree, the error v7as harmless since the decree would have been the same if confined to individual plain tiffs. 313 F. 2d 289-90. 27 The hospital a ŝo attacks the propriety of the class action on the 'ground that plaintiffs had no standing to vindicate the rights of Negro student nurses to integrated facilities. Appellants, however, have misconstrued the nature and basis of appellees’ claim. These patients seek desegrega tion of all aspects of Flagler Hospital in their own right, and not as representatives of the nurses.32 Thus, the relief they seek is to be treated in the Hospital in an environment free from discrimination and distinc tions founded on race. ■ Once racial segregation has been found, the courts may render decrees designed to eliminate all aspects of such practices.33 The Fourth Circuit made this clear in Hockley v. Board of Trustees of Orangeburg Regional Hospital, 310 F. 2d 141 (4th Cir. 1962). There, Negro patients had been subjected to segregation in a hos pital waiting room. The court held that it was error for the district court to strike counts from the complaint alleging segregation in wurds since the plaintiffs were entitled to have all aspects of racial discrimination adjudicated. Cf. also Board of Public Instruction of Duval County, Fla. v. Braxton, 326 F. 2d 616 (5th Cir. 1964). 32 It is clear that the district judge regarded the matter in this light, since his order did not mention the student nurses, but was solely in terms of enforcing the rights of Negro patients (R. 16). 33 Since plaintiffs are seeking the end of all discriminatory prac tices in their own right, and in the name of other Negro patients, a class which they clearly represent, the cases of Bailey v. Patterson, 369 U. S. 31 (1962) and Thaxton v. Vaughan, 321 F. 2d 474 (4th Cir. 1963), cited by appellants, are not in point. 28 III. The Maintenance of Racially Segregated Wards Is in and of Itself Such a Denial of Plaintiffs’ Constitutional Rights as to Require Relief, and the Relief Granted Was Proper. A. The Hospital in its brief attacks the enjoining of the segregation of white and Negro patients without giving it an opportunity to prove that this policy could be justi fied.34 The simple answer to this argument is that a long line of decisions before and after Brown v. Board of Edu cation, 347 U. S. 483 (1954), have made it clear that state- supported segregation of the races cannot be justified.35 34 Appellants again raise and seem to attach some significance to their rather tortured definition of “treatment areas.” As shown supra, however, it is clear that segregation was pleaded and ad mitted. Likewise, the Hospital attempts in its brief to construct some mystery around the meaning of the word “unit” and complain that no proof was presented as to what is meant by it. However, it is obvious from the pleadings that in Flagler Hospital Negroes are placed in rooms and wards separate from those in which white patients are found and that similarly, separate rest rooms and waiting rooms are maintained. This means, quite simply, that whites and Negroes are segregated, and this fact is sufficient to entitle plaintiffs to relief. 35 E.g., Goss v. Board of Education, 373 U. S. 683 (pupil transfer plan) ; Watson v. City of Memphis, 373 U. S. 526 (public parks and playgrounds) ; Johnson v. Virginia, 373 U. S. 61 (courtrooms) ; Burton v. Wilmington Parking Authority, 365 U. S. 715 (restau rants in public buildings); Gayle v. Browder, 352 U. S. 903 (seat ing on buses) ; Bolling v. Sharpe, 347 U. S. 497 (federally sup ported schools) ; Henderson v. United States, 339 U. S. 816 (rail road dining cars). The language in McLaughlin v. Florida, ----- U. S. ----- , 13 L. Ed. 2d 222, cited by the Hospital, does not support its conten tion that racial segregation might be justified. The Court there only suggested that some kinds of classifications in state criminal laws might be supportable, but emphasized strongly that all racial clas- 29 That such is the case in hospital facilities was decided by the Fourth Circuit in Simkins v. Moses II. Cone Me morial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied 376 U. S. 938. In that ease, the Court struck down 42 U. S. C. §291e(f) 1958 ed. and 42 C. F. E-. §53.112, which permitted segregation in hospital facilities such as the appellants here seek to defend. Certainly the Fourth Circuit’s opinion means that such segregation is ipso facto unconstitutional, and cannot be supported. Thus, on remand, the district court issued the order quoted by the hospital in its brief and appendix enjoining the defendant hospitals from “condi tioning or abridging . . . use of the facilities . . . on the basis of race.” During the hearing on the issuance of the order Judge Stanley made clear that the appellate court’s opinion required the desegregation of wards as a matter of law when he said : I think now based on the judgment of the Court of Appeals that the order should carry into effect the idea, as we said for the sake of brevity, both hospitals have to be operated completely on a color-blind basis. I just say there can be no discrimination or segre gation because of race or color.36 Similarly, Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964), made it clear that the Fourteenth Amendment constituted sifications were suspect. And see the concurring opinion of Mr. Justice Stewart,----- U. S .------ , 13 L. Ed. 2d at 232. One of the few recent cases in which any sort of racially-oriented state action was upheld, Virginia v. Hamm, 230 F. Supp. 156 (E. D. Va. 1964), a f d ----- IT. S. — , 13 L. Ed. 2d 91 (1964), had nothing to do with segregation, but merely permitted the state to ask for the race of persons in compiling divorce statistics. At the same time the court struck down the asking of race on voting and property tax assessment records. 36 Hearing of April 16, 1964, Simians v. Moses H. Cone Memorial Hospital (M. D. N. C. C. A. C-57-G-62), Transcript p. 39. 30 an absolute prohibition on discriminatory practices in hos pitals. See also, Rachley v. Board of Trustees of Orange burg Regional Hospital, 310 F. 2d 141 (4th Cir. 1962). Title VI of the Civil Eights Act of 1964 supports the position that the Fourteenth and Fifth Amendments impose an absolute prohibition on racial segregation in hospitals receiving federal and state aid. Section 601 states: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be sub jected to discrimination under any program or activity receiving Federal financial assistance. In the regulations promulgated by the Department of Health, Education, and Welfare to enforce Title VI it is provided that: In the case of hospital construction grants the as surance [of compliance with Title VI] will apply to patients, to interns, residents, student nurses, and other trainees, . . . and will apply to the entire hospital for which, or for a part of which the grant is made, and to facilities operated in connection therewith. 45 C. F. R. 80.5 (e) (as amended 29 Fed. Register 16301, Dec. 4, 1964). The Department’s official explanation of its form for as surance of compliance states that this means that no dis tinction on the ground of race or color shall be made in making available the use of any room, dormitory, ward, or other space in the facility.37 The legislative history of Title VI also makes it clear that Congress believed that 37 See Question Number Four of the Explanation of H. E. W. Form No. 441, reproduced in Appendix, infra p. 41. 31 segregation of Negro and white patients in federally as sisted hospitals violated the constitution.38 The Hospital’s reliance on the decision in Thaxton v. Vaughan, 209 F. Snpp. 106 (W. D. Va. 1962), is misplaced. The Fourth Circuit affirmed the decision solely on the grounds that the particular plaintiffs did not have standing to challenge the practices of a nursing home of which none were patients or inmates. Indeed, the court took great pains to say: Our affirmance of the court’s decision is not to be construed as concurring in the court’s opinion that the medical reasons adduced by the defendants’ doctor, who was in charge of the nursing home, for de facto segregation of his aged and senile patients was suffi cient legal reason for denying any of those patients their constitutional right to unsegregated treatment. 321 F . 2d 474, 476 (4th Cir. 1963). Another flaw in the hospital’s argument that they were not given a chance to show that the segregation herein complained was justifiable on the grounds they now urge, is that the issue was not raised by the pleadings. It is 38 See, e.g., the remarks of Rep. Ryan of New York (“The denial of the best available medical care because of a patient’s color is in consistent with the most basic democratic principles. By passing Title VI Congress will make clear its intention that this practice [segregation within hospitals] cease.”) 110 Cong. Rec. 2398, daily ed. February 7. 1964, and of Sen. Humphrey, the Floor Manager of the bill ([‘Title VI would override the ‘separate but equal’ provi sions now in The Hill-Burton Act. The policy of the Title might be enforced here by requiring that hospitals receiving Federal construc tion grants under the Hill-Burton Act agree not to exclude or seg regate patients, or otherwise discriminate in their treatment of patients, because of race, color or national origin. . . . Any such discrimination is unconstitutional under the decision of the U. S. Court of Appeals for the Fourth Circuit. Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (C. A. 4, 1963) certiorari denied, March 2, 1964.”) 110 Cong. Rec. 6325, daily ed. March 30, 1964. j 32 clear that even in those limited number of cases where some sort of racial distinctions may be supportable, the burden to so plead and prove is on the party seeking to make the justification. Cf., McLaughlin v. Florida, ■—-— U. S. ----- , 13 L. Ed. 2d 222, 230-31. In their answer, however, appellants did not attempt to allege that segregation was proper for medical, health, or any other reasons. Their defense was based solely on the ground that the hospital was a private corporation and that therefore the execution of a policy of racial segrega tion could not constitute a violation of the constitutional rights of plaintiffs or their class (ft. 9). Thus, the district court had the power to decide the case according to its resolution of the issues presented to it. B. In its argument IV the Hospital claims that the only segregated facilities that had been admitted were those of Negro student nurses. However, in their answer they clearly admitted precisely the practices plaintiffs sought to have enjoined, i.e., the maintenance of separate rooms and wards for Negro patients and separate waiting rooms and public restrooms (E. 7, 8, 9).88 It was clearly on the basis of this admission that the district court found that there were racially segregated rooms, wards, and restrooms (E. 13) and ordered the Hos pital not to continue: 39 It is hard, in view of the clear language of their own answer, to understand appellants’ contention in their brief (p. 27) that they do not now and never did have any policy or practice of operating Flagler Hospital on the basis of racial discrimination, unless it stems from their definition of “treatment areas.” Again, the argu ment that they did not admit alleged discriminatory practices be cause of that definition is unsupportable. . . . to enforce the policy, practice, custom and usage of operating the Flagler Hospital on the basis of racial segregation (B. 14). Hence, the order, with the one possible exception dis cussed below, does no more than grant the relief dictated by the answer. The defendants admitted that they operated segregated rooms and wards, and that they therefore did condition the use of the facilities on the basis of race, and failed to make all of the services, facilities, accommoda tions, etc., available to Negroes on a non-segregated basis. These admitted practices the court could enjoin. The one part of the injunction that was not expressly sup ported by the pleadings was that enjoining the Hospital from denying plaintiffs’ admission to the Hospital. Con- cededly, Negroes have been admitted to the Hospital in the past. However, plaintiffs contend that the inclusion of the phrase is, at worst, harmless error, and is appropri ate to guarantee fully the relief to which plaintiffs are entitled. Plaintiffs seek to be treated by the Hospital on a non-segregated basis. In view of the past discriminatory practices of the Hospital it is possible that the same poli cies would be carried out by barring or conditioning the admission of Negroes. Thus, it was well within the discre tion of the court to render a decree broad enough to en sure its effectiveness. The injunction here was not overbroad or too general in its terms. Specific instances of segregation were alleged and admitted, and the district court based both its findings and order on them. The commands not to enforce the poli cies and practices of segregation, or denying Negro pa tients admission to or conditioning the use of the Hospital on the basis of race are clear and appropriate. In this Circuit similarly worded orders have been entered in nu 34 merous cases involving racial discrimination. See, e.g., United States v. City of Jackson, 318 F. 2d 1, 4 (5th Cir. 1963); United States v. City of Shreveport, 210 F. Supp. 708 (W. D. La. 1962), aff’d, 316 F. 2d 928 (5th Cir. 1963); ef., Stell v. Savanndh-Chatham County Board of Educa tion, 318 F. 2d 425 (5th Cir. 1963). Nasif v. United States, 165 F. 2d 119 (5th Cir. 1947), cited by the Hospital, involved a general injunction against violating a criminal statute. As the court there made clear, the reason that such an injunction is invalid is that it could result in punishment for the commission of a crime without providing the full safeguards of a regular criminal proceeding. Russell C. House Transfer and Storage Co. v. United States, 189 F. 2d 349 (5th Cir. 1951), is also not in point. There, this court struck down a decree enjoining the defendant in general terms not to violate the Interstate Commerce Act, without specifying with clarity the par ticular conduct proscribed. Here, no criminal or other statute is involved, and the particular practices prohibited are clear. There is no reason to believe that the defen dant hospital will have any difficulty complying fully with its mandate. 35 CONCLUSION For the foregoing reasons the judgm ent below should be affirmed. Respectfully submitted, J ack Greenberg M ich a el M eltsner Charles S t e ph e n R alston L eroy D . Clark 10 Columbus Circle New York, New York E arl M. J ohnson 625 West Union Street Jacksonville, Florida Attorneys for Appellees 36 CERTIFICATE OF SERVICE I hereby certify that a copy of Brief for Appellees was furnished by United States mail, air mail, postage prepaid to Chester Bedell, C. Harris Dittmar, and Robert P. Smith, Jr., 1520 Barnett National Bank Building, Jacksonville, Florida 32202, attorneys for appellants, this 11th day of February, 1965. Attorney for Appellees A P P E N D I X APPENDIX Federal, and Florida Statutes and Regulations Governing the Receipt of Hospital Funds H il l -B urton A ct and R egulations 42 U. S. C. §291e(f) [Repealed] 291e General regulations.—Within six months after the enactment of this title, the Surgeon General, with the ap proval of the Federal Hospital Council and the Secretary of Health, Education, and Welfare, shall by general regu lation prescribe— # # # # # (f) The State plan shall provide for adequate hospital facilities for the people residing in a state, without dis crimination on account of race, creed, or color, and shall provide for adequate hospital facilities for persons unable to pay therefor. Such regulation may require that before approval of any application for a hospital or addition to a hospital is recommended by a State agency, assurance shall be received by the State from the applicant that (1) such hospital or addition to a hospital will be made avail able to all persons residing in the territorial area of the applicant, without discrimination on account of race, creed or color, but an exception shall be made in cases where separate hospital facilities are provided for separate popu lation groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group; and (2) there will be made available in each such hospital or addition to a hospital a reasonable volume of hospital services to persons unable to pay there for, but an exception shall be made if such a requirement is not feasible from a financial standpoint. 38 Federal and Florida Statutes and Regulations 42 C. F. E. §53-112. §53.112 Nondiscrimination. Before a construction appli cation is recommended by a State agency for approval, the State agency shall obtain assurance from the applicant that the facilities to be built with aid under the Act will be made available without discrimination on account of race, creed, or color, to all persons residing in the area to be served by that facility. However, in any area where separate hos pital, diagnostic or treatment center, rehabilitation or nurs ing home facilities, are provided for separate population groups, the State agency may waive the requirement of assurance from the construction applicant if (a) it finds that the plan otherwise makes equitable provision on the basis of need for facilities and services of like quality for each such population group in the area and (b) such find ing is subsequently approved by the Surgeon General. Facilities provided under the Federal Act will be considered as making equitable provision for separate population groups when the facilities to be built for the group less well provided for heretofore are equal to the proportion of such group in the total population of the area, except that the State plan shall not program facilities for a sepa rate population group for construction beyond the level of adequacy for such group. Civil Eights Act of 1964, 78 Stat. 241, Title VI— N ondiscrimination in F ederally A ssisted P rograms Sec. 601. No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 39 ASSURANCE OF COMPLIANCE WITH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE REGULATION UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 Federal and Florida Statutes and Regulations (Name of A p p lican t) (hereinafter called the "Applicant” ) HEREBY AGREES THAT it will comply w i t h title VI of the Civil Rights Act of 1964 (P.L. 88-352) and all requirements imposed by or pursuant to the Regulation of the Department of Health, Education, and Welfare (45 CFR Part 80) issued pursuant to that title, to the end that, in accordance with title VI of that Act and the Regulation, no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the Applicant receives Federal financial assistance from the Department; and HEREBY GIVES ASSURANCE THAT it will immediately take any measures necessary to effectuate this agree- ment. If any real property or structure thereon is provided or improved with the aid of Federal financial assistance extended to the Applicant by the Department, this assurance shall obligate the Applicant, or in the case of any transfer of such property, any transferee, for the period during which the real property or structure is used for a purpose for which the Federal financial a s s i s t ance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is so provided, this assurance shall obligate the Applicant for the period during which it retains ownership or possession of the property. In all other cases, this assurance shall obligate the Applicant for the period during which the Federal financial a s s i s t ance is extended to it by the Department. THIS ASSURANCE is given in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts, property, discounts or other Federal financial assistance extended after the date hereof to the Applicant by the Department, including installment pay ments after such date on account of applications for Federal financial assistance which were approved before such date. The Applicant recognizes and agrees that such Federal financial assistance will be extended in reliance on the representations and agreements made in this assurance, and that the United States shall have the right to seek judicial enforcement of this assurance. This assurance is binding on the Applicant, its successors, transferees, and assign ees, and the person or persons whose signatures appear below are authorized to sign this assur ance on behalf of the Applicant. Dated (A p p lican t) B y____________ _______________________ (P re s id e n t , C hairm an of B oard , or com parable au th o r ize d o ffic ia l) (A p p lic a n t’s m ailing a d d re s s ) HEW -441 (12 -64 ) GPO 8 8 5 - 128 40 Federal and Florida Statutes and Regulations Explanation Of HEW FORM NO. 441, ASSURANCE OF COMPLIANCE WITH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE REG ULATION UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 ̂Section 80.4 of the Department of Health, Education, and Welfare’s Regulation effectuating Title VI of the Civil Rights Act of 1964 requires that every application to the Department for Federal financial assistance shall contain or be accompanied by afi’Assurance that the program or facility to be assisted will be conducted or operated in compliance with Title VI of the Civil Rights Act and with all requirements imposed by or pursuant to the Department’s Regulation. Section 80.4 further provides that “the form of the foregoing Assurance and the extent to which like Assurances will be required of subgrantees, contractors, transferees, successors in interest and other participants,” shall be specified by the responsible Department official. Under this authority, HEW Form No. 441 has been specified as the form of Assurance which shall apply to all applications for Federal financial assistance (except for continuing state programs which must meet the require ments of Section 80.4(b) and school districts availing themselves of Section 80.4(c) of the Regulation) submitted to the Department after January 3, 1965; also the circumstances have been specified under which an Applicant shall obtain comparable written Assurances of compliance from its subgrantees, contractors, and transferees. (See answers to Questions 11 and 12 below in this regard.) HEW Form No. 441 constitutes a legally enforceable agreement to comply with Title VI of the Civil Rights Act of 1964, and with all requirements imposed by or pursuant to the Regulation of the Department of Health, Education, and Welfare issued thereunder. Applicants are urged to read the Department’s Regulation before executing the Assurance. The following explanation of the requirements of the Department’s Regulation and the examples of the kinds of discriminatory practices prohibited by them are for the guidance of the Applicants. 1. By executing the Assurance (HEW Form No. 441), what does an Applicant agree to do? A. The Applicant agrees to make no distinction on the ground of race, color, or national origin in providing to individuals any service, financial aid, or other benefit under any program receiving Federal financial assistance extended to the Applicant by the Department. 2. What is meant by “distinction on the ground of race, color, or national origin”? A. “Distinction on the ground of race, color, or national origin” includes (1) any type of segre gation, separate or different treatment, or other discrimination on that ground; (2) the imposition of any admission, enrollment quota, eligibility, or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit under a program or to be afforded an opportunity to participate in a program, if the race, color, or national origin of indi viduals is considered in deteimining whether they meet any such requirement or condition; (3) the use of membership in a group as a basis for the selection of individuals for any purpose, if in selecting members of the group there is discrimination on the ground of race, color, or national origin; and (4) the assignment of personnel to provide services, or the assignment of times or places for the provision of services, on the basis of the race, color, or national origin of the individuals to be served. It does not, however, include distinctions on the ground of race, color, or national origin determined by the responsible Department official to be necessary to the conduct of research or experimental programs having as their primary objective the discovery of new knowledge concerning special characteristics of particular racial or other ethnic groups. 758-574 0 — 64 1 41 Federal and Florida Statutes and Regulations 3. What is meant by “service, financial aid, or other benefit”? A. “Service, financial aid, or other benefit” under a program receiving Federal financial assistance includes any education or training, any evaluation, guidance, counseling, or placement service, any health, welfare, rehabilitation, housing, or recreational service, any referral of individuals for any of the foregoing services, any scholarship, fellowship or traineeship stipend or allowance, and any loan or other financial assistance or benefit (whether in cash or in kind), which is made available to individuals (1) with the aid of Federal financial assistance, or (2) with the aid of the Applicant’s or of other non- Federal funds required to be made available for the program as a condition to the receipt of Federal financial assistance, or (3) in or through a facility provided with the aid of Federal financial assistance or the non-Federal matching funds referred to in (2). 4. What requirements are placed on the use of facilities? A. The Applicant agrees to make no distinction on the ground of race, color, or national origin in making available to individuals the use of any land, building, equipment, or other facility leased, acquired, constructed, improved, or equipped with the aid of Federal financial assistance extended to the Applicant by the Department, including— (a) the use of any room, dormitory, ward, or other space in the facility; (b) the use of any equipment in the facility; (c) the use of any office, waiting room, restroom, eating, recreational, concession, or other accommodation or convenience provided in the facility; {d) the use of any facility not provided with the aid of Federal financial assistance if the avail ability of such facility is required as a condition to the receipt of Federal financial assistance for the Federally-assisted facility. 5. What requirements are placed on the opportunities to participate in a program receiving Federal assistance? A. The Applicant agrees to make no distinction on the ground of race, color, or national origin in affording opportunities to individuals to participate (other than as employees) in any program receiving Federal financial assistance extended by the Department to the Applicant, including oppor tunities to participate— (a) as providers of any service, financial aid, or other benefit to individuals under the program (e.g., as physicians, surgeons, dentists, or other professional practitioners seeking the privilege of practicing in a Federally-aided hospital or other facility), (b) as conferees, observers, consultants, or advisers, or as members of advisory or planning- groups, or (c) as volunteers (e.g., as voluntary workers, or as patients or other subjects of study or-experi mentation in research, survey, demonstration, or like programs). 6. Does that mean that an Applicant who signs the Department’s Assurance may nevertheless make distinctions among his employees on the basis of race, color, or national origin? A. Title VI of the Civil Rights Act does not concern itself with employment practices except where a primary objective of the Federal financial assistance is to provide employment'. Thus, where a basic objective of the program is to provide employment, the Applicant’s employment practices are subject to the Department’s Regulation. However, even where this is not the case an Applicant may be pre cluded from engaging in any discriminatory employment practices under the provisions of Title VII of the Civil Rights Act, Executive Orders 10925 and 11114, and the Merit System Regulations. 7. When an Applicant’s employment practices are covered by the Department’s Regulation, what requirements must be met? A. The Applicant agrees to make no distinction on the ground of race, color, or national origin in its employment practices (including recruitment or recruitment advertising, hiring, layoff or ter mination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities) with respect to individuals seeking employment or employed under any program receiving Federal financial assistance extended to the Applicant by the Department, in those programs where a primary objective of the Federal financial assistance is to provide employment to such individuals. This includes programs under which the employment is provided— (a) as a means of extending financial assistance to students or to needy persons, (b) to students, fellows, interns, residents, or others in training for related employment (including research associates or assistants in training for research work), or (c) to reduce unemployment or to provide remunerative activity to individuals who because of severe handicaps cannot be readily absorbed in the competitive labor market. 2 42 Federal and Florida Statutes and Regulations 8. What effect will the Regulation have on a college or universitys admission practices or other practices related to the treatment of students? A. An institution of higher education which applies for any Federal financial assistance of any kind must agree that it will make no distinction on the ground of race, color, or national origin in the admission practices or any other-practices of the institution relating to the treatment of students. (a) “Student” includes any undergraduate, graduate, professional, or postgraduate student, fellow, intern, student, or other trainee receiving education or training from the institution. (b) “Admission practices” include recruiting and promotional activities, application require ments, eligibility conditions, qualifications, preferences, or quotas used in selecting individuals for admission to the institution, or any program of the institution, as students. (c) “ Other practices relating to the treatment of students” include the affording to students of opportunities to participate in any educational, research, cultural, athletic, recreational, social, or other program or activity; the performance evaluation, discipline, counseling of students; making available to students any housing, eating, health, or recreational service; affording work opportunities, or scholarship, loan or other financial assistance to students; and making available for the use of students any building, room, space, materials, equipment, or other facility or property. 9. Does the Assurance of nondiscrimination apply to the entire operation of an institution? A. Insofar as the Assurance given by the Applicant relates to the admission or other treatment of individuals as students, patients, or clients of an institution of higher education, a school, hospital, nursing home, center, or other institution owned or operated by the Applicant, or to the opportunity to participate in the provision of services, financial aid, or other benefits to such individuals, the As surance applies to the entire institution. In the case of a public school system the Assurance would be applicable to all of the elementary or secondary schools operated by the Applicant. 10. What about a university which operates several campuses? A. Section 80.4(d)(2) of the Regulation provides for a more limited Assurance only where an institution can demonstrate that the practices in part of its operation in no way affect its practice in the program for which it seeks Federal funds. This would be a rare case. 11. I f an Applicant intends to make use of other individuals to help carry out the Federally-assisted program, does the requirement not to discriminate apply to such a subgrantee or contractor? A. It does. The Applicant must require any individual, organization, or other entity which it utilizes, to which it subgrants, or with which it contracts or otherwise arranges to provide services, financial aid, or other benefits under, or to assist it in the conduct of, any program receiving Federal financial assistance extended to the Applicant by the Department, or with which it contracts or other wise arranges for the use of any facility provided with the aid of Federal financial assistance for a purpose for which the Federal financial assistance was extended, to comply fully with Title VI of the Civil Rights Act of 1964 and the Regulation of the Department of Health, Education, and Welfare issued thereunder. 12. Must this Assurance of nondiscrimination by the subgrantee, etc., be in writing? A. In the case (1) of any contractual or other arrangement with another such individual or entity which will continue for an indefinite period or for a period of more than three months, (2) of any sub grant, or (3) of any conveyance, lease, or other transfer of any real property or structures thereon provided with the aid of Federal financial assistance extended to the Applicant by the Department, the Applicant shall obtain from such other person, subgrantee, or transferee, an agreement, in writing, enforceable by the Applicant and by the United States, that such other individual or entity, sub grantee, or transferee will carry out its functions under such subgrant, or contractual or other arrange ment, or will use the transferred property, as the case may be, in accordance with Title VI of the Act and the Regulation will otherwise comply herewith. 13. What obligations does the Applicant have to inform beneficiaries, participants, and others of the provisions of the Regulation? A. The Applicant must make available to beneficiaries, participants, and other interested persons information regarding the provisions of the Regulation and protections against discrimination provided under Title VI of the Civil Rights Act. The Department will issue shortly more detailed instructions on carrying out this phase of the Regulation. 3 43 t edercd and, Florida Statutes and Regulations 14. What obligations does the Applicant have to keep records and to make them available to the Department? A. From time to time, App'icants may be required to submit reports to the Department, and the Regulation provides that the facilities of the Applicant and all records, books, accounts, and other sources of information pertinent to the Applicant’s compliance with the Regulation be made available for inspection during normal business hours on request of an officer or employee of the Department specifically authorized to make such inspections. More detailed instructions in this regard will also be forthcoming from the Department in the near future. 15. Must separate Assurance forms be filed with each application? A. As a general rule once a valid Assurance is given it will apply to any further application as long as there is no indication of a failure to comply. 4 U.S. GOVERNMENT PRINTING OFFICE: 1964 O— 758-574 Federal and Florida Statutes and Regulations F lorida S tatutes A nnotated T itle 27: P ublic H ealth 380.01 Survey of state hospital facilities; development commission (1) The Florida development commission is hereby des ignated as the sole agency of the state to carry out the purposes of the federal hospital survey and construction act as amended. (2) (a) The governor is authorized to appoint a state advisory council which shall consist of seven members who are residents of Florida. Such council shall include repre sentatives of nongovernment organizations or groups, and of state agencies, concerned with the operation, construc tion, or utilization of hospitals, including representatives of the consumers of hospital services selected from among persons familiar with the need for such services in urban or rural areas, to consult with the Florida development commission in carrying out the purposes of the federal hospital survey and construction act with amendments. (b) The members of the advisory council shall be ap pointed for a term of four years or until their successors are appointed and qualified, except that the first appoint ments made after passage of this law shall be for terms as follows: two members shall be appointed for a term of one year; two members shall be appointed for a term of two years; two members shall be appointed for a term of three years, and one member shall be appointed for a term of four years. (3) The governor is authorized to provide for carrying out such purposes in accordance with the standards pre scribed by the surgeon general. 45 395.02 Purpose * The purpose of this chapter is to provide for the develop ment, establishment and enforcement of standards: (1) For the care and treatment of individuals in hos pitals and, (2) For the construction, maintenance and operation of hospitals, which, in the light of advancing knowledge, will promote safe and adequate treatment of such individuals in hospitals. 395.03 Licensure After December 31, 1947, no person or governmental unit acting severally or jointly with any other person or governmental unit shall establish, conduct or maintain a hospital in this state without a license under this law. 395.04 Application for license; disposition of fees; expenses (1) An application for a license shall be made to the licensing agency upon forms provided by it and shall con tain such information as the licensing agency reasonably requires, which may include affirmative evidence of ability to comply with such reasonable standards, rules and regu lations as are lawfully prescribed hereunder. Each appli cation for license shall be accompanied by a license fee of fifteen dollars, payable to the state board of health, to be deposited with the state treasurer into the general revenue fund. (2) The expenses of the state board of health and the advisory hospital council incurred in carrying out the pro visions of this chapter shall be paid from moneys appro- Federal and Florida Statutes and Regulations 46 priated for that purpose. The state board of health shall include a sufficient amount in its legislative budget request to properly carry out the provisions of this chapter. As amended Laws 1961, c. 61-33, Sec. 1, effective June 30, 1961. 395.05 Issuance and renewal of license Upon receipt of an application for license and the license fee, the licensing agency shall issue a license if the appli cant and hospital facilities meet the requirements estab lished under this law. A license, unless sooner suspended or revoked, shall be renewable annually upon payment of a fee of ten dollars, payable and expendable as set out in § 395.04, and upon filing by the licensee, and approval by the licensing agency, of an annual report upon such uni form dates and containing such information in such form as the licensing agency prescribes by regulations. Each license shall be issued only for the premises and persons or governmental units named in the application and shall not be transferable or assignable except with the written approval of the licensing agency. Licenses shall be posted in a conspicuous place on the licensed premises. 395.06 Denial or revocation of license; hearings and review The licensing agency after notice and opportunity for hearing to the applicant or licensee is authorized to deny, suspend or revoke a license in any case in which it finds that there has been a substantial failure to comply with the requirements established under this law. Such notice shall be effected by registered mail, or by personal service setting forth the particular reasons for the proposed action and fixing a date not less than thirty days from the date of such mailing or service, at which Federal and Florida Statutes and Regulations 47 the applicant or licensee shall be given an opportunity for a prompt and fair hearing. On the basis of any such hear ing, or upon default of the applicant or licensee the licens ing agency shall make a determination specifying its find ings of fact and conclusions of law. A copy of such deter mination shall be sent by registered mail or served per sonally upon the applicant or licensee. The decision revoking, suspending or denying the license or application shall become final thirty days after it is so mailed or served, unless the applicant or licensee, within such thirty day period, appeals the decision to the court, pursuant to § 395.14. The procedure governing hearings authorized by this section shall be in accordance with rules promulgated by the licensing agency with the advice of the advisory hospital council. A full and complete record shall be kept of all pro ceedings, and all testimony shall be reported but need not be transcribed unless the decision is appealed pursuant to § 395.14. A copy or copies of the transcript may be ob tained by any interested party on payment of the cost of preparing such copy or copies. Witnesses may be sub poenaed by either part. 395.07 Rules, regulations, and enforcement The licensing agency with the advice of the advisory hos pital council, shall adopt, amend, promulgate and enforce such rules, regulations and standards with respect to all hospitals or different types of hospitals to be licensed here under as may be designed to further the accomplishment of the purposes of this law in promoting safe and adequate treatment of individuals in hospitals in the interest of pub lic health, safety and welfare. However, it is understood that no rule, regulation or standard shall be promulgated Federal and Florida Statutes and Regulations 48 hereunder by the licensing agency, with the advice of the advisory hospital council, which would have the effect of denying a license to a hospital or other institution required to be licensed hereunder, solely by reason of the school or system of practice employed or permitted to be employed by physicians therein; provided, that such school or system of practice is recognized by the laws of this state; and provided, further, that nothing in the preceding part of this sentence shall be construed to limit the powers of the licensing agency, with the advice of the advisory hospital council, to provide and require minimum standards for the maintenance and operation of those hospitals and the treat ment of patients in those hospitals which receive federal aid, to meet minimum standards related to such matters in said hospitals which may now or hereafter be required by appropriate federal officers or agencies in pursuance of federal law or promulgated in pursuance of federal law. 395.09 Inspections and consultations The licensing agency shall make or cause to be made such inspections and investigations as it deems necessary. The licensing agency may prescribe by regulations that any licensee or applicant desiring to make specified types of alterations or addition to its facilities or to construct new facilities shall before commencing such alteration, addition or new construction, submit plans and specifications there for to the licensing agency for preliminary inspection and approval or recommendation with respect to compliance with the regulations and standards herein authorized. Necessary conferences and consultations mav be provided. Federal and Florida Statutes and Regulations / 38