Letter from Lani Guinier to Sharon Holland RE Bozeman v. Lambert Fees

    No. 11,668

IN THE

luttefr §>UU& Olmtrt of Appeals
For the Sixth Circuit

JAMES W. MUIR,

vs.
Appellant,

LOUISVILLE PARK THEATRICAL ASSOCIATION,
Appellee.

A ppeal  fro m  t h e  D istr ict  C ourt  of t h e  U n it e d  S tates  
for  t h e  W e st er n  D ist r ic t  of K e n t u c k y  a t  L o u isville

BRIEF FOR APPELLANT

B e n j a m in  F . S h o b e ,
829 West Broadway,
Louisville 3, Kentucky,

R obert L. C arter ,
20 West 40th Street,
New York 18, New York,

Counsel for Appellant.
F r a n k  D . R eeves ,
L eonard  W. S h ro eter ,

of Counsel.

Supreme Printing Co.. Inc.  4i M urray Street. Is . Y. 7. B arclay  7-0349 
^g||§»49





1

The Statement of Questions Involved

I.

Whether appellee, the Louisville Park Theatrical As­
sociation, presenting outdoor theatrical performances by 
virtue of an exclusive agreement with the City of Louis­
ville at the only publicly owned and maintained outdoor 
amphitheater violated the Fourteenth Amendment to the 
Constitution of the United States by refusing to permit 
appellant, and other Negro citizens of Louisville, to attend 
such performances solely because of race and color?

The District Court held “ no.”

Appellant contends that the question should be answered 
“ yes.”

II.
Whether appellant is entitled to the relief herein 

sought—the right, subject only to the same rules and regula­
tions applicable to all other persons, to attend performances 
conducted under the auspices of appellee, the Louisville 
Park Theatrical Association, held on property owned by 
the city—without first showing that he and/or some 
organizations of Negroes had been refused the right to 
stage similar presentations at the amphitheater under 
terms similar to those granted appellee.

The District Court held “ no.”

Appellant contends that the question should have been 
answered “ yes.”



11

SUBJECT INDEX
PAGE

Statement of Questions Involved .................................  i
Subject Index ..............................................    ii

Table of C ases..................................................................... iii
I. Statement of F a cts ...................................................  1

II. Argument ..................................................................   8
1. Whether appellee, the Louisville Park The­

atrical Association, presenting outdoor the­
atrical performances by virtue of an exclusive 
agreement with the City of Louisville at the 
only publicly owned and maintained outdoor 
amphitheater violated the Fourteenth Amend­
ment to the Constitution of the United States 
by refusing to permit appellant, and other 
Negro citizens of Louisville, to attend such 
performances solely because of race and color 8

2. Whether appellant, is entitled to the relief 
herein sought—the right, subject only to the 
same rules and regulations applicable to all 
other persons, to attend performances con­
ducted under the auspices of appellee, the 
Louisville Park Theatrical Association, held 
on property owned by the city—without first 
showing that he and or some organizations of 
Negroes had been refused the right to stage 
similar presentations at the amphitheater 
under terms similar to those granted appellee 17

III. Conclusion..................................................................  18



Ill

Table of Cases
PAGE

Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014
(1916) ..........................................................................  15

Buchanan v. Warley, 245 U. S. 60 (1917) .................. 8
Culver v. City of Warren, 83 N. E. 2d 83 (Ohio 

1918) ............................................................................  13,14

Daszkiewicz v. Board of Education of Detroit, 301 
Mich. 212, 3 N. E. 2d 71, 76 (1942) .........................  15

Ex parte Virginia, 100 U. S. 339 (1880 )................... 8,11,12
Hill v. Texas, 316 U. S. 400 (1942) .............................  8

Kern v. City Commissioners of the City of Newton,
151 Kan. 565, 100 P. 2d 709 (1940) .........................  13,14

Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 
(C. A. 4th 1945) ......................................................... 10,15

Lawrence v. Hancock, 76 F. Supp. 1004 (S. D. W. Va.
1948) ............................................................................  10,13

Lincoln Park Traps v. Chicago Park District, 323 
111. App. 107, 55 N. E. 2d 173, 175 (1944 )................ 11

Missouri ex rel. Gaines v. Canada, 305 IJ. S. 337
(1938)............................................................................  8,18

Mitchell v. United States, 313 U. S. 8 0 ........................ 18
Nixon v. Condon, 286 U. S. 73 (1932) ..................... 8,10,12
Oyama v. California, 332 U. S. 633 (1948 ).................. 8
Parker v. University of Delaware, 75 A. 2d 225

(1950) ..........................................................................  15
Pierre v. Louisiana, 306 U. S. 354 (1939) .................  8

Bice v. Elmore, 165 F. 2d 387 (C. A. 4th 1947), cert, 
den. 333 U. S, 875 ........................................................ 13

Shelley v. Kraemer, 334 U. S. 1 (1948) ...................... 8
Sipuel v. Board of Begents, 332 U. S. 631 (1948) . . . .  18
Smith v. Allwright, 321 U. S. 649 (1944) .................. 13
Snowden v. Hughes, 321 U. S. 1 (1944) .................... 12



IV

PAGE
Takahashi v. Fish and Game Commission, 334 U. 8.

410 (1948) .........................................    8
Truax v. Raich, 239 U. 8. 33 (1915) ............................  8
Trustees v. Clark, 112 Tenn. 483, appeal dismissed,

204 U. 8. 565 (1903) ...................................................  15

University of Maryland v. Murray, 169 Md. 478 
(1936) ..........................................................................  15

Yick Wo v. Hopkins, 118 U. 8. 356 (1886 ).................. 8
Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926) . . . .  8



No. 11,668

IN THE

(Erntrt nf Appeals
For the Sixth Circuit

•----------------------o----------------- -----
J a m e s  W .  M u ir ,

Appellant,
vs.

L o u isvill e  P a r k  T h e a t r ic a l  A sso ciatio n ,

Appellee.

A ppe a l  pr o m  t h e  D istr ict  C ourt  of t h e  U n it e d  S tates  
for t h e  W ester n  D istrict  of K e n t u c k y  at  L o u isvill e

— ------------------- o----------------------

BRIEF FOR APPELLANT

Statement of Facts

The facts are not in dispute. They are contained in a 
stipulation of facts (R. 18-19) and three agreements entered 
into between the Louisville Park Theatrical Association 
and the City of Louisville (R. 62, el seep). The relevant 
facts are recorded in the memorandum (R. 21) and findings 
of fact (R. 23, 24) of the court below.

In 1938, the Board of Park Commissioners of the City 
of Louisville set aside a portion of public grounds designated 
as Iroquois Park as a site for an amphitheatre and caused 
to be erected thereon a structure now called the Iroquois 
Amphitheatre (R. 18). This structure was erected out of 
public funds except for $5,000 which was contributed by



2

appellee, the Association (R. 18). The Association is a 
non-stock, non-profit, private corporation organized and 
existing under the laws of the state of Kentucky (R, 18). 
Pursuant to written agreement with the City of Louisville, 
the Louisville Park Theatrical Association, at its own ex­
pense and under its sole direction and supervision, presents 
certain theatrical performances at the Amphitheatre for 
which an admission fee is charged (R. 18). The right to 
present such performances is exclusive between May 1 
and September 30 (R. 75). From 1947 to 1951, appellee 
presented theatrical productions pursuant to such agree­
ment during the following dates (R. 19):

July 1—August 10, inclusive, 1947 
July 5—August 14, inclusive, 1948 
July 11—August 21, inclusive, 1949 
July 10—August 6, inclusive, 1950 
July 6—August 19, inclusive, 1951.

The contract of May 14, 1947 (R. 74-79), was the agree­
ment in force at the time appellant was refused admission 
to the Amphitheatre. It provides in substance for the can­
cellation of a previous agreement dated May 1, 1943, and 
gives and grants to the Association “ an exclusive right and 
privilege”  to use the Amphitheatre on such dates between 
May 1 and September 30 as appellee by written notice 
may designate. The city further contracts not to lease or 
give to any other party the right to use the Amphitheatre 
during this period without first obtaining appellee’s written 
consent. The contract was scheduled to run for a period 
of five years (R. 74, 75). Appellee has the right to use the 
Amphitheatre at any time between May 1 and September 
30 for rehearsing or presenting musical, dramatic, athletic 
or any other form of entertainment it may select. It was 
given the right to sell food, soft drinks, tobacco, cigars, 
cigarettes, candy, programs, musical scores and other items



3

which are “ customarily sold or offered for sale in similar 
places of public entertainment,”  and the right to charge an 
admission fee (R. 75). The contract specifies that the fees 
and charges must be reasonable and consistent with the 
desire of both the Association and the City of Louisville 
“ to increase the use of Iroquois Park by making the enter­
tainment presented at the Amphitheatre available to the 
public at low cost”  (R. 75, 76).

On its part, the city agreed to maintain the structure 
and equipment at the Amphitheatre. It was agreed that no 
new structure could be erected, no work begun to replace, 
maintain or repair equipment, appurtenances or physical 
property connected with the Amphitheatre except on the 
joint decision of the Department of Public Parks and Rec­
reation and appellee. Water was to be furnished by the 
city, and the city agreed to provide roads, paths and park­
ing area necessary to accommodate persons desiring to 
attend entertainment given at the Amphitheatre under 
appellees’ auspices (R. 76, 77).

The Association agreed to pay the electric bill from 
May 1-September 30 during the life of the contract, and it 
must pay salaries of all persons employed in connection 
with any entertainment produced and must clean the Am­
phitheatre after each performance at its own expense 
(R. 76).

The Association further agreed to furnish to the city 
on January 1 of each year a statement listing all entertain­
ment produced under the Association’s auspices at the 
Amphitheatre during the preceding season, the admission 
fees charged, the number of persons attending, and such 
other information as would help the city in determining 
whether the operation of the Amphitheatre had actually 
and materially contributed to the public use and enjoyment 
of the park system. In addition the Association is required 
to furnish the city with an audited statement of monies



4

received and expended in connection with its operation of 
the Amphitheatre (R. 77). Each annual statement was to 
complement the one for the preceding years (R. 77), and 
at the termination of their agreement, unless extended, the 
Association agreed to pay over to the city all net profits 
realized from its operation after first deducting the initial 
$5,000 it contributed to the cost of building the Amphi­
theatre (R. 77-78).

The city retained the right to the care, management, and 
custody of the Amphitheatre and all its equipment and 
appurtenances (R. 78). It further retained the right to 
authorize the use of the Amphitheatre for any purpose not 
inconsistent with rights conferred upon appellee by virtue 
of their agreement (R. 78). The city, moreover, agreed 
not to lease the Amphitheatre to any party between May 1 
and September 30 for the purpose of producing entertain­
ment for which an admission fee is charged or monetary 
profit is expected unless such party shall have first sought 
to sublease the Amphitheatre from appellee and the latter 
arbitrarily refused to sublease (R. 78).

The city maintained the right to make and enforce rea­
sonable rules and regulations to insure good order, to 
prohibit indecent and immoral entertainment or any calcu­
lated to create racial or religious antagonism or to disturb 
the public peace (R. 79).

On July 29, 1949, appellant sought admission to the 
Iroquois Amphitheatre to see a performance of “ Blossom 
Time,”  a theatrical production then being presented by 
appellee, the Louisville Park Theatrical Association. 
Although this was a performance to which the general 
public could gain admission by paying an admission fee, 
appellee refused to sell appellant a ticket solely because 
he is a Negro (R. 19).

Appellant sought a declaratory judgment and injunctive 
relief on the grounds that appellee’s refusal to admit him



5

to the Amphitheatre violated his right to equal protection 
of the laws as secured under the Fourteenth Amendment to 
the Constitution of the United States (R. 2-9). Appellee, 
the Louisville Park Theatrical Association, tiled a motion 
to dismiss (R. 9-10). Appellant filed an amended complaint 
(R. 15). A  second motion to dismiss was filed (R. 15-16) 
and on October 21,1950, appellee filed an answer (R. 15-16).

A  stipulation of facts was filed on August 6, 1951 (R. 18- 
19), and on the same date a hearing on the merits was held 
in the Court below (R. 14 et seq.).

Appellant tendered Exhibits 1 and 2 (R. 62-74), which 
are part of the record in this case for purpose of identifica­
tion, but were refused by the Court because “ they are not 
authenticated * * # another reason is the statement of Mr. 
Taylor (Counsel for Appellee) that he is not prepared to 
admit those because he had no notice of it, and in a confer­
ence it was agreed, according to his understanding, that the 
case would be submitted on the stipulation * * * ”  (R. 61).

In essence, the controversy here resolves around the 
provisions of Exhibit 3 (R. 74-79), the agreement of May 
14, 1947, between the Association and the City of Louis­
ville. The pertinent provisions of this contract have been 
referred to in this statement of facts. The contract was 
made a part of the stipulated facts in this case (R. 18, 
Stipulation of Facts, par. “ I I ” ).

On September 14, 1951, the District Court filed its opin­
ion, findings of fact and conclusions of law (R. 20-35). On 
January 18, 1952, final judgment was entered (R. 36-37). 
The Court held the Association was not acting for the state 
in its operation of the Amphitheatre and that appellant 
and/or no Negro organization had sought permission to 
use the Amphitheatre for the same purposes as the Associa­
tion. For this reason the court below held no constitutional 
rights had been violated.



6

The pertinent portions of the judgment are set out 
below:

“ This action coming on for the entry of a judg­
ment in conformity with the findings of fact and 
conclusions of law heretofore filed herein, and the 
Court being sufficiently advised, it is ordered and 
adjudged that the rights of the parties in the prem­
ises be, and they are hereby declared to be as fol­
lows :

# # #
3. That the Louisville Park Theatrical Associa­

tion, in denying admission to Iroquois Amphitheatre 
to plaintiff, James W. Muir, was not acting for the 
City of Louisville, or its Director of Parks and Rec­
reation, but solely on behalf of the Louisville Park 
Theatrical Association in the proper exercise of its 
rights as a private corporation; that this action on 
the part of the Louisville Park Theatrical Associa­
tion is not subject to the provisions of the equal 
protection clause of the Fourteenth Amendment to 
the United States Constitution for the reason that 
it is not the action of the City of Louisville or of any 
“ arm”  of the State.

The plaintiff, James W. Muir, does not show that 
any Negro organization or Negro citizens of Louis­
ville similarly situated to the defendant, Louisville 
Park Theatrical Association, has required use of the 
Amphitheatre in Iroquois Park, for the purpose of 
being permitted to exhibit therein, entertainment 
of the kind now exhibited therein by the Louisville 
Park Theatrical Association, nor that the City of 
Louisville had refused such permission. This Court 
declares that the City of Louisville in allowing the 
Louisville Park Theatrical Association to lease or 
use the Iroquois Amphitheatre for private operation



7

for a short period of time, does not violate the Four­
teenth Amendment where there is no showing that 
other groups, including any Negro organization, may 
not be allowed to lease the Amphitheatre under any 
similar terms on a non-discriminatory basis. ’ ’

On February 18, 1952, appellant filed notice of this 
appeal (R. 38). On February 25, 1952, the District Court 
entered its order extending the time for filing the record 
on appeal in this case to May 15, 1952 (R, 40). On May 20, 
1952, this Court granted appellant’s motion to extend the 
time for filing the record to and including July 15, 1952 
(R. 41). On June 25, 1952, stipulation by counsel for all 
parties hereto as to the record on this appeal and appel­
lant’s Reasons and Grounds for Appeal were filed (R. 8-82); 
the appeal was perfected and the matter brought to this 
court as provided by law.

This court extended the time for filing appellant’s brief 
to and including September 14, 1952, upon stipulation of 
counsel for all parties hereto.



8

ARGUMENT

I.

Whether appellee, the Louisville Park Theatrical 
Association, presenting outdoor theatrical perform­
ances by virtue of an exclusive agreement with the 
City of Louisville at the only publicly owned and main­
tained outdoor amphitheater violated the Fourteenth 
Amendment to the Constitution of the United States 
by refusing to permit appellant, and other Negro citi­
zens of Louisville, to attend such performances solely 
because of race and color?

The District Court held “no.” Appellant contends 
that the question should be answered “yes.”

The defense on the merits of this case interposed by 
appellee is that in denying admission to the Amphitheatre 
to appellant, appellee was not acting on behalf of the City 
or any agency of the state bnt as a private individual. Ap­
pellee has stipulated that appellant was denied admission 
solely “ because of the fact that he was and is a colored 
person of Negro blood and African descent”  (R. 19). There 
can be no doubt that if these theatrical presentations were 
presented by the city itself at the Amphitheatre, appel­
lant could not be refused admission because of his race 
or color. Ex parte Virginia, 100' U. S. 339 (1880); Yick Wo 
v. Hopkins, 118 U. S. 356 (1886); Buchanan v. Warley, 245 
IT. S. 60 (1917); Truax v. Raich, 239 U. S. 33 (1915); Yu 
Cong Eng. v. Trinidad, 271 U. S. 500 (1926); Hill v. Texas, 
316 U. S. 400 (1942); Nixon v. Condon, 286 IT. S. 73 (1932); 
Pierre v. Louisiana, 306 U. S. 354 (1939); Takahashi v. Fish 
and Game Commission, 334 IT. S. 410 (1948); Oyama v. 
California, 332 U. S. 633 (1948); Shelley v. Kraemer, 334 
IT. S. 1 (1948); Missouri ex rel. Gaines v. Canada, 305 U. S. 
337 (1938).



9

This is now elemental constitutional doctrine. Thus, 
if appellee is an “ arm of the .state,”  it follows that its 
refusal to admit appellant to its sponsored activity solely 
because of race or color violated the mandate of the Four­
teenth Amendment.

Appellee, the Louisville Park Theatrical Association, 
contends, and the court below so found, that in denying 
appellant admission to the Amphitheatre, it was acting as 
a private person and, therefore, is not subject to the re­
strictions imposed by the Constitution. We contend that 
appellee, in operating the Amphitheatre, is acting for the 
state and, therefore, is as powerless to make racial dis­
tinctions with respect to its policy of admission as is the 
state itself under the Fourteenth Amendment.

Under the agreement entered into between the City of 
Louisville and the Association, the latter i.s granted a 
monopoly to use public property to aid the City of Louis­
ville in accomplishing one of its objectives—-to provide 
entertainment at low cost and, thereby, contribute to the 
use and enjoyment of the public parks by the public at 
large. The construction of the Amphitheatre was under­
taken by the City because it was felt that such an outdoor 
structure would increase the recreational facilities avail­
able to the public in Iroquois Park (R. 62, 63).

Appellee has exclusive right to use the Amphitheatre 
between May 1 and September 30. That period is the best, 
if  not the only, time during the year when outdoor enter­
tainment of the kind presented by the appellee could rea­
sonably and effectively be presented in Louisville, Ken­
tucky. The Association must assume the cost of any enter­
tainment it brings to the Amphitheatre. However, appel­
lee can make no profit on the venture since all net proceeds 
are payable to the city. Appellee may set the scale of 
admission or charges provided these are reasonably low. 
Any party who desires to obtain the Amphitheatre for the



10

purpose of bringing public entertainment to Louisville 
during May 1-September 30, must first seek to sublease 
same from appellee, however, if such sublease is arbitrarily 
refused, the City has the right to order appellee to execute 
a sublease.

Viewing these factors as a whole, the conclusion is ines­
capable, we submit, that the Association here is not acting 
as a private entrepreneur for financial gain, but as an arm 
of the state dedicated to providing recreational enjoy­
ment for the people of Louisville. The fact that appellee is 
organized as a private corporation is not the controlling 
factor. What is important is its relationship to the city 
and the function it performs. “ The general rule as to 
parks, playgrounds and swimming pools places their opera­
tion in the category of governmental activity by the 
municipality” , Lawrence v. Hancock, 76 F. Supp. 1004, 
1008 (S. D. W. Va. 1948). Once the city has leased its park 
property to a private person, the question as to whether 
the action of that person is “ state action”  cannot be deter­
mined by any common law test of ownership or control. 
In this case, the question arises under the Fourteenth 
Amendment to the Constitution of the United States and 
actually is whether the Association is “ to be classified as 
representative of the state to such an extent and in such a 
sense that the great restraint of the Constitution sets limits 
to its action.”  Nixon v. Condon, supra. The standard and 
“ the sense”  requisite to invoking constitutional control has 
been stated in the few cases that are relevant or in point. 
These, the courts have held, are not to be determined tech­
nically, Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 
(C. A. 4th 1945), but rather from an appraisal of all of the 
circumstances.

As a general rule “ the law is well settled that a park 
board cannot lease a portion of its land to a private indi­
vidual, club or corporation, when by the terms of such



11

lease the demised land and the facilities located thereon are 
not available equally to all the people.”  Lincoln Park Traps 
v. Chicago Park District, 323 Illinois App. 107, 55 N. E. 2d 
173, 175 (1941). Thus, where a lease to a private, non­
profit corporation was granted by a city and that corpora­
tion restricted the use of the facilities to those people it 
saw fit to allow to use the facilities, the court in declaring 
that the lease was void ; said:

“ It is clear * * * that all lands, the title to which is 
in commissioners of park districts, are held in trust 
for the equal benefit of all of the people of the state, 
that the facilities of park districts are for the equal 
benefit of all of the people of the state and that park 
districts cannot operate their facilities or permit 
them to be operated in such a manner that a prefer­
ential use thereof is granted to any one person or 
to any group of persons.”  Id. at page 176.

The presumption, therefore, in every case where public 
park facilities are involved is that even though leased to a 
private person, if the regulations, customs and practices 
governing their usage are those of the municipality, such 
private person is in fact acting for and on behalf of the 
state.

Customarily state action involves activity by a state 
official. Some of the early cases have suggested that:

“ A  state acts by its legislative, its executive or 
its judicial authorities. It can act in no other way 
* * * Whoever, by virtue of public position under a 
State government * * # denies or takes away the 
equal protection of the laws, violates the constitu­
tional inhibition; and as he acts in the name and for 
the State and is clothed with the State’s power, his 
act is that of the State. This must be so, or the con­
stitutional prohibition has no meaning”  Ex parte 
Virginia, 100 IT. S. 339, 347 (1880).



12

The narrow limitation of state action suggested in Ex 
parte Virginia, supra, has been broadened, however, in more 
recent cases. As Mr. Justice Frankfurter said in Snowden 
v. Hughes, 321 U. S. 1, 16 (1944) :

“ Since the state, for present purposes, can only 
act through functionaries, the question naturally 
arises what functionaries, acting under what circum­
stances, are to be deemed the state for purposes of 
bringing suit in the federal courts on the basis of 
illegal state action. The problem is beset with in­
herent difficulties and not unnaturally has had a 
fluctuating history in the decisions of the court.”

The recent cases involving the actions of political par­
ties have held that their actions were that of the state when 
they excluded Negroes from participating in primary elec­
tions. Nixon v. Condon, supra, at pages 88 and 89 stated:

‘ ‘ The pith of the matter is simply this, that when 
those agencies are invested with an authority inde­
pendent of the will of the association in whose name 
they undertake to speak, they become to that extent 
the organs of the State itself, the repositories of 
official power. They are then the governmental in­
struments whereby parties are organized and regu­
lated to the end that government itself may be 
established or continued. What they do in that 
relation, they must do in submission to the mandates 
of equality and liberty that bind officials everywhere. 
They are not acting in matters of merely private 
concern like the directors or agents of business cor­
porations. They are acting in matters of high public 
interest, matters intimately connected with the ca­
pacity of government to exercise its functions un- 
brokenly and smoothly. Whether in given circum­
stances parties or their committees are agencies of



13

government within the Fourteenth or the Fifteenth 
Amendment is a question which this court will deter­
mine for itself. It is not concluded upon such an 
inquiry by decisions rendered elsewhere. The test 
is not whether the members of the Executive Com­
mittee are the representatives of the state in the 
strict sense in which an agent is the representative 
of his principal. The test is whether they are to 
be classified as representatives of the State to such 
an extent and in such a sense that the great restraints 
of the Constitution set limits to their action.”

See also Smith v. Allwfight, 321 U. S. 649 (1944) and Rice 
v. Elmore, 165 F. 2d 387 (C. A. 4th 1947), cert. den. 333 
U. S. 875. Thus, it is apparent that under certain circum­
stances there may be state action even though the state 
“ functionaries”  are private persons.

Three important cases involving the leasing of swim­
ming pools in public parks to private corporations for their 
operation are closely in point to the case before us. All 
three of these cases contain common factors which per­
suaded state or federal courts that the action of the private 
corporation was in fact state action. These cases are 
Lawrence v‘. Hancock, supra; Culver v. City of Warren, 83 
N. E. 2d 83 (Ohio 1948); Kern v. City Commissioners of the 
City of Newton, 151 Kans. 565, 100 P. 2d 709 (1940).

In Lawrence v. Hancock the court found as important 
factors the fact that the lease provided for no considera­
tion to be paid to the city, and that the lessee was not per­
mitted to make any profit. Both of these factors are present 
here. From this they concluded that the lessee was “ a 
mere agent or instrumentality”  through which the City 
acted. They then said at page 1008:

“ Justice would be blind indeed if she failed to 
detect the real purpose in this effort of the City * * *



14

to clothe a public function with the mantle of private 
responsibility. ‘ The voice is Jacob’s voice/ even 
though ‘ the hands are the hands of Esau.’ It is 
clearly but another in the long series of stratagems 
which governing bodies of many white communities 
have employed in attempting to deprive the Negro 
of his constitutional birthright; the equal protection 
of the laws.”

In Culver v. City of Warren, supra, at page 86, the court 
also found state action after asking itself:

“ Can a municipality by leasing a swimming pool 
constructed with public funds to a corporation not 
for profit, relieve itself of the constitutional obliga­
tion to afford colored citizens equal rights with those 
of white citizens in the use of recreational facilities 
thereby provided?”

Among the factors regarded as proving that the lease 
was “ governmental action under the guise of private 
management”  were that there was no responsibility upon 
the lessee to maintain the premises since all maintenance 
and repairs were the responsibility of the city. This is 
also the case here. This factor was one of many thrown 
into the balance which indicated that there was an effort 
by the city to dispose of constitutional rights “ by a process 
of legal legerdemain which has the effect of turning over 
to a private organization, public property for the sole pur­
pose of racial discrimination.”

So, too, in Kern v. City Commissioners of the City of 
Newton, supra, the court held that swimming pools built 
and maintained by the state were in the same category 
as public schools. The lease couldn’t take away from the 
pool any of its public characteristics. The City and the 
lessee simply had an arrangement whereby the latter



15

managed the pool for the former. This, we submit, is 
applicable here.

Considerable light is shed upon the problem by the 
decision in Kerr v. Enoch Pratt Free Library, supra, which 
did not involve the leasing of public property, but instead 
the operation of such property by a privately appointed, 
self perpetuating Board of Trustees with whom the City 
could not interfere. Despite this relationship the court 
declared that it knew “ of no reason why the state cannot 
create separate agencies to carry on its work in this manner, 
and when it does so, they become subject to the constitu­
tional restraints imposed upon the state itself.”

The fact that profits result, Bailey v. City of Topeka, 
97 Kan. 327, 154 P. 1014 (1916); or that fees are collected 
from users of facilities, University of Maryland v. Murray, 
169 Md. 478 (1936) does not support a distinction between 
a private and a public character. See also Daszkiewicz v. 
Board of Education of Detroit, 301 Mich. 212, 3 N. W. 2d 
71, 76 (1942). The fact that private individuals have made 
contributions to the building or upkeep of the facility does 
not take it out of the category of state action. Trustees v. 
Clark, 112 Tenn. 483, appeal dismissed 204 U. S. 565 (1903). 
Even where most of the property and income of an in­
stitution comes from private sources and its predecessor 
corporation was private, where there is a large degree of 
statutory and financial control, the courts will find that 
the institution is a state agency. Parker v. University of 
Delaware, 75 A. 2d 225 (1950).

It is clear that the ultimate control of the use of the 
Amphitheatre is in the hands of the City, even though as 
a matter of custom, usage and practice the operation of the 
facility during* the period when anyone would want to use 
it, is in the hands of the Association.

That the Association incurs the expenses of the pro­
ductions it puts on, is completely irrelevant. In all of the



16

cases discussed above, the expenses of running the facility 
were borne by the lessee. Under the lease the ultimate 
control of admission fees and charges and of the entertain­
ment rests with the city. The Association must submit a 
detailed annual report, and the City may make and enforce 
rules and regulations it deems necessary, which includes 
the right to prohibit productions. In addition it has the 
ultimate right of terminating the lease ai will. No greater 
control over the Association’s activities could exist. Indeed 
the fact that the Amphitheatre, owned, built, and maintained 
by the City, is in a public park and that all net profits go 
to the City, make it perfectly clear that the relationship 
between the City and the Association is that of principal 
and agent. Certainly it is a gross distortion of the pur­
poses of the Fourteenth Amendment to hold that the 
Association was a private corporation free from the 
restraints of the Constitution. For these reasons, we 
submit, the judgment of the court below should be reversed.



17

II.

Whether appellant, is entitled to the relief herein 
sought— the right, subject only to the same rules and 
regulations applicable to all other persons, to attend 
performances conducted under the auspices of appel­
lee, the Louisville Park Theatrical Association, held on 
property owned by the City— without first showing 
that he and/or some organizations of Negroes had 
been refused the right to stage similar presentations 
at the Amphitheatre under terms similar to those 
granted appellee.

The District Court held “no.” Appellant contends 
that the question should have been answered “yes.”

The question raised here is whether the public authority 
can arbitrarily require a greater responsibility of one class 
of its citizens, because of their race or color, to do more in 
order to obtain admission to a public facility, than is re­
quired of the rest of the popoulation.

The additional duty suggested by the court below of 
requiring appellant or organizations of Negroes to first 
seek permission to stage summer operas at the Amphi­
theatre is in itself an unreasonable discrimination. Clearly, 
this duty devolves only upon appellant and other Negroes 
and not upon people of any other race or color.

The District Court recognized the rule contended for in 
another phase of the instant case which involved the right 
of a Negro to play golf upon the public golf courses in the 
City of Louisville. In answer to the suggestion of the 
representative of the City that if demand was made by 
Negroes for a golf course in one of the parks set aside for 
Negroes, he would recommend construction of same to the 
City, the District Court held:



18

“ Whatever effect this offer may have upon the 
controversy in the future, it can have no weight pres­
ently. This case must be determined upon the exist­
ing facts and plaintiffs present rights * # *

“ It becomes the duty of the Director of Parks 
and Recreation to provide facilities for plaintiffs 
* * * for playing golf * * * upon a basis # # * sub­
stantially equivalent to those furnished in that re­
spect to white persons”  (R. 34-35).

The District Court cited as authority for this proposi­
tion the case of Missouri ex rel. Gaines v. Canada, 305 U. S. 
337 (1938). Appellant agrees with the District Court with 
respect to the rule laid down in Missouri ex rel. Gaines v. 
Canada, supra, and appellant submits that the rule enunci­
ated is applicable here. See also Sipuel v. Board of Regents 
of University of Oklahoma, 332 U. S. 631 (1948); Mitchell 
v. United States, 313 U. S. 80. Appellant in order to invoke 
his constitutional right to the use of state facilities without 
discrimination based upon race and color cannot be required 
to assume obligations or duties greater than those imposed 
upon other persons similarly situated.

Conclusion

We submit that fundamental logic leads to but one con­
clusion, that the Association is an “ arm”  of the state in 
staging theatrical presentations at the Amphitheatre and 
in such capacity arbitrarily and unreasonably denied appel­
lant admission to the Amphitheatre solely because of appel­
lant’s race or color. Under such circumstances, appellant’s 
right to equal protection of the laws has been violated and



19

it is respectfully submitted that judgment below should 
be reversed.

B e n j a m in  F .  S h o b e ,
829 West Broadway,
Louisville 3, Kentucky,

R obert  L. C arter ,
20 West 40th Street,
New York 18, New York,

Counsel for Appellant.

F r a n k  D . R e e v e s ,
L eonard  W. S h r o et er ,

of Counsel.