Evans v. Abney Memorandum for the United States as Amicus Curiae

    N o. 60

$n  tl«  Supreme fl̂ ourt of the altitod JStates
October T erm, 1969

R everend E. S. E vans, et al., petitioners

v .

G uyton G. A bney, et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

ERW IN N. GRISWOLD,
Solicitor General, 

JERRIS LEONARD,
Assistant Attorney General,

LOUIS F. CLAIBORNE,
Deputy Solicitor General,

Department of Justice, 
Washington, D.C. 20530.



J tt the ^ttpreme fljaitrf of the United States
O cto ber  T e r m , 1969

Xo. 60

R everend E. S. E vans, 'et al., petitioners 
v,

G uyton O. A bney, eT al.

O N  W R IT  OF C E R TIO R AR I TO THE SUPREM E COURT OF GEORGIA

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

The ease is fully stated in the brief filed on behalf 
o f the petitioners and we do not recapitulate the facts 
here. We submit this short memorandum to focus on 
particular arguments and to express the interest of 
the United States.

The government participated in this Court when the 
ease was here before as Evans v. Newton, Xo. 61, 
October Term, 1965, 382 U.S. 296. As it happens, the 
United States has a special connection with Baeons- 
field through substantial federal aid granted for the 
improvement of the facility some years ago and as­
surances then received that the public character of 
the park would not be changed. It is, moreover, a

(l)

368- 236— 69



2

matter o f concern that all the residents of a munici­
pality have been deprived of an important public 
facility on account, of race. Then, as now, however, 
there was more at stake than non-diseriminatory en­
joyment of a large, recreational park in Macon, 
Georgia.

As the case returns, it involves potentially far- 
reaching questions relating to the enforcement of 
racially restrictive, stipulations in grants establish­
ing charitable trusts. The United States speaks to 
those issues because of the continuing national con­
cern to eradicate race discrimination in our public life.

... ; ABGTJMEWT

The ultimate question in this case is whether a 
largo recreational park which this Court has held 
subject to the constitutional rule of nondiscrimina­
tion shall be closed and the property returned to 
private hands rather than being opened up to the 
Negro citizens of the area. The Georgia courts have 
so decreed, declining to disregard the now unenforce­
able racially restrictive provision of the will which 
established the park half a century ago. Those who 
support the judgment below—including the adminis­
trators of the park, the trustees of the property, and 
the heirs of the testator, with no opposition from the 
municipality which would lose an important recrea­
tional facility—argue that this decision ends the mat­
ter, insisting that there is no federal constitutional 
question involved. We disagree, sharing the view of 
the petitioners that the Fourteenth Amendment stands 
in the way of this result.



3

1. At the outset, we confront the claim that the 
-case involves nothing more than the construction of a 
will and an application of the local law of charitable 
trusts and therefore presents no federal question 
whatever. The answer, we suggest, is that given by 
this Court when immunity from scrutiny was asserted 
writh respect to a discriminatory exercise of the gen­
erally absolute power to redefine municipal bound­
aries: insulation from federal judicial review, “ is not 
carried over when state power is used as an instru­
ment for circumventing a federally protected right.” 
Gomillion v. Lightfoot, 364 II.S. 339, 347. The tradi­
tionally local setting does not oust the constitutional 
inquiry when the charge is, as here, that State action 
threatens to deny important public benefits on the 
ground of race.

What is more, the present ease does not intrude 
far into the traditional domain of private choice. No 
one here is remotely suggesting review of the motives— 
even racial bias—which govern the decisions of testators 
in writing or rewriting wills or establishing trusts. Nor, 
for that matter, do the present arguments call into 
question the power of any private individual to revoke 
a grant, terminate a trust, or close an established facility 
over which he has retained control—or to abandon a 
business—rather than comply with a federal constitu­
tional or statutory requirement of non-discrimination. 
We deal only with affirmative State action with­
drawing a public facility to avoid a declared obliga­
tion to cease discrimination on the basis of race.

And, finally, the case does not involve any real issue 
of construing a testator’s actual intent. Although Ben-



4

ator Bacon made clear that he shared the prevailing 
prejudice of his time and place against the “mixing” 
of the races “ in their social relations,”  then thought 
to include the use of recreational facilities (cf. Civil 
Bights Cases, 109 U.S. 3, 22, 24), he did not express 
himself on the question whether the racial restriction 
in his grant, if unenforceable, should defeat his in­
tention to establish a public park. There is no way 
of knowing what his choice would have been had he 
known the present alternatives when he wrote his 
will. Still less is there any basis for saying that he 
would wash Baeonsfield closed altogether after half 
a century because the law now requires that ISTegroes 
also be admitted. It is obvious the Senator never ad­
verted to the eventuality that his “perpetual” grant 
should be withdrawn from the public and given over 
to his heirs. Indeed, it is doubtful whether any right 
of reversion was meant to be attached to his gift to 
the municipality.

The fact of the matter is that the decision to prefer 
closure to non-discrimination is not attributable to 
Senator Bacon, but to the State of Georgia, acting 
through its courts, at the prompting of the administra­
tors of the park (who may, in that capacity, be deemed 
public officers, since they are administering a public 
facility). The reversion of the Baeonsfield property to 
private hands did not occur automatically, by opera­
tion of law: the active participation of an agency of 
the State necessarily intervened before that result 
could be accomplished. Nor was the decree a mere 
formality, inexorably predetermined by events. There 
were many alternatives, one of which had to be se­



5

lected. Our submission is that Georgia contravened 
the Fourteenth Amendment by making a discrimina­
tory choice.

2. What were the options? In the first place, the 
restrictive provision might have been treated as not 
written, because contrary to overriding public policy 
embodied in the supreme law of the land. Cf. Hurd 
v. Hodge, 334 U.S. 24, 34-36. In the absence of any indi­
cation that a comparable facility was then available to 
the iSTegro residents of Macon, it is doubtful that Sen­
ator Bacon’s attempt to exclude them totally from a 
public park satisfied even the “ separate but equal” doc­
trine of Pless-y v. Ferguson, 163 U.S. 537, prevailing in 
1911 when the will was written. And it is at least argu­
able that the intervening decision in Buchanan v. 
Warley, 245 U.S. 60, outlawed racial restrictions of 
this kind before the bequest of the park property to the 
public was executed in 1920. But even if it was only 
later that it became constitutionally unenforceable, the 
Georgia courts might have struck the clause prospec­
tively, thus avoiding giving any effect to an offensive 
stipulation. Cf. Barrows v. Jackson, 346 U.S. 249, 254.

Another alternative was to decline reversion on the 
ground that the park had been irrevocably dedicated 
to the public. As we have noted, Senator Bacon’s will 
did not provide for contingent reversion to his heirs; 
on the contrary, the instrument required that “all 
right, title and interest” in the property, expressly 
including “ all remainders and reversions,” be vested 
in the municipality, for the “perpetual and unending”



6

benefit of the public, and, specifically, to be “ forever 
used and enjoyed as a park and pleasure ground,” 
“ under no circumstances”  to be “ sold or alienated or 
disposed of, or at any time for any reason devoted 
to any other purpose or use”  (A. 19; see also, the 
last sentence of Item 3rd of the Codicil, at A. 30). 
Both the deed from the executors to the City exe­
cuted upon delivery of the property in 1920 (A. 353; 
see also A. 405-409) and later representations made 
to the United States (A. 440-441, 448, 451) indicate an 
indefeasible title in the municipality. So, also, the 
actual use of the park by the public for half a century 
argued against implying a requirement of reversion. 
See Ga. Code § 85-410.

Of course, if  the municipality had been found to 
hold an irrevocable title to the property, the decree 
below could not have been entered. The suit of the 
heirs, lacking any legal interest, would have been 
dismissed. The City itself presumably could not close 
the park merely to avoid desegregation. Cf. Griffin v. 
School Board, 377 U.S. 218. And, at all events, the 
city was not praying for such a result; indeed, the 
State Attorney General, representing the public bene­
ficiaries, was, at least formally, urging continuance of 
the park (see A. 502, 509, 512, 515).

Finally, the most obvious solution was to apply the 
cy pres principle to continue Baconsfield as a public 
park, albeit desegregated, on the ground that this 
would be carrying out the dominant purpose of the 
charitable trust. See Ga. Code § 108-202. Surely, it 
would have been natural to view the establishment of 
a public recreational facility as the main object of



7

the trust and to find that the constitutionality required 
admission of Negroes—which did not oust the original 
class of beneficiaries—would not defeat that goal. 
A  charitable court might indulge the supposition that 
Senator Bacon himself would amend his grant to re­
move the exclusionary clause if  he were alive in the 
changed circumstances of today. But, however that 
may be, it was certainly within the normal boundaries 
of the eij pres doctrine to treat as incidental, and not, 
of the essfenee, the racial stipulation attached to the 
trust. Indeed, it is difficult to understand how the 
courts below could find that exclusion of Negroes, 
rather than continuation of the park as a public fa­
cility, was'’ the fundamental purpose of the grant.

In our tview, the availability of the several less 
drastic options, each apparently consistent with loeal 
law, invalidates the choice made. That is true, we 
believe, even if each of the alternatives was equally 
permissible as a matter of State law. Whatever the 
proper limits of the principle that the Constitution is 
not violated by neutral State action unavoidably sup­
porting a private discriminatory decision, but see 
Shelley v. Kraemer, 334 U.S. 1, the claim of neutrality 
will not avail when, in light of other possible solu­
tions, the means selected needlessly aids discrimina­
tion. Cf. Reitmcm v. Mulkey, 387 U.S. 369. As a 
matter of fact, however, it seems plain that the 
courts below were not confronted with an evenly bal­
anced series of options; everything favored a resolu­
tion that would permit continuation of the park. In 
the circumstances, we are inevitably led to the conclu­
sion that in preferring the last resort of reversion the



8

Georgia courts were applying a special rule which 
accords critical weight to racial restrictions. It is of 
course immaterial whether the rule was independently 
fashioned by the courts or merely reflects the public 
policy of the State. In either case, impermissible 
governmental action is present: the attempt to escape 
official responsibility by invoking Senator Bacon’s 
supposed preference cannot succeed. Cf. Burton v. 
Wilmington Parking Authority, 365 IT.S. 715, 725.

3. It only remains to respond briefly to the sug­
gestion that the decree below cannot offend the Con­
stitution because the petitioners and the class they 
represent have no “ federal right” to enjoy Bacons- 
field Park and thus have not been legally injured by 
the action which closes it. There are several answers.

To be sure, the Fourteenth Amendment does not 
grant petitioners a right, simplidter, to enjoy the 
Baeonsfield property. But it does assure that they 
shall not be excluded from the benefits of a public 
facility on the ground of race. And that is precisely 
what is threatened here: the method is a total closure 
of the park, but the purpose is racial, and the effect, 
so far as Negroes are concerned, is the same as if 
whites remained free to enjoy the park. It does not 
alleviate the practical injury to the class that others 
also are adversely affected by the discrimmatorily 
motivated action. “ Equal protection of the laws is not 
achieved through indiscriminate imposition of in­
equalities.”  Shelley v. Kraemer, supra, 334- U.S. at 22, 
It is, moreover, plain that the disadvantaged Negro 
community of Macon will suffer unequally by the



9

withdrawal of Baconsfield to private lands. Cf. Grif­
fin v. School Board, supra.

There is another aspect to the decision below. The 
fact is that Negroes are to be deprived o f the park 
solely because they insist on exercising their declared 
right to share it so long as it remains open to the 
public. That is more than imposing an impermissible 
penalty on the assertion of a constitutional right, 
cf. Shapiro v. Thompson, 394 U.S. 618, 631; the con­
sequence is so drastic as wholly to discourage the 
bootless effort in future. Cf. Barrows v. Jackson, 
supra. And there is of course a corresponding en­
couragement to resist voluntary acquiescence in non­
discrimination. That, too, is an involvement forbidden 
to State officers by the Fourteenth Amendment. Cf. 
Reitrnan v. Mulkey, supra; Anderson v. Martin, 375 
U.S. 399; N.A.A.C.P. v. Alabama, 357 U.S. 449, 463.

Finally, and perhaps most important, the decision 
below injures the Negro citizens of Macon in the same 
fundamental sense as all officially supported racial 
discrimination. Here, as in Strauder v. West Virginia, 
100 U.S. 303, 308, the published official action directed 
at Negroes as a race “ is practically a brand upon 
them, affixed by the law, an assertion of their in­
feriority, and a stimulant to that race prejudice which 
is an impediment to securing to individuals of the 
race that equal justice which the law aims to secure 
to ail others.” This alone condemns the action of the 
State courts, regardless of whether petitioners can 
show any more tangible loss. Cf. Brown v. Board of 
Education, 347 U.S. 483, 493-495. As we view it, the 
decision strains to reach the extreme result of reversion 
and thereby announces an official view that the



10

Negro’s presence in the park would be so obnoxious 
that it is preferable to close the facility altogether. 
That, we submit, is a plain denial of that “ equal 
protection of the laws”  which the Fourteenth Amend­
ment was framed to assure.

CONCLUSION

For the reasons stated, the judgment below should 
be reversed.

Respectfully submitted.
E rw in  N. Griswold,

Solicitor General.
-Terris L eonard,

Assistant Attorney General.
Louis F. Claiborne, 

Deputy Solicitor General.
N ovember 1969.

U.S.  GOVERNMENT PRINTING OFFICE: 1969