Watson v. City of Memphis Brief for Petitioners

    )

I n the

(Erntrl nf tltr H&nxtvb BtnUs
O ctober T er m , 1962 

No. 424

I. A. W atson , J r ., et al.,
Petitioners,

C it y  of M e m p h is , et al.

o n  w r i t  o f  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  c o u r t  o f  a p p e a l s  
FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONERS

J ack  Greenberg 
Constance B aker  M otley 
D errick A. B ell , Jr.
N orman  C. A m aker  

10 Columbus Circle 
New York 19, New York

A. W. W il l is , Jr.
588 Vance Avenue 
Memphis, Tennessee

Attorneys for Petitioners
B. L. H ooks
C. 0. H orton 
B. F . J ones 
H . T . L ockard
R. B. S ugarm on , J r .

Memphis, Tennessee

Of Counsel



I N D E X

PAGE

Opinions Below ...............................................................  1

Jurisdiction ..............   1

Questions Presented ........................................................ 2

Constitutional Provision Involved .................................  2

Statement ...................    3

Argument ............................   7

I. Constitutional Eights Should Be Enforced 
Immediately. To this Established Eule the 
Second Brown Decision Is a Narrow Excep­
tion Which Was Never Intended to Cover 
Anything But Public Elementary and Sec­
ondary Schools ....................    7

II. Irrespective of Whether the Second Brown 
Decision Has Any Applicability Beyond the 
Area of Elementary and Secondary Schools,
It Does Not Apply to Public Eecreational 
Facilities ..............   10

III. Assuming That in Some Cases the Principles 
of the Second Brown Decision May Be Ap­
plied to Delajr Desegregation of Public Eecre­
ational Facilities, This Eecord Presents No 
Considerations Which Justify Delay .........  12

C oxclttsion 22



11

T able of C ases

page

Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 
1959), aff’d sub nom. Faubns v. United States, 361 
U. S. 197.................................................... ...................  16

Booker v. Tennessee Board of Education, 240 F. 2d
689 (6th Cir. 1957) .......... ..................... ................ ......  9

Brown v. Board of Education, 347 U. S. 483 (1954) ....8,10 
Brown v. Board of Education, 349 U. S. 294 (1955) ....2, 6, 7,

8,9
Buchanan v. Warley, 245 U. S. 60 (1917) ............... ......  15
Burton v. Wilmington Parking Authority, 365 U. S.

715 (1961) ....................................................................  17
Bush v. Orleans Parish School Board, 187 F. Supp. 42 

(E. D. La. 1960), aff’d 365 U. S. 569; 188 F. Supp.
916 (E. D. La. 1960), aff’d 365 U. S. 569 .................. 16

City of Fort Lauderdale v. Moorhead, 152 F. Supp. 131
(S. D. Fla.), aff’d 248 F. 2d 544 (5th Cir. 1957) ...... 17

City of St. Petersburg v. Alsup, 238 F. 2d 830 (5th
Cir. 1956), cert, den., 353 U. S. 922 (1957) ..............  16

Clemons v. Board of Education of Hillsboro, Ohio, 228
F. 2d 853 (6th Cir. 1956) ........................ ...................  22

Cooper v. Aaron, 358 U. S. 1 (1958) .......................... 19
Cummings v. City of Charleston, 288 F. 2d 817 (4th 

Cir. 1961) ........... ........ ....... ..........................................  7>9

Dawson v. Mayor and City Council of Baltimore, 220
F. 2d 386 (1955), aff’d 350 U. S. 877 .........................  9

Department of Conservation and Development v. Tate,
231 F. 2d 615 (4th Cir. 1956), cert, den., 352 U. S.
838 (1956) .......... ................................................. .......  16



PAGE

Detroit Housing Commission v. Lewis, 226 F. 2d 180 
(6th Cir. 1955) ...............................................................  7, 9

Florida ex rel. Hawkins v. Board of Control, 347 U. S.
971; 350 U. S. 413 ........... ............... ............................ 9

Gayle v. Browder, 352 U. S. 903 ..................................... 8

Hall v. St. Helena Parish School Board, 197 F. Snpp.
649 (E. D. La. 1961), aff’d 368 IT. S. 515 (1962) ........ 16

James v. Almond, 170 F. Snpp. 331 (E, D. Va. 1959), 
app. dismissed, 359 IT. S. 1006 .....................................  16

M'cLanrin v. Oklahoma State Regents, 339 U. S. 637 .... 7
Mayor and City Council of Baltimore v. Dawson, 350

U. S. 877 ........................................................................  9
Muir v. Louisville Park Theatrical Ass’n, 347 IT. S. 971 20

Pennsylvania v. Board of City Trusts of Philadelphia,
353 U. S. 230 (1957) .................... ...............................  17

Sipuel v. Board of Regents of University of Oklahoma,
332 U. S. 631 .............. ................................................  7

Sweatt v. Painter, 339 U. S. 629 ..................................... 7

ill

Taylor v. Louisiana, 370 U. S. 154 (1962) 15,19



IV

S tatutes and Oth er  A uthorities

page

Constitution of the United States, Fourteenth Amend­
ment, Section One .......................................................  2

United States Code, Title 28, §1254(1) .....     1

United States Code, Title 28, §1343(3) ........   3

United States Code, Title 28, §§2201, 2202 ......    3
United States Code, Title 42, §§1981, 1983 .....    3

Southern School News (December 1962) .....................  10



I n th e

(Hxmvt uf tlj? 3lnit^ States
O otobeb T eem , 1962 

No. 424

I. A. W atson , Jb., et al.,
Petitioners,

Cit y  oe M e m p h is , et al.

ON W BIT OP CEBTIOBABI TO THE UNITED STATES COUBT OE APPEALS 
EOB THE SIXTH CIECUIT

BRIEF FOR PETITIONERS

Opinions Below

The district court rendered an unreported oral opinion 
(R. 105). Its judgment (R. 102-04) was filed June 20, 1961. 
Its Findings of Fact and Conclusions of Law (R. 91-101), 
filed on June 27, 1961, are unreported. The opinion of the 
Court of Appeals (R. 111-122) is reported at 303 F. 2d 863.

Jurisdiction

The judgment of the Court of Appeals was entered June 
12, 1962 (R. 110). The petition for writ of certiorari was 
filed September 10, 1962, and was granted November 19, 
1962 (R. 123). The jurisdiction of this Court rests on 28 
U.S.C. 1254(1).



2

Questions Presented

Petitioners sued to enjoin the continued operation of the 
Memphis park system on a racially discriminatory basis. 
Relying on the decision in Brown v. Board of Education, 
349 U. S. 294 (1955), the district court denied the injunction 
and accepted respondents’ plan to desegregate gradually 
over a period of years. The Court of Appeals affirmed on 
the same ground.

Do the principles stated in the second Brown opinion, 
which allow public school authorities to proceed toward de­
segregation “with all deliberate speed” :

1. Have any application beyond the field of public edu­
cation?

2. Apply to the field of public recreation ?

3. If applicable to public recreation, justify continued 
segregation absent a showing of serious administrative im­
pediments to desegregation?

Constitutional Provision Involved

This case involves Section One of the Fourteenth Amend­
ment to the Constitution of the United States.



3

Statement

On May 13, 1960, petitioners for themselves and other 
Negro citizens residing in Memphis, filed suit in the United 
States District Court for the Western District of Tennessee, 
Western Division, for a declaratory judgment and per­
manent injunction restraining the Memphis Park Commis­
sion and others from operating public recreational facilities 
on a racially segregated basis. Jurisdiction was based on 
28 U.S.C. §1343(3), 28 U.S.C. §§2201, 2202 and 42 U.S.C. 
§§1981,1983.

In substance they complained that defendants main­
tained some facilities exclusively for white and others ex­
clusively for Negro citizens. Petitioners further alleged 
that they and other members of the class attempted to use 
facilities restricted to white persons and were barred or ar­
rested on account of race or color contrary to the equal 
protection clause of the Fourteenth Amendment and 42 
U.S.C. §1981 (R. 2).

July 1, 1960, defendants answered (R. 8-12). The answer 
did not deny operating segregated recreational facilities. 
Rather, defendants asserted in justification: that facilities 
for Negroes were equal to those for whites; that Memphis 
provided a system of neighborhood parks designated for 
whites or Negroes according to the racial make-up of the 
area and that “ [i]n other than residential areas, the parks 
are used generally by all the citizens of Memphis” (R. 9) ;a 
that certain lands upon which recreational facilities were 
situated were acquired under restrictive conditions relating 1

1 Evidence, however, showed that the neighborhood policy was 
not uniformly adhered to in that in some previously white neigh­
borhoods which became predominantly Negro, the parks or play­
grounds were still maintained exclusively for whites (R. 78). More­
over, at least one city-wide facility, Crump Stadium, was still 
operated on a segregated basis (R. 79).



4

to use solely by white persons; that “problems” in the na­
ture of “ riots, violence, and disharmony” (B. 10, 11) would 
be the likely consequence of immediate court-ordered de­
segregation of all facilities and, therefore, these defendants 
in discharge of their duties as public officers and in exercise 
of their police power felt it necessary to maintain the sys­
tem as constituted; that a loss of revenue would result 
from a loss of attendance caused by fear of disorders; that 
the expense of operating the parks would be prohibitive 
because of the extra police protection required, since “ the 
incidence of violence, vandalism and disorders among vis­
itors to the parks of the City of Memphis is greatly in­
creased in those parks frequented by Negro citizens of the 
City of Memphis” (R. 12).

The cause came on for trial June 14-15, 1961. The facts 
were established substantially as plaintiffs alleged: The 
City of Memphis, through its Park Commission, operated 
and maintained a public recreational system of 108 parks2 
on city-owned land. Fifty-eight of the parks were re­
served for the exclusive use of white persons, 25 were for 
Negroes, and 25 were partially or wholly integrated.3 The 
facilities reserved for whites included 40 neighborhood play­
grounds, 8 community centers, 5 golf courses and 5 swim­
ming pools (R. 93). Negroes who attempted to use “white” 
facilities were denied admission, and in some eases were 
arrested if they refused to leave when ordered (R. 25, 
74-77). Reserved for Negroes were 21 neighborhood play­

2 In addition, the Park Commission operated 56 playgrounds and 
facilities on property owned by various churches; 30 designated as 
“white,” the rest restricted to Negroes (R. 70).

3 A t at least one of these facilities, however, racial bars had not 
been completely removed; the toilet facilities at Overton Park Zoo 
were still segregated at the time of trial (R. 83). Testimony also 
revealed that at one of the older “integrated” facilities, Court 
Square, there were toilets for whites only (R. 75).



5

grounds, 4 community centers, 5 swimming pools, and 2 
golf courses (R. 93).

The Park Commission’s policy was to open up parks 
from time to time for all citizens (R. 39). It had recently 
removed racial restrictions at three “ city-wide” facilities 
as part of its gradual desegregation plan (R. 40), and other 
facilities throughout the city were scheduled to be deseg­
regated on a gradual basis in accordance with that plan 
(R. 41). Commission officials and the local chief of police 
testified that, in their opinion, any desegregation in public 
recreational facilities taking place in any manner other 
than that proposed by the Commission’s gradual plan would 
produce turmoil, confusion, and perhaps bloodshed in the 
City of Memphis (R. 42, 48, 53, 88), although there had 
not been any violence in the past due to the integration of 
facilities nor had any “agitators” appeared (R. 53, 81). 
The belief that immediate integration of all facilities would 
lead to violence was based on anonymous letters and phone 
calls that were received when facilities had been integrated 
in the past (R. 53). They further testified that Memphis, 
having been “singularly blessed by the absence of turmoil 
up to this time,”  the Park Commission desired to make all 
City-wide facilities available to Negroes “with all deliberate 
speed” (R. 43).

There was evidence relating to an art gallery and museum 
known as the “Pink Palace” in support of defendants’ 
assertion that certain lands upon which public recreational 
facilities had been built had been acquired through deeds 
containing racially restrictive covenants. It was urged, 
therefore, that complete integration should await construc­
tion of these deeds by the Tennessee courts (R. 39).4

4 However, the Pink Palace Museum had been opened for Negro 
use one day per week (R. 50) without objection from the corporate 
grantor or its successors (R. 50, 51).



6

On June 20, 1961, the District Court, the Honorable 
Marion Speed Boyd presiding, entered judgment denying 
petitioners’ application for permanent injunction as prayed 
in the complaint, approving the Park Commission’s gradual 
plan (R. 102-104), requiring defendants to submit a further 
plan with respect to integration of playgrounds and com­
munity centers within a period of six months,5 and staying 
decision with reference to the Pink Palace Museum until 
the Chancery Court of Shelby County, Tennessee, had an 
opportunity to determine the effect of integration of the 
races upon the title to this property (R. 103). The Court 
in its Findings of Fact and Conclusions of Law (R. 91-101) 
found that because of the local conditions in Memphis, 
additional time was needed to accomplish full desegrega­
tion of the public recreational facilities and that the gradual 
plan was in the public interest and was “ consistent with 
good faith implementation of the governing constitutional 
principles as announced in Brown v. Board of Education 
[349 U. S. 294 (1955)]” (R. 101).

Petitioners on July 7, 1961, appealed to the United States 
Court of Appeals for the Sixth Circuit. On June 12, 1962, 
that Court affirmed the judgment of the District Court on 
the Findings of Fact and Conclusions of Law of the Dis­
trict Judge. The Court of Appeals stated that the sole 
issue tendered by petitioners on their appeal was whether 
the allowance of any delay in total desegregation of all 
Memphis recreational facilities deprived them of their con­
stitutional rights, i.e., whether the decision in the second 
Brown case applied to public recreational facilities as well 
as to public schools. In deciding this issue, the Court said:

5 Under the provisions of this plan, which was submitted on oral 
argument in the Court of Appeals at that Court’s request, complete 
integration of all facilities would not occur until 1971. The plan, 
however, was not made part of the record.



7

We are of the view that the principle stated in 
Brown v. Board of Education, supra, relating to the 
desegregation of schools, is applicable to the present 
case, involving the desegregation of recreational facil­
ities of the City of Memphis. In our opinion the 
Brown decision is not limited to cases involving pub­
lic schools, as is here contended by appellants. Detroit 
Housing Commission v. Lewis, 226 F. 2d 180, 184, 
185 (C. A. 6); see also Cummings v. City of Charleston, 
288 F. 2d 817 (C. A. 4) (R. 120).

A R G U M E N T

I.

Constitutional Rights Should Be Enforced Immedi­
ately. To This Established Rule the Second Brown Deci­
sion Is a Narrrow Exception Which Was Never Intended 
to Cover Anything But Public Elementary and Secondary 
Schools.

There can he no question that the Fourteenth Amend­
ment entitles petitioners to the nondiscriminatory use of 
all parks and recreational facilities operated by the City 
of Memphis. At issue here is whether any justification 
exists for prolonged abridgement of these rights. Peti­
tioners find none and contend that the desegregation of 
these public recreational facilities must be effected im­
mediately.

Constitutional rights are personal and present. This set­
tled principle, which means that the enforcement of recog­
nized constitutional rights cannot be put off until some 
future time, has often been invoked by this Court in cases 
closely analogous to this one. See McLaurin v. Oklahoma 
State Begents, 339 U. S. 637, 642; Sweatt v. Painter, 339 
U. S. 629, 635; Sipuel v. Board of Regents of University



8

of Oklahoma, 332 II. S. 631, 632-33. The logic of the rule 
is demonstrated by the paradox that would ensue if this 
case were affirmed: thousands of Negroes in Memphis 
would be denied admission to scores of city parks for sev­
eral years although the right of which they demand im­
mediate exercise has been recognized—in the abstract—by 
the highest court in the land.

The courts below have held that the second Brown deci­
sion, Brown v. Board of Education, 349 U. S. 294 (1955), 
controls this case and permits lengthy delay in the full im­
plementation of petitioners’ admitted constitutional rights. 
Petitioners disagree, for that decision can have no applica­
tion to any area other than public schools.

A fundamental distinction exists between the decision of 
May 17, 1954, and that of May 31, 1955. In the former, 
Brown v. Board of Education, 347 U. 8. 483, this Court 
was acting in its role as expositor of the Constitution, 
and it declared that segregated educational facilities, 
being inherently unequal, constituted a denial of the equal 
protection of the laws. Since 1954, this principle has prop­
erly been extended, by this Court and by the lower courts, 
to every aspect of public activity. However, in 1955, this 
Court was exercising its function as a court of equity, 
which must deal with the circumstances of the particular 
case when framing a specific decree. Recognizing that the 
“ solution of varied local school problems” could best be ef­
fected by the district courts, this Court remanded each of 
the consolidated cases for detailed treatment by the respec­
tive district courts. This remedial determination stemmed 
from an examination of the peculiar difficulties arising from 
the alteration of complex public school systems, and has no 
relevance whatever to other areas in which segregation has 
been enforced.6

. 6 See, e.g., Gayle v. Browder, 352 U. S. 903 (public transporta­
tion) : “The motion to affirm is granted and the judgment is af­
firmed. Brown v. Board of Education, 347 U. S. 483 . . . ” It is to 
be noted that the 1955 opinion was not cited.



9

The narrow compass of the 1955 decision was demon­
strated the following year wdien this Court ordered the im­
mediate admission of a Negro applicant to graduate school. 
Florida ex rel. Hawkins v. Board of Control, 350 U . S. 413 
(1956). On May 24, 1954, the Supreme Court had issued 
a mandate to the Supreme Court of Florida directing that 
the case be reconsidered in light of the decision of 1954 
“ and conditions that now prevail.” Florida ex rel. Hawkins 
v. Board of Control, 347 U. S. 971. Following the Florida 
Supreme Court’s subsequent refusal to grant the Negro im­
mediate relief, this Court held that its previous decision 
“did not imply that decrees involving graduate study pre­
sent the problems of public elementary and secondary 
schools.” 350 U. S. at 413. See also Booker v. Tennessee 
Board of Education, 240 F. 2d 689 (6th Cir. 1957). It is 
also significant that in Dawson v. Mayor and City Council 
of Baltimore, 220 F. 2d 386 (1955), aff’d, 350 U. S. 877 
(1955), this Court affirmed the Fourth Circuit’s ruling 
without opinion, despite the City’s insistence7 that the 
second opinion in Brown should apply.8

Apart from precedent, strong considerations of policy 
suggest that the doctrine of the second Brown opinion 
should be limited rather than extended. First, it is an 
anomaly in the law that personal rights—especially rights 
so highly valued as those protected by the equal protection

7 Jurisdictional Statement, p. 19, Mayor and City Council of 
Baltimore v. Dawson, 350 U. S. 877 (No. 232, Oct. Term 1955).

8 Contrary to the conclusion of the court below, the lower courts 
have not countenanced delay in areas other than schools. In De­
troit Housing Commission v. Lewis, 226 F. 2d 180 (1955), the Sixth 
Circuit upheld a district court order requiring immediate assim­
ilation of separate waiting lists for Negro and white housing 
projects. While the relief given could not assure the immediate 
achievement of nonsegregated occupancy, it effected all that could 
possibly be done in the situation. In Cummings v. City of Charles­
ton, 288 F. 2d 817 (4th Cir. 1961) (municipal golf course), the 
plaintiffs received all the relief they requested.



10

clause—should not be enforced forthwith. Second, around 
the “all deliberate speed” formula has grown a mass of 
litigation which, because of its complexity, severely burdens 
the lower courts. Finally, after nine years of experience 
with the “all deliberate speed” doctrine, 92.2% of the Negro 
school children in 17 states and the District of Columbia 
attend schools with no white students.9 This is the result, 
on the one hand, of widespread disregard of the great prin­
ciple established in 1954, and on the other hand, of the 
tremendous burden which the 1955 decree imposes on those 
who must look to the courts for enforcement of their rights.

II.
Irrespective of Whether the Second Brown Decision 

Has Any Applicability Beyond the Area of Elementary 
and Secondary Schools, It Does Not Apply to Public 
Recreational Facilities.

In the School Segregation Cases, this Court was dealing 
with the problem of transforming totally segregated 
systems of public elementary and high schools into systems 
providing full equality through the elimination of segrega­
tion. Involved in such a transformation, as the Court 
recognized, were taxing problems of an administrative 
nature, particularly those

arising from the physical condition of the school plant, 
the school transportation system, personnel, revision 
of school districts and attendance areas into compact 
units to achieve a system of determining admission to 
the public schools on a nonracial basis and revision

9 Between 1961 and 1962 the percentage of Negro children in 
schools with white students increased from 7.6 to 7.8. See Southern 
School News, p. 1, published by the Southern Education Reporting 
Service (December 1962).



11

of local laws and regulations which may he necessary 
in solving the foregoing problems (349 IT. S. at 300-01).

Clearly, the desegregation of a public recreational system 
presents no such administrative difficulties as might arise 
in public schools. Attendance at public parks is not compul­
sory. Users of parks are not transported to them at public 
expense. Persons need not be assigned to individual parks 
or facilities. Whereas the overcrowding of schools presents 
a serious obstacle to rapid desegregation, overcrowded 
conditions in park facilities are automatically controlled 
by factors of supply and demand; the first comers are 
served while the late comers wait their turn, find other 
accommodations or do without the benefits of the facilities, 
all at their own discretion. Becreational activities, being 
less closely supervised, require fewer personnel than 
schools. Local park authorities are bound by fewer and 
less restrictive state regulations than school boards.

In sum, the administration of a park system is less com­
plex. Effectuation of complete desegregation of public 
parks requires little more than the removal of racial signs, 
and an announcement that racial distinctions wfill no longer 
be observed. In all other respects, the park system can 
operate on a desegregated basis exactly as it does on a 
segregated basis.10

_ 10 Pull integration of park personnel requires some administra­
tive effort, but such relief is not requested in this case.



12

III.

Assuming That in Some Cases the Principles of the 
Second Brown Decision May Be Applied to Delay De­
segregation o f Public Recreational Facilities, This Rec­
ord Presents No Considerations Which Justify Delay.

Petitioners maintain that the second Brown decision 
sanctions delay in the public schools only, and that in any 
event it does not permit continued segregation of public 
recreational facilities. Assuming, however, that neither of 
these arguments finds favor with this Court, it is submitted 
that faithful application of the 1955 decision to the facts 
established in this record requires an order directing im­
mediate desegregation of the Memphis park system.

Petitioners proved at trial that the Memphis Park Com­
mission operates a city-wide, public recreational system 
on an almost wholly segregated basis (R. 92, Finding No. 
V). It was further shown that several Negro citizens had 
been denied admission to or ejected from various facilities 
or arrested for refusing to leave, solely on the ground 
of race. These facts were uncontested. Upon such a clear 
showing of a violation of constitutional rights, normal 
procedure for any court is to formulate a remedy which 
will eliminate such denials forthwith. This the district 
court did not do.

Justification for this departure from normal practice 
was predicated on the Brown opinion of 1955. However, in 
that case this Court did not give the lower courts carte 
blanche to withhold relief in desegregation cases until the 
administrative authorities deemed compliance with the gov­
erning constitutional principles to be convenient or de­
sirable. It merely declared that varying local conditions



13

may at times make immediate compliance impracticable, 
and set forth a list of those administrative problems which 
could be considered as justifiably prolonging the process 
of complete obedience. The burden of presenting the case 
for delay rests on the defendants who have violated the 
Constitution, 349 U. S. at 300, and absent a showing of ad­
ministrative impracticability, the district court’s duty to 
order immediate desegregation remains.

By a parity of reasoning, if the doctrine of “ all deliberate 
speed” is to be applied to recreational systems, delay cannot 
be tolerated unless such administrative factors as those 
listed in the second Brown decision are shown by the public 
officials to require some hesitation in the complete vindica­
tion of a complainant’s rights. Respondents in this case 
utterly failed to carry the burden placed upon them. At 
the trial, their witnesses made dire predictions about the 
consequences of immediate integration, but examination of 
each supposed problem reveals both the inadequacy of 
proof presented and the irrelevance of the considerations 
raised.

Confusion, Turmoil and Bloodshed

Time and again throughout the trial, respondents’ three 
witnesses expressed the fear that confusion, turmoil, 
violence and bloodshed would ensue if desegregation pro­
ceeded rapidly (R. 42, 43, 47, 53-55, 57, 72, 73, 80-87, 87-90). 
However, these oft-repeated convictions were supported 
by almost no facts. One witness testified that he received 
anonymous letters and telephone calls whenever a facility 
was opened to both races (R. 53). Another mentioned that 
policemen sometimes had to be called to control rowdyism 
on the segregated playgrounds, more often on Negro play­
grounds (R. 81). One reference was made to the fact that 
additional police had been assigned to a recently desegre­



14

gated zoo. Finally, one incident was mentioned in which 
“ bloodshed and shootings and knifings” had occurred in 
one Negro park (E. 83). No other evidence of previous 
violence was produced, although racial bars had been 
removed at twenty-five facilities by the time of trial.

On the other hand, the Chairman of the Park Commission 
acknowledged that Memphis has been “ singularly blessed 
by the absence of turmoil up to this time on the racial 
question” (E. 43), and testified that no violence had erupted 
at any of the integrated facilities (E. 53). Indeed, police 
protection in the park system generally seems not to be 
a very serious problem, since there are only fourteen men 
on the city’s entire park police force (E. 84). It also 
appeared from the testimony that the police have been 
able to preserve order since buses in the city were desegre­
gated (E. 87). The record refers to only one instance of 
violent reaction to racial issues in the City of Memphis, 
and in that incident, a sit-in demonstration, the police 
observed the development of mob conflict for “ twenty or 
thirty minutes” before taking action (E. 90).11

Assuming, however, that immediate desegregation of all 
parks would pose a threat to the maintenance of law and 
order, respondents still would not be relieved of the duty 
to remove racial restrictions. This was settled for all time 
in Cooper v. Aaron, 358 U. S. 1 (1958). If the conditions 
existing in Little Eock, to which the President was forced 
to send federal troops, could not excuse postponement of

11 Respondents’ witnesses attempted to make much of Memphis’ 
“peculiar location” in the southwest corner of Tennessee, bordering 
on heavily Negro counties of Mississippi and Arkansas (R. 47-48, 
53-55, 90). Apparently it is feared that immediate and total inte­
gration would cause a massive influx of outside Negroes into Mem­
phis’ parks and promote racial agitation by members of both races. 
Like respondents’ other evidence on the issue of violence, this is 
irrelevant speculation.



15

school desegregation, certainly a city “ singularly blessed 
by the absence of racial turmoil” cannot continue its dis­
criminatory policies in the name of maintaining law and 
order. As this Court held, “ [L]aw and order are not here 
to be preserved by depriving the Negro children of their 
constitutional rights,” 358 U. S. at 16. The case of Buchanan 
v. Warley, 245 U. S. 60, 81 (1917), established the same 
principle over forty-five years ago: “ [Ijmportant as is the 
preservation of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights created 
or protected by the Federal Constitution.” Cf. Taylor v. 
Louisiana, 370 U. S. 154 (1962).

Closing of Facilities

Related to the claim that violence would flare up if 
immediate desegregation were ordered is respondents’ con­
tention that many facilities would have to be closed because 
insufficient personnel would be available to provide police 
protection at all parks (R. 41, 61, 64, 73, 85-86). This 
contention rests precariously on the premise that violence 
would constitute a serious problem. As was observed above, 
precious little evidence justifies concern on this score. 
Furthermore, the existing pattern of residential segrega­
tion (R. 67) substantially reduces the chance that neighbor­
hood playgrounds, which comprise a major portion of the 
park system, will experience much actual desegregation 
even when official restrictions are removed.

On the other hand, in the unlikely event that respondents’ 
fears of widespread public disturbance are vindicated, 
ample police protection is available even in the most ex­
treme situations from state and federal law enforcement 
agencies. Given the capacity of law enforcement officials to 
maintain order, the courts should not be deterred from



16

enforcing constitutional rights by defiant threats to close 
public facilities. Cf. City of St. Petersburg v. Alsup, 238 
F. 2d 830, 832 (5th Cir. 1956), cert, denied, 353 U. S. 922. 
Indeed, in numerous school cases segregation has been en­
joined in the face of closing laws and enforcement of the 
closing laws has been enjoined as well. James v. Almond, 
170 F. Supp. 331 (E. D. Va. 1959), app. dismissed, 359 U. S. 
1006; Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 
1959), aff’d sub nom. Faubus v. United States, 361 U. S. 
197; Bush v. Orleans Parish School Board, 187 F. Supp. 
42 (E. D. La. 1960), aff’d, 365 IT. S. 569; Id., 188 F. Supp. 
916 (E. D. La. 1960), aff’d, 365 IT. S. 569; Hall v. St. Helena 
Parish School Board, 197 F. Supp. 649 (E. D. La. 1961), 
aff’d, 368 U. S. 515 (1962).

Econom ic Loss

The second most important factor (R. 57) motivating 
respondents to proceed slowly was the possibility of reve­
nue losses resulting from a predicted decline in attendance 
at integrated facilities (R. 48, 57-58, 84-85). The only fact 
mentioned in this connection was that three-quarters of a 
million dollars is collected annually from revenue-producing 
facilities. Comparative rates of attendance at segregated 
and nonsegregated parks were not given. No evidence of 
decreasing attendance at integrated facilities was offered. 
This claim is entirely bereft of evidentiary support.

However, respondents’ failure to show that integration 
would cause economic loss is of little consequence. The City 
of Memphis and its Park Commission, as instrumentalities 
of the State of Tennessee, should not be allowed to profit 
from a system based on racial segregation. The lower 
courts have decided this point often. See Department of 
Conservation and Development v. Tate, 231 F. 2d 615 
(4th Cir. 1956), cert, denied, 352 U. S. 838 (1956); City



17

of St. Petersburg v. Alsup, 238 F. 2d 830 (5th Cir. 1956), 
cert, denied, 353 U. 8. 922 (1957); City of Fort Lauderdale 
v. Moorhead, 152 F. Supp. 131 (S. D. Fla.), aff’d 248 F. 2d 
544 (5th Cir. 1957). Cf. also Burton v. Wilmington Parking 
Authority, 365 U. S. 715, 724 (1961).12

Loss of Title to City Properties Burdened With 
Restrictive Covenants

Another consideration purporting to stand in the way of 
immediate desegregation relates to those facilities, partic­
ularly the Pink Palace Museum, located on lands conveyed 
to the city through deeds containing racially restrictive 
clauses (R. 33-37, 50-52, 59-60). The city argued that the 
federal courts should abstain from ordering desegregation 
until the state courts had determined whether title to such 
properties would revert to the grantors if the covenants or 
conditions were breached. To that end, the district court 
ordered the city to seek an adjudication in the state courts 
(R. 103, 108). This was plain error, for whatever the out­
come of that litigation, the city may not continue to operate 
these facilities on a segregated basis. See Pennsylvania v. 
Board of City Trusts of Philadelphia, 353 U. S. 230 (1957). 
This property litigation may be a long and arduous process, 
during which Negroes should not be forced to endure dis­
crimination.

This is particularly true where, as here, constitutional 
rights are being denied on a mere speculation that the

12 rpjjg reSp011(j entg were also solicitous of the vested interest in 
segregation held by private concessionaires who operate under con­
tract with the Park Commission and rely on high rates of at­
tendance (R. 42, 65, 66, 83, 84). Again there was no proof of a 
genuine threat to the concessionaires’ interests. Moreover, if this 
claim could be substantiated, Burton v. Wilmington Parking Au­
thority, supra, which required the lessee to admit Negroes, more 
than establishes the Commission’s duty to desegregate where it 
retains control of policy in the parks.



18

grantor may assert his supposed rights under the racial 
restriction. The deed in question provided that the racial 
restriction could be enforced by the grantor only after he 
had given a written notice and a further ninety-day period 
of continued violation had elapsed (R. 36). It is extremely 
doubtful that a corporate grantor would attempt to enforce 
such a racial condition where its breach was occasioned by 
obedience to an injunction. Indeed, at the time of trial, 
the grantor had given no notice even though the restriction 
was being violated to the extent of allowing Negroes to 
use the Pink Palace on Tuesdays (R. 50-51).

Other Factors

The other considerations urged by respondents—that 
Negro facilities were equal to those provided for whites, 
that immediate desegregation would reduce good will be­
tween the races, and that additional time was needed for 
the citizens of Memphis to adjust to a changing social 
structure—are equally inapposite. To the “ equal facilities” 
argument (R. 44-46, 59, 63, 69, 71, 72, 78), the answer is 
that 58 parks are reserved for white persons, 25 for 
Negroes (R. 69, 92). Regardless of the proportion of 
Memphis’ population which Negroes comprise (35% (R. 
47)), those 25 facilities are necessarily more widely 
scattered throughout the city than the 58 white facilities, 
and thus are less accessible. Indeed it is questionable 
whether separate recreational facilities in a city of 500,000 
can ever be equal, even when judged solely by tangible 
factors. When less tangible factors are considered, it be­
comes relevant that the conceded right of petitioners to 
freedom from segregation is grounded on the premise that 
separate facilities are inherently unequal. Liberation of 
the Negro school child from feelings of racial inferiority 
cannot be achieved by relegating him to a segregated play­
ground after school hours.



19

The contention that existing good will between the races 
would suffer if the Negro petitioners’ rights were vindicated 
immediately is spurious (R. 88). If contingent upon con­
tinued subjection of one race to a position of inferiority, 
this communal bond is hardly worthy of preservation; if 
it is not so conditioned, integration will cause no problem. 
At any rate, Cooper v. Aaron, supra, demonstrates that 
even extreme racial tension cannot prevent the enforce­
ment of Fourteenth Amendment rights.

Additionally, it was pleaded that respondents be given 
the time that gradual desegregation would provide for 
the citizens of Memphis to adjust to new conditions (R. 72, 
89). Except for references to problems of police protec­
tion (but see Cooper v. Aaron, supra; Taylor v. Louisiana, 
supra), respondents offered no proof that gradual adjust­
ment, which prolongs any possible period of disquiet, 
should cause less pain than immediate adjustment. A fair 
reading of this record compels the conclusion that the 
Commission was simply hesitant to move ahead of com­
munity acceptance of this Court’s decisions. As this Court 
held in the Brown case, “ the vitality of these constitutional 
principles cannot be allowed to yield simply because of dis­
agreement with them.” 349 U. S. at 300.

The various contentions raised by respondents reveal a 
fundamental misunderstanding of the nature of the prob­
lems which this Court contemplated as justifying some 
delay in public school desegregation. Obviously this Court 
did not mean that constitutional rights could be deprived 
indefinitely or whenever delay would make the transition 
easier. Rather, as the list of administrative problems set 
out in the Brown opinion implies, delay is only tolerable 
when additional time is needed for the responsible author­
ities to formulate solutions to bona fide administrative 
difficulties, or, to a lesser extent, to carry into execution 
complex administrative procedures. Without exception,



20

respondents in this ease failed to explain to the district 
court how additional time might be used constructively to 
devise administrative procedures for the solution of their 
supposed problems. Bather they urged that the problems 
would disappear if only sufficient time were given for 
desegregation to be effected gradually. Both the letter and 
spirit of the 1955 decision command more diligent effort.18

Finally, respondents urged that they had shown good 
faith. This they claimed with an apparent sincerity14 which 
the facts do not bear out. Although this Court established 
that segregated parks violate the Fourteenth Amendment 
in 1954 (Muir v. Louisville Park Theatrical Ass’n, 347 U. S. 
971), several new parks and facilities have been opened on 
a segregated basis in Memphis since that time (R. 31, 52; 
14, 102). What better opportunity to effectuate of sincere 
policy of gradual desegregation than to admit all citizens as 
each new park is opened? What better way to solidify a 
segregated system than to segregate new facilities? The 
city claimed that all “ city-wide” facilities have been opened 
to both races, but the record shows that Crump Stadium was 
not open to Negroes (R. 79). It was contended that Court 
Square had been desegregated, yet there were no rest rooms 
for Negroes (R. 75). Contrary to announced policy, some 
neighborhood playgrounds in predominantly Negro neigh­
borhoods were still reserved for whites (R. 78-79). And, 
against the protestation that twenty-five facilities had been 
desegregated must be placed the fact that Negroes were not 13 14 * * *

13 Typical of respondents’ approach was the treatment of the 
proposition that “extra supervisors and employees” would be needed 
in newly integrated facilities (R. 47). Having predicted this need, 
the Chairman of the Commission failed to explain why such person­
nel would be needed, how the Commission proposed to meet this 
supposed need, or why time would be necessary to work out a 
solution.

14 The Chairman of the Park Commission stated that he would
“abide by the rules of this court or get off the Park Commission,
because I want no incidents here like they have had in other parts
of the south” (R. 53).



21

adequately informed of their right to attend newly deseg­
regated facilities. The testimony of H. S. Lewis, Director 
of Parks, concerning the recent desegregation of one facility 
is enlightening:

Q. “Was there any publicity given to the fact that it 
had been integrated?” A. “ No.”

Q. “Was there any way that Negroes could know that 
they had a right to use Court Square?” A. “ Except 
they used it and were not chased.”

Q. “ I say if the police do not put them out of a 
particular park then they are free to use it?” A. “ Cer­
tainly.”

Q. “They would not know, according to your testi­
mony, whether they are free to use it until the police 
asked them to get out?” A. “ That could be.”

Q. “Have Negroes been advised of their right to use 
Confederate Park?” A. “ They have used it. Whether 
they have been advised or not is a good question” (R. 
75-76).

Judged in the light of these facts, the Commission can 
hardly assert that good faith, in the ordinary meaning of 
the term, has been shown. Much less has it shown “good 
faith compliance at the earliest practicable date” or “good 
faith implementation of the governing constitutional prin­
ciples.” The case it put before the district court displays 
its apparent inability even to understand those principles.

The district court in this case, although finding that 
Memphis’ recreational system is operated on a racially dis­
criminatory basis, refused to grant either injunctive or 
declaratory relief, approved a tentative plan to open eight 
facilities over a period of two and a half years, granted 
respondents six months in which to file a complete plan, and 
refused to adjudicate the allowability of continued segrega­
tion by state officials on land burdened by a racially re­



22

strictive covenant (R. 102-04). As this brief has under­
taken to demonstrate, the district court’s judgment rested 
on a clearly erroneous conception of the meaning of the 
Brown decision and of the evidence which a court should 
consider. Its action constituted an abuse of discretion which 
the Court of Appeals should have reversed. Clemons v. 
Board of Education of Hillsboro, Ohio, 228 F. 2d 853 (6th 
Cir. 1956); id. at 859 (Stewart, J., concurring). Fully con­
sistent with this Court’s recognition of a District Court’s 
competence to assess local conditions with which it is fa­
miliar is the fundamental proposition that disregard of 
overriding constitutional principles must not be tolerated.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

J ack  G-reenberg 
C onstance B aker  M otley 
D errick  A. B e ll , Jr.
N orman  C. A m aker  

10 Columbus Circle 
New York 19, New York

A. W. W illis , Jr.
588 Vance Avenue 
Memphis, Tennessee

Attorneys for Petitioners

B. L. H ooks
C. 0. H orton 
B. F. J ones 
H. T. L ockabd
R. B. SlTGARMON, Jr.

Memphis, Tennessee
Of Counsel