Simkins v Moses H Cone Memorial Hospital Brief of Appellants
Public Court Documents
December 17, 1962

50 pages
Cite this item
-
Brief Collection, LDF Court Filings. Simkins v Moses H Cone Memorial Hospital Brief of Appellants, 1962. 553bd36c-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a205a696-e90a-467e-9a18-6fe4f979fff1/simkins-v-moses-h-cone-memorial-hospital-brief-of-appellants. Accessed April 22, 2025.
Copied!
In the Hnttt'd States (Enurt nf Appals F or the F ourth Circuit No. 8908 G. C. Simkins, Jr., et al., and United States of A mebic;., Appellants, “ v'“ o Moses H. Cone Memorial H ospital, a corporation, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ■A BRIEF OF APPELLANTS G. C. SIMKINS, JR., ET AL. Jack Greenberg J ames M. Nabrit, III Michael Meltsner 10 Columbus Circle New York 19, New York Conrad 0 . P earson 203% East Chapel Hifl Street Durham, North Carolina Attorneys for G. C. Simkins, Jr., et al. I N D E X Statement of the Case'................................................ .... . 1 Questions Presented .............................................. ............ 5 PAGE Statement of F acts ..................................................... 5 Hill-Bnrton Program ..................... 8 A. Federal Funds for Hospital Construction ........... 9 B. General Facts About Hill-Burton Program ....... 10 C. The North Carolina State P la n .............................. 11 D. Division of Federal and State Controls............... 12 The Training of State Nursing School Students at Cone ....................................................................... 18 Argument ........................................... 20 I. The Appellees’ Contacts With Government Are Sufficient to Place Them Under the Restraints of the Fifth and Fourteenth Amendments Against Racial Discrimination..... ..... 20 Financial Contributions...................................... 21 State and Federal Controls to Implement Public Policy .............................................. 23 Affirmative Governmental Sanction of Dis crimination .................................................. ...... 31 Additional Factors Applicable to Cone Hos pital ......... 33 Conclusion of Part I ............... ........................... 36 11 II. Those Portions of Title 42 U. S. C., §291e(f) and 42 C. F. R., §53.112 Which Authorize Racial Discrimination Violate the Fifth and Fourteenth Amendments ............................................................ 37 Conclusion .................................... ........................ .............. 41 PAGE T able oe Cases Allen v. County School Board of Prince Edward County, 198 F. Supp. 497 (E. D. Va. 1961) .... ...... 23 Ashwander v. Tennessee Valley Authority, 297 U. S. 288 ........................................... .......................................... 40 Bailey v. Patterson, 369 U. S. 31 ............... ................ . 38 Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ..26, 28, 30, 31, 33, 39 Betts v. Easley, 161 Kan. 459, 169 P. 2d 831 ...........27, 28 Bolling v. Sharpe, 347 II. S. 497 ............................... ...20, 39 Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960) ............. ......................... ............. ..22,27,30,31,33 Brown v. Board of Education, 347 TJ. S. 483 .......20, 38, 39 Burton v. Wilmington Parking Authority, 365 U. S. 715 ............................................................20, 21, 22, 23, 25, 26, 31, 32, 34, 35, 36 Civil Rights Cases, 109 U. S. 3 .............................. ... ....20, 31 Cooper v. Aaron, 358 U. S. 1 ...... ............................20, 22, 23 Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 518 .......................................................... ............................ 35 Dawson v. Mayor and City Council of Baltimore, 220 F. 2d 387 (4th Cir. 1955), aff’d 350 U. S. 877 ........... 38 Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), cert. den. sub nom. Casey v. Plummer, 353 U. S. 924 .. 22 I l l Eaton v. Board of Managers of James Walker Me morial Hospital, 261 F. 2d 521 (4th Cir. 1958), cert, den. 359 U. S. 984 .......................................................... 25 Flemming v. South Carolina Electric & Gas Co., 224 F. 2d 752 (4th Cir. 1955), appeal dismissed, 351II. S. 901 ...................................................................................... 33 Freeman v. Retail Clerks Local 1207, 45 Lab. Eel. Ref. Man. 2334 (1959) ......... 30 Gantt v. Clemson Agricultural College of South Caro lina (4th Cir. No. 8871, Jan. 16, 1963) ....................... 39 Gayle v. Browder, 352 U. S. 90 ....................................... 38 Hampton v. City of Jacksonville, 304 F. 2d 320 (5th Cir. 1962), cert. den. sub nom. Gioto v. Hampton, 9 L. ed. 2d 170 ....... ..................................................... .25, 26 Hirabayashi v. United States, 320 U. S. 8 1 ................... 20 Holmes v. City of Atlanta, 350 U. S. 879 ....................... 38 Kerr v. Enoch Pratt Free Library, 170 F. 2d 212 (4th Cir. 1945) ................................... 22 McCabe v. Atchison, Topeka and S. F. R. Co., 235 U. S. 151 (1914) ......... 32 Marsh v. Alabama, 326 U. S. 501 .......................22, 26, 30, 35 Ming v. Horgan, 3 Race Rel. L. Rep. 693 (Cal. Super. Ct. 1958) ............................................................................ 27 Monroe v. Pape, 365 IT. S. 167.................................. ....... 22 New Orleans City Park Improvement Asso. v. Detiege, 358 U. S. 54 ....... ................ ............................................. 38 Nison v. Condon, 287 U. S. 73 ...................................... 22, 33 Norris v. Mayor and City Council of Baltimore, 78 F. Supp. 451 (D. Md. 1948) ............................ ........ .... 35 N. L. R. B. v. Babcock & Wilcox Co., 351 U. S. 105....... 30 PAGE IV Pennsylvania v. Board of Directors of City Trusts, 353 U. S. 230 ........ ........ ..... .................... ................... .......... 34 Plessy v. Ferguson, 163 U. S. 537 ---------------------------- 38 Public Utilities Comm’n v. Poliak, 343 U. S. 451 .......26, 27 Railroad Trainmen v. Howard, 343 U. S. 768 ............... 21 Railway Employees Dept. v. Hanson, 351 U. S. 225 .... 27 Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793 .... 30 Shelley v. Kraemer, 334 U. S. 1 .... ..............................26, 30 Smith v. Allwright, 321 U. S. 649 .................................. 22 State Athletic Commission v. Dorsey, 359 U. S. 533 .... 38 Steele v. Louisville, N. R. R. Co., 323 U. S. 192........... 27 Syres v. Oil Workers Int’l Union, 223 F. 2d 739 (5th Cir. 1955), rev’d per curiam, 350 U. S. 892 ............... 27 Terry v. Adams, 345 U. S. 461-------------------- --------- ----- 22 Turner v. Memphis, 369 U. S. 350 ...............................35, 38 United States v. Raines, 362 U. S. 1 7 .............................. 22 Williams v. Hot Shoppes, 293 F. 2d 835 (D. C. Cir. 1961) ........................... ....... -............................................. 33 PAGE Statutes I nvolved 28 U. S. C,, §§1331, 1343(3) ........................................... 3 28 U. S. C., §2403 .............................................................. 3 42 C. F. R., §53.1 (v) ........................................................ 28 42 C. F. R., §53.11 ............ 16 42 C. F. R., §§53.12, 53.13 ............................................... 17 42 C. F. R., §§53.71-53.80 ................................................. 17 42 C. F. R., §53.111 .......................................... ........ 11,18, 37 V 42 C. F. R., §53.112 .......................................... 2, 5,11,17,18, 21, 37, 38 42 C. F. R., §53.124 ................. 17 42 C. F. R., §53.125 .......................................................... 13 42 C. F. R., §53.127(b) ............. 17 42 C. F. R., §§53.127(c ) ( l) - (9 ) ......................... 13 42 C. F. R., §53.127(d)(l) ...... 15 42 C. F. R., §§53.101, 53.127(d)(2) ................. 13 42 C. F. R., §53.127(d) (4) ..... 18 42 C. F. R., §53.127(d)(5) ............................................... 15 42 C. F. R., §53.127(d) (6) ............................................... 17 42 C. F. R., §53.128 ......... 13 42 C. F. R., §53.130 .................................................... 14 42 0. F. R., §§53.131 et seq........................................... .13,14 42 C. F. R., §53.134 ...... 14 42 C. F. R., §§53.150(a), 53.151 ...... 14 42 U. S. C., §291 ........... 30 42 U. S. C., §291e(a) (b )(0)(d ) .......... ....... .................. - 16 42 U. S. C., §291e(e) ......................................................... 13 42 IJ. S. C., §291e(f) ............. 2,5,11,17,18,20, 31, 32, 37, 38 42 U. S. C., §291f(a)(4)(D ) ............ 17 42 U. S. C., §291f (a) (7) ................ 15 42 U. S. C., §291f (a) (8) .......... 17 PAGE 42 U. S. C., 129 I f id) ....... ........ ........... ......... ............. -.15,16 42 U. S. C., §291f(e) ....... .................. ..... - ..................... 10 42 IT. S. C., §291g .......................................... ................... 10 42 U. S. C., T 29 111 in) ....................................... ....... -..... 13,17 42 1’ . S. C., §291h(d) ...... ............................................... 24 42 IT. S. ('., §291h(e) .................................-............ 14. 21.25 42 U. S. C., §291j .................................................. ............. 17 42 U. S. C., §291m ....... .... .................... - ......................... 15 42 IT. S. C., §§292, et seq.................................................. 15 42 IT. S. C., §292g ............................................ -................ 15 42 IT. S. C., §§1981, 1983 ................................................ 3 State Statutes N. C. Gen. Stats., §§90-1 et seq....................................... 33 N. C. Gen. Stats., §§122-3, 122-5, 122-83, 122-84, 122- 88, 116-26 ........ .................................................. -............. 38 N. C. Gen. Stats., §§130-4 et seq..................................... 33 N. C. Gen. Stats., §131-117 .............................................. 6 N. C. Gen. Stats., §131-120 .............................................. 11 N. C. Gen. Stats., §§131-126.1 et seq. .........................15,16 Private Laws of N. C., 1913, ch. 400 ......................... 6 Session Laws of N. C., 1961, ch. 234 ................ 6 Session Laws of N. C., 1947, c. 933 ............................. 16 vi PAGE V ll Other A uthorities PAGE “ Equal Protection of the Laws Concerning Medical Care in North Carolina” (Subcommittee on Medical Care of the North Carolina Advisory Committee to the United States Commission on Civil Eights) (mimeographed) ................................... ..... .................. 36, 37 “Hill-Burton Program—Progress Report, July 1, 1947- June 30, 1961,” U. S. Department of HEW, Public Health Service Publication No. 880 (1961) ............. . 10 “ The Nation’s Health Facilities: Ten Years of the Hill-Burton Program 1946-1956,” Public Health Ser vice Publication No. 616 (1958) .................................. 31 Reitzes, Negroes and Medicine, 1958 .............................. 36 I n t h e lutteft CEmirt of Appeals F oe the F ourth Circuit No. 8908 G. C. Simkins, Jr., et al., and United States of A merica, Appellants, Moses H. Cone Memorial H ospital, a corporation, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BRIEF OF APPELLANTS G. C. SIMKINS, JR., ET AL. Statement of the Case This appeal is from a final order entered December 17, 1962, granting defendants’ Motion to Dismiss for lack of jurisdiction and denying motions by plaintiffs and the United States (which intervened) for summary judgment (223a). The opinion below, 211 F. Supp. 628, appears at 195a-222a. Plaintiffs, a group of Negro physicians, dentists and pa tients, brought this class action to enjoin two hospitals in Greensboro, North Carolina (the Moses H. Cone Memorial Hospital and Wesley Long Community Hospital, herein after called Cone Hospital and Long Hospital) and their ad- 2 ministrators from continuing to deny them and other Negroes admission to staff and treatment facilities on the basis of race. They also sought a declaration that a portion of the Hill-Burton Act (Hospital Survey and Construction Act of 1946, Act of Aug. 13,1946, 60 Stat. 1041, as amended; 42 IT. S. C. §291 et seq.) and a regulation pursuant thereto (42 C. F. R. §53-112; 21 F. R. 9841) were unconstitutional. The provisions attacked authorize racial segregation or ex clusion of Negroes from hospitals receiving grants under the Act on a “ separate but equal” theory, as an exception to a statutory requirement of racial nondiscrimination.1 | 42 U. S. C. §291(e)(f) provides: “ 291e. General regulations.—Within six months after the enactment of tills title, the Surgeon General, with the approval of the Federal Hospital Council and the Secretary of Health, Education, and Welfare, shall by general regulation prescribe— * * * * * “ ( f ) The State plan shall provide for adequate hospital facilities for the people residing in a State, without discrimination on account of race, creed, or color, and shall provide for adequate hospital facilities for persons unable to pay therefor. Such regulation may require that before approval of any application for a hospital or addition to a hospital is recommended by a State agency, assurance shall be received by the State from the applicant that (1) such hospital or addition to a hospital will be made available to all persons residing in the territorial area of the appli cant, without discrimination on account of race, creed or color, but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, i f the plan makes equitable pro vision on the basis of need for facilities and services of like quality for each such group; and (2) there will be made available in each such hospital or addition to a hospital a reasonable volume of hospital services to persons unable to pay therefor, but an exception shall be made i f such a requirement is not feasible from a financial standpoint.” 42 C. F. E. 553-112 provides: tt* *. “ §53.112 Nondiscrimination. Before a construction application is * recommended by a State agency for approval, the State agency shall obtain assurance from the applicant that the facilities to be built with aid under the Act will be made available without discrimination on account of race, creed, or color, to all persons residing in the area to be served by that facility. However, in any area where separate hospital, diagnostic or treatment center, rehabilitation or nursing home facilities, are provided for separate population groups, the State agency may waive the require ment of assurance from the construction applicant i f (a) it finds that the 3 The complaint asserted “ federal question” and “ civil rights” jurisdiction under 28 U. S. C. §§1331, 1343(3); 42 U. S. C. §§1981, 1983.* 2 Plaintiffs claimed infringement of their rights under the due process clause of the Fifth Amendment and the due process and equal protection clauses of the Fourteenth Amendment to the Constitution. The complaint was filed February 12, 1962 (4 a ); there after defendants moved to dismiss (19a) and filed affidavits and exhibits supporting the motion (20a-67a). Defendants urged that the court lacked jurisdiction over the subject matter saying that plaintiffs claimed civil rights depriva tions only by “private corporations and other individuals” (19a). Plaintiffs countered with a motion for summary judgment (72a) supported by affidavits and certified public documents supporting the complaint (76a-164a).3 The United States of America filed a Motion to Intervene (165a) and a Pleading in Intervention (166a-172a), May 8, 1962. The motion, under 28 U. S. C. §2403 and Rule 24(a), F. R. C. P., asserted the Government’s right to intervene since “ the constitutionality of an Act of Congress . . . af fecting the public interest . . . [was] drawn into ques plan otherwise makes equitable provision on the basis of need for facilities and services of like quality for each such population group in the area, and (b) such finding is subsequently approved by the Surgeon General. Facilities provided under the Federal Act will be considered as making equitable provision for separate population groups when the facilities to be built for the group less well provided for heretofore are equal to the proportion of such group in the total population of the area, except that the State plan shall not program facilities for a separate population group for construction beyond the level of adequacy for such group.” A ' * — 2 The jurisdictional amount was alleged, and plaintiff physicians and den tists asserted a loss of earnings and interference with the practice of their professions (5a, 16a). 3 The affidavits and exhibits in Appellants’ Appendix are fairly repre sentative of the materials. The other materials are largely cumulative or adequately covered by the Findings of Fact. The original record on file here contains all exhibits, including affidavits by all plaintiffs and papers document ing each of the Federal Government financial grants to defendants. 4 tion . . . ” (165a). The pleading in intervention supported plaintiffs’ complaint that defendants’ conduct violated the Fourteenth Amendment and that the portion of the Hill- Burton Act authorizing the Surgeon General of the United States to prescribe regulations concerning separate hospi tal facilities for separate population groups should be de clared unconstitutional (171a-172a). The court heard all pending motions June 26, 1962, granted the motion to intervene (188a), and denied plain tiffs’ motion for preliminary injunction (68a, 192a). As the parties agreed that only legal issues were disputed, the court directed that they file proposed findings and conclu sions based upon the documentary evidence (193a-194a). This was done and all briefs and responses were submitted by J uly 30, 1962. The court determined that there was “ no dispute as to any material fact” on the basis of these submissions and proceeded to find the facts and determine the merits of the case (196a). In an opinion dated December 5, 1962 (195a), the Court said that racial discrimination was “ clearly estab lished” (205a), and that the “ sole question” was whether “ defendants have been shown to be so impressed with a public interest as to render them instrumentalities of gov ernment, and thus within the reach of the Fifth and Four teenth Amendments . . . ” (206a-207a). After examining defendants’ various contacts with federal and state govern mental agencies the Court concluded that defendants were not subject to constitutional restraints against racial dis crimination (221a). The Court refused to decide the validity of the “ separate but equal” provision of the Hill-Burton Act, ruling this unnecessary to the disposition of the case (220a). Judgment was entered accordingly December 17, 1962 (223a). Plaintiffs and the United States filed notices of appeal January 4 and 11, 1963, respectively (224a, 225a). 5 Questions Presented 1. Whether the appellees’ contacts with government are sufficient to place them under the restraints of the Fifth and Fourteenth Amendments against racial discrimination. 2. Whether those portions of Title 42, XL S. C., §291e(f) and 42 C. F. E., §53.112 which authorize racial discrimina tion violate the Fifth and Fourteenth Amendments. Statement of Facts Six plaintiffs are physicians and three are dentists; all are duly licensed and practice their professions in Greens boro. They sought and were denied staff privileges at the hospitals because of racial exclusionary policies (198a, 205a). Two plaintiffs, patients of doctors Noel and Simkins, need and desire treatment by their doctors at defendant hospitals (197a). They sought relief against Long Hos pital’s policy of completely excluding Negro patients, and Cone Hospital’s policy excluding all Negroes but a selected few admitted on conditions not applied to whites (198a).4 The claims of racial discrimination were amply docu mented. Indeed, the hospitals’ applications for federal grants for construction projects stated that “ certain persons in the area will be denied admission to the proposed facilities as patients because of race, creed or color” (93a), and these applications were approved by the North Carolina Medical Care Commission and the Surgeon General of the 4 Cone Hospital’s policy regarding Negro patients is detailed at 80a. Negroes are admitted only where they require services not available at the all Negro hospital, and they have a physician who is on both the Negro hospital and the Cone staffs. Only white physicians are on both staffs. Thus, to transfer a patient must discharge his Negro doctor and obtain a white doctor (see 78a, 83a). 6 United States (99a).5 The North Carolina Medical Care Commission, a State agency (N. C. Gen. Stats. §§131-117 et seq.) planned separate hospital facilities for Negroes and whites in Greensboro, designating Long and Cone for white patients and the L. Richardson Memorial Hospital for Negroes (120a). The project applications reflect the planned racial separation (99a), as well as the Surgeon General’s approval of North Carolina’s “ State Plan” (103a). On the day following the order dismissing the ease, Cone Hospital advised plaintiffs, and publicly announced, that it would consider staff applications from Negroes. The policy with respect to Negro patients was not changed. This development, of course, does not appear in the record, but was confirmed in an exchange of correspondence between counsel. Both Cone and Long are nonprofit hospitals owned and governed by boards of trustees.6 The Wesley Long Hospital is a charitable corporation governed by a selfperpetuating board of twelve trustees (200a). Its Certificate of Incor poration as amended appears at 60a. The Cone Hospital is also a charitable North Carolina corporation governed by fifteen trustees. Cone Hospital’s Articles of Incorporation filed in 1911 (22a), were ratified and certain additional powers and provisions for the future government of the hospital were granted by the State of North Carolina through a Legislative Charter enacted in 1913 (32a-44a; Private Laws of N. C. 1913, Ch. 400), and amended in 1961 (45a-54a; Session Laws of N. C. 1961, Ch. 5 The citations are to the government files on an application by Long Hospital— Project No. NC-311. Similar materials in four other projects ap pear in the record as Exhibits A, G, D and E supporting plaintiffs’ motion for summary judgment. 6 In 1960 the United States had about 5,567 nonprofit hospitals, 1,784 governmentally owned hospitals and 1,010 proprietary hospitals, excluding psychiatric hospitals (175a). 7 234). The currently applicable enactment (45a-54a) pro vides that the 15 Cone trustees be selected for four year terms as follows (50a-52a): (a) Three appointed by Governor of North Carolina; (b) One appointed by Greensboro City Board of Com missioners; (c) One appointed by Board of Commissioners of Guil ford County, North Carolina; (d) One appointed by Guilford County Medical Society;7 (e) Eight seats on board appointed by Mrs. Bertha Cone until her death in 1947, now elected by entire board of 15 members; (f) One seat appointed by Board of Commissioners of Watauga County, North Carolina until 1961 amendment to Charter, now elected by entire board of 15 members. The corporate charters of the hospitals reflect their pur poses to maintain general hospitals on a nonprofit basis. Cone’s charter provides that the “board of trustees shall have full power to prescribe the classes of patients, as re gards diseases,8 who shall be admitted or refused or dis missed: Provided, however, that no patient shall be re fused admission nor be discharged because of inability to pay” (49a-50a). Long’s certificate of incorporation au thorizes it to conduct a general hospital in Greensboro or Guilford County with such facilities as are necessary and desirable to serve “ the public and the community in which said hospital is located” (61a), and its income is to be used for various medical activities including promoting “ the 7 The court below assumed for purposes of its decision, that the Guilford County Medical Society was a “public agency” (207a). Plaintiffs’ argument that the society’s function is “ governmental” in Fourteenth Amendment terms for purposes of this ease appears in the argument, infra p. 33. 8 Emphasis supplied. 8 general health of the community” (65a). Neither hospital’s charter contains any provision explicitly or implicitly au thorizing or requiring the exclusion of Negro professionals or patients. Both hospitals are exempt from ad valorem taxes as sessed by the City of Greensboro and Guilford County at tax rates of $1.27 and $0.82 per $100 valuation respectively. The cost of the construction projects for the two hospitals revealed in this record (Cone: $7,367,023.32; Long: $3,927,385.40) indicates that their property is extremely valuable and that the value of the tax exemption is a sub stantial sum for each hospital.9 Hill-Burton Program Both hospitals have a variety of contacts with govern ment as a result of their involvement in the Hill-Burton hospital construction program. In summary, both hospitals have received large amounts of public funds, paid by the United States to the State of North Carolina and by North Carolina to the hospitals; they received the funds as a part of a “ State Plan” for hospital construction, which contemplates and authorizes them to exclude Negroes and was approved by the Surgeon General of the United States under statutory authorization; and they are subject to a complex pattern of governmental regulations and controls arising out of the Hill-Burton participation. These various relations justify a detailed explanation. 9 Assuming assessment at 50% of actual value, and given the combined city-county rate of $2.09 per $100, Cone’s exemption is worth about $76,985 per annum and Long’s is worth about $40,681 per annum. 9 A. Federal Funds for Hospital Construction When this action was commenced, the United States had appropriated $1,269,950.00 to Cone Hospital and $1,948,800.00 to Long Hospital. Cone had already received these funds which amounted to about fifteen percent of the total construction expenses involved in its two projects. Long had received most of the funds appropriated to it (over $1,500,000 already paid) which constitute about fifty percent of the total cost of its three projects (203a-204a). The following table summarizes the various grants:10 CONE HOSPITAL Project No. and Year Approved Purpose Federal Funds Appropriated 5J8/62 Total Cost of Project Federal % of Cost NC-86 (1954) General hospital Construction $ 462,000.00 $5,277,023.32 NC-330 (1960) Diagnostic and treatment center ; general hospital construction 807,950.00 2,090,000.00 Total $1,269,950.00** $7,367,023.32 17.2%* LONG HOSPITAL NC-311 (1959) New hospital construction $1,617,150.00 $3,314,749.40 NC-353 (1961) Laundry 66,000.00 120,000.00 NC-358 (1961) Hospital Nurses Training School 265,000.00 492,636.00 Total $1,948,800.00** $3,927,385.40 49.6%* *The Court found “ approximately” 15% for Cone and “approximately” 50% for Long. **AU funds to Cone had been paid as of 5/8 /62; $1,596,301.60 had been paid to Long by that date. 10 See, generally, Findings 11 through 17 (201a-204a). Further details appear in the original record, Exhibits A through E to plaintiffs’ Motion for Summary Judgment. (Parts of Exhibit B appear at 93a-103a.) 1 0 B. General Facts About Hill-Burton Program 0 The Hill-Burton program requires that states wishing to participate must inventory existing facilities to deter mine hospital construction needs and develop construction priorities under federal standards. State agencies are designated to perform this function and to adopt state wide plans to be submitted for the approval of the Surgeon General of the United States. The Act establishes grants of federal funds for construction of new or additional facilities for governmentally owned hospitals and voluntary nonprofit hospitals.* In the first fifteen years of the program (1947-1961), approximately $1.55 billion of federal funds were approved for such projects. Slightly more than half of the total went to voluntary nonprofit hospital projects. In the same period state and local funds (governmental and nongovern mental) totaled about $3.38 billion; thus, the federal share of Hill-Burton projects was slightly more than thirty per cent of their total cost. About 238,946 additional hospital beds were made- available by the program.44 The allotment of federal funds among the states is deter mined by a mathematical formula basgd on population and per capita income (42 U. S. C. §291^). The “ federal share” of costs of particular projects within a state is gove|^e^. by federal approved state plans (42 U, SL C. i-9H‘(>)). ' North Carolina’s current plan programs general hospital / facilities based on a “ federal share” of 55% (112a). A helpful description of the over-all program and of the various types of hospitals is contained in the “Affidavit and Report” of the General Coun sel of the Department of HEW who was the principal technical draftsman of the law (173a-188a). This Report was filed in the court below by the United States^-— ■ 12_; See “ Hill-Burton Program—Progres Report, July 1, 1947—June 30, % 1961,” U. S. Department of HEW, Public Health Service Publication No. 880, 1961. 1 1 The Surgeon General has authorized state plans to meet the racial nondiscrimination requirement of 42 U. S. C. §291e(f) by planning separate facilities for “ separate population groups” (42 C. F. E. §53.112). When state plans are submitted on this basis, the state agency and the Surgeon General may waive the requirement that facilities built under the Act “ be made available without discrimina tion on account of race, creed or color, to all persons residing in the area to be served by that facility” (42 C. F. E. §53.112; see also, §53.111). C. The North Carolina State Plan In North Carolina the state agency authorized to operate under the Hill-Burton program is the North Carolina Medical Care Commission (N. C. Gen. Stats. §131-120). The Medical Care Commission has adopted and periodically revised a “ State Plan” for separate facilities for Negroes and whites in the Greensboro area (120a): Existing Acceptable Beds Area Name of Facility Location White Non- White B-6 L. Eichardson Memorial Hospital Greensboro 0 91 Wesley Long Hospital Greensboro 220 0 Moses H. Cone Hospital Greensboro 482 0 Subtotal 702 91 Accordingly, when the various project applications were made by Cone and Long, the required assurance against racial discrimination was waived by the Medical Care 1 2 Commission and this was approved by the Surgeon Gen eral.13 * Federal funds under the program are paid by the United States to the Treasurer of the State of North Carolina, and are disbursed by him to the hospital (I lia ) . D. Division of Federal and ,State Controls The overall plan of the Hill-Burton program reflects a division of power and responsibility between federal and state governments for control and supervision of various matters affecting participating hospitals. The following description of the statutory and regulatory framework ap plicable to defendant hospitals, divides the provisions into seven categories: (1) controls over construction contracts and the construction period; (2) controls over details of hospital construction and equipment; (3) controls over future operation and status of hospitals; (4) controls over details of hospital maintenance and operation; (5) control of size and distribution of facilities; (6) rights of project applicants and state agencies; and (7) regulation of racial discrimination. The following is designed to enumerate and describe the statutes and regulations which are too lengthy conveniently to be set out in full. 1. Controls over construction contracts and the con struction period. (Federally imposed rules.) 13 On Projects NC-86 and NC-330, the Cone Hospital initially gave an assurance of nondiscrimination, but this was withdrawn with the approval of the Medical Care Commission and the Surgeon General, on the ground that “ the non-discrimination agreement was erroneously executed as a result of clerical inadvertence” for which the Commission was responsible (104a-106a, 201a-202a). 13 The Surgeon General is authorized by 42 U. S. C. §291h (a) to enforce certain requirements. Applicable regulations are in 42 C. F. R. §§53.127(c) ( l) - (9 ) ,14 and in §53.128.15 2. Control over details of hospital construction and equipment. (Detailed federal minimum standards, and al lowance for States to impose higher standards.) The Act authorizes the Surgeon General to prescribe “ General standards of construction of hospitals and equip ment for hospitals of different classes and different types of location” (42 U. S. C., §291e(e)). The Surgeon General has adopted such regulations— Subpart M' of the Public Health Service Regulations, “ General Standards of Con struction and Equipment” (42 C. F. R. §§53.131 to 53.155). He has provided that plans and specifications for each project must be in accord with them (42 C. F. R. §§53.101, 53.127(d) (2 )), and that state agencies must adopt standards “not less than” the federal standards (42 C. F. R. §53.125). North Carolina’s State Plan adopts the federal standards as its minimum standards (llO a-llla ). North Carolina’s additional standards for hospital physical facilities are section VI of the licensing regulations (145a-156a), as well as the Building Code and local municipal codes (145a). 14 To briefly summarize the requirements, hospitals must give assurances that: (1) “ fixed price” construction contracts will be used, with competitive bidding and awards to the lowest responsible bidder; (2) construction laborers will be paid federally prescribed minimum wages; (3) contracts will provide against “kickbacks” ; (4) bidding advertisements will await the Surgeon General’s approval of final drawings and specifications; (5) Surgeon General must approve of any contracts in excess of approved costs; (6) contractors agree to furnish performance bonds and insurance; (7) contract changes increasing costs must be approved by Surgeon General; (8) Surgeon General and State agency will have access to inspect work during progress; and (9) competent architects and engineers supervise construction work. 15 This provision governs the details of installment payments and pro vides for State agency inspection of work and certification that federal pay ments are due. 14 Special requirements relate to submission of plans and locations for projects assisted with federal and state funds under the licensing rules (145a-146a). The federal construction and equipment standards are designed “ to insure properly planned and well constructed hospital . . . which can be maintained and efficiently op erated to furnish adequate service” (42 C. F. R. §53.131).16 3. Control of future status and operations of hospitals. (Federal requirements.) The Act provides that if within 20 years after completion of a project a hospital is sold to anyone who is not qualified to file an application under the Act or is not approved by the State agency, or if the hospital ceases to be “non profit,” the United States can recover a proportionate share of its grant to the hospital (42 U. S. C., §291h(e)). The State agency is required to give notice of any such changes of status (42 C. F. R. §53.130). In addition, the State agency is required to certify that an application “ contains reasonable assurance as to title, payment of prevailing rates of wages, and financial support for the non-federal share of the cost of construction and the 16 The federal standards of Subpart M are so detailed that they ean he described here only in very general terms as regulating hospital sites, the departments required in hospitals and the type of facilities to be available in each department, and other requirements for all hospitals. There is de tailed description of the types, sizes, locations, contents, arrangements, equip ment and other characteristics of almost every hospital area. To illustrate the detail, in all hospitals there are required door widths, corridor widths, stair widths, elevator standards, and rules pertaining to laundry chutes, nurses call systems, fire safety, ray protection, radioisotopes, x-ray equipment, ceiling heights, insulation, parking space, and floor, wall, and ceiling finishes (42 C. F. R. 5553.150(a), 53.151). See the detailed regulation of each general hospital department, 42 C. F. R. 553.134. Hospitals must also submit complete equipment lists with their project ap plications for approval by the state and federal agencies. Abstracts of these lists are in the project applications in the record (Exhibits A, B, C, D, E, to plaintiffs’ Motion for Summary Judgment). 15 entire cost of maintenance and operation when completed” (42 C. F. R. §53,127(d) (1)). The regulation requires that hospitals submit proposed operating budgets and other financial data relating to the two year period following completion of a project “ to assure the availability of funds for maintenance and operation” (Id.). 4. Control over details of hospital maintenance and ope ration. (State control of operations required by federal law.) The Hill-Burton Act has a provision entitled “ State control of operations” which denies federal officers “ the right to exercise any supervision or control over the ad ministration, personnel, maintenance, or operation” of facilities receiving grants, “ except as otherwise provided” (42 U. S. C. §291m).17 But, the Act says that State Plans must “provide minimum standards (to be fixed in the dis cretion of the State) for the maintenance and operation of hospitals which receive Federal aid . . . ” (42 U. S. C. §291f(a)(7)). No federal grants may be allotted to any state which does not enact “ legislation providing that com pliance with minimum standards of maintenance and opera tion shall be required . . . ” (42 U. S. C. §291f(d)). Federal regulations require the State agency to certify that each project application “ contains an assurance that the ap plicant will conform to the State standards for operation and maintenance . . . ” (42 C. F. R. §53.127(d) (5)). Accordingly after the passage of the Hill-Burton Act North Carolina enacted a “Hospital Licensing Act” in 1947, (N. C. Gen. Stats. §131-126.1 et seq.) authorizing the adop tion of detailed requirements governing hospital main- 17 Another slightly different provision, 42 TJ. S. C. §292g, relates only to research facilities aided under another law (“ The Health Research Facilities Act of 1956” ; 42 U. S. C, §292 et seq.) and does not apply to hospitals under Hill-Burton. 16 tenance and operation. The standards adopted are in the “ Rules and Regulations for Hospital Licensure” (122a- 157a). The Hill-Burton Act set an initial deadline of July 1, 1948, for states wishing to participate to enact such requirements (42 TJ. S. C. §291f(d)), and North Carolina enacted its Licensing Act in 1947 (Session Laws of N. C., 1947, c. 933; N. C. Gen. Stats. §131-126.1 et seq.). The North Carolina rules (122a-157a) provide in great detail for the management and operation of hospitals, covering a variety of subjects, including as major categories: Ad ministration, Clinical Services, Auxiliary Services, Nursing Service, and Food Service (122a-145a).18 5. Size and distribution of facilities. (Federal and State control.) The Act provides for federal decision as to the number of general hospital beds and other facilities required to provide “ adequate service” in a State, for general methods of distribution in areas of a State, and for the general manner in which a State agency shall determine priorities of projects based on relative need (42 TJ. S. C. §291e(a) (b)- (c )(d )) . State allowances in terms of number of beds per thousand population have been fixed by regulation (42 C. F. R. §53.11), as have the methods to be used by State agencies in distributing hospitals in a State (42 C. F. R. 18 For example, the rules provide among other things for medical staff organization (123a); standards for facilities, organization and procedures in surgical operating rooms (125a-126a) ; equipment organization and pro cedures for the obstetric department (126a-131a); for separation of pedi atric facilities from those for adults and the newborn nursing service (132a) ; the circumstances for administration of anesthesia (132a) ; for clinical patho logical laboratories and blood tests (133a) ; that hospitals have adequate diagnostic X-ray and fluoroscopic examination facilities (134a); designated treatment facilities for emergency or outpatient service (134a); for isolation rooms (135a); regulation of hospital pharmacies (135a-136a) and records (136a-138a); organization of the nursing staff is described, including mini mum numbers (138-139a); and detailed provision for hospital food service is made (139a-145a). 17 §§53.12, 53.13). The “ separate but equal” provisions stipu lates that facilities for separate population groups not be programmed for construction “beyond the level of adequacy for such group” (42 C. F. R. §53.112). Federal standards governing the state agencies’ determination of the priority of projects are set out in 42 C. F. R. §§53.71 to 53.80. See also 42 C. F. R. §53.127(b), and 42 C. F. R. §53.127(d) (6). 6. Rights of project applicants and State Agency. (Fed eral requirements.) A project applicant is granted the right to “ a fair hear ing before the State agency” if “dissatisfied with any action of the State agency regarding its application” (42 C. F. R. §53.124; see 42 U. S. C. §291f(a)(8)). The Act provides that before the Surgeon General may withhold certification of any project, the State agency shall be accorded a hearing by the Surgeon General (42 U. S. C. §291j). A State agency dissatisfied with action of the Sur geon General on a project application may obtain review of his decision in the United States Court of Appeals for the Circuit, and may seek further review in the Supreme Court of the United States (42 U. S. C. §291j). 7. Regulation of racial discrimination. (General federal requirement; States allowed to plan racial separation as exception.) The Hill-Burton Act prohibits racial discrimination in general terms, providing that State Plans “ shall provide for adequate hospital facilities for the people residing in a State without discrimination on account of race, creed or color” (42 U. S. C. §291e(f); see note 1, supra). Both state plans (42 U. S. C. §291f(a)(4) (D)) and project appli cations (42 U. S. C. §291h(a) are subject to the non 18 discrimination requirement. The parallel regulations are 42 C. F. E. §§53.111, 53.127(d)(4). However, the Act authorizes the Surgeon General to make regulations permitting State Plans to provide an exception to the racial nondiscrimination rule by establish ing separate hospital facilities for separate population groups if there is “ equitable provision” for each group (42 U. S. C. §291e(f)). The Surgeon General has promul gated such a regulation (42 C. F. R. §53.112), which stipu lates that the State agency may waive assurances of non discrimination from a hospital if the State Plan otherwise makes equitable provision for each group, and this finding is approved by the Surgeon General. It also includes the Surgeon General’s standard for determining if “ equitable provision” is made for such groups (Id.). The Training of State Nursing School Students at Cone Cone Hospital’s charter includes as one corporate purpose “ the training of nurses, and the giving and receiving of instructions . . . ” (47a-48a). Cone Hospital participates in a nurses training program with two tax supported state schools, The Woman’s College of the University of North Carolina and the Agricultural and Technical College of North Carolina (an all Negro school). Student nurses at the schools receive part of their training at Cone Hospital (55a-57a). Students carry out assignments at the hospital under the supervision of their teachers, including assisting doctors and nurses, treating patients, keeping hospital records, etc. Woman’s College students work periods as full-time ap prentice nurses paid at 3/4ths of beginning nurses pay (57a). Students’ programs are arranged by their teachers but cleared with the hospital (56a). 19 The hospital subsidizes the meals and laundry of the A&T College students. It provides conference and instruc tional rooms without charge (56a). Cone authorized a grant of $100,000 to underwrite the entire cost of the Woman’s College clinical nursing program from 1957 to 1960, and actually paid $86,835.13 under this grant. For the 1960-61 program, the hospital paid $20,000. For the period 1961-1963 Cone paid $25,000; it had an equal amount still available for the period. Cone also gave $10,500 for student scholarship loans for the Woman’s College nurs ing program (57a-58a). The A&T program has cost the hospital $3,337.59 for meal and laundry subsidies since 1954 (56a). The program is beneficial to both colleges, providing clinical experience deemed essential for student nurses. According to the Cone Hospital Director, Cone “ . . . is interested in and has supported both programs as a public service and in order to foster and to reap the intangible benefits to be derived from the creation of sources of well- trained nurses . . . ” , but has “ no priority to employ any nurses graduating in either program . . . ” (59a). Because of the scarcity of nurses in North Carolina the State Commission gives “high priority on its funds” to expanding nurses training facilities for hospitals (116a- 119a). Throughout the nation hospitals perform similar educational functions, and “ teaching hospitals are generally regarded as providing, by and large, the highest quality of care. . . . Although student services are availed of by the hospitals in varying degree, these educational activities incur substantial net deficits which are generally recouped by charging paying patients somewhat more than the im mediate cost of services to them.” (Affidavit of Mr. Allison W illeox; 177a). 20 A R G U M E N T U The Appellees5 Contacts With Government Are Suffi cient to Place Them Under the Restraints of the Fifth and Fourteenth Amendments Against Racial Discrimina tion. Decisions of the United States Supreme Court leave little doubt that governmental action as broad, significant, and effective as that found in this case results in the ap plication of the restraints against racial discrimination of the due process clause of the Fifth Amendment19 and the due process and equal protection clauses of the Fourteenth Amendment.20 Racial discrimination is constitutional only when “unsupported by State authority in the shape of laws, customs, or judicial, or executive proceedings” or when “ not sanctioned in some way by the State.” 19 20 21 Discrimina tion is forbidden when the State participates “ through any arrangement, management, funds or property” 22 or when the State places its “power, property or prestige” behind the discrimination.23 z In this case racial segregation, which repeatedly has been held to constitute discrimination per se since Brown v. Board of Education, 347 U. S. 483,24 is explicitly authorized 19 Bolling v. Sharpe, 347 U. S. 497; Eirabayashi V. United States, 320 IT. S. 81, 100. 20 Brown v. Board of Education, 347 U. S. 483; Cooper v. Aaron, 358 U. S. 1, 19. 21 Civil Bights Cases, 109 U. S. 3, 17. 22 Cooper v. Aaron, 358 IT. S. 1, 4, 19. 23 Burton v. Wilmington Parking Authority, 365 U. S. 715, 725. 24 See 2 1 by a federal statute25 26 27 antedating Brown. The discrimina- been approved by agencies and officials and the United States .413a, ‘-126a). Large amounts of public funds have been expended by government to support the hospitals practicing dis crimination. The hospitals have submitted to a compre hensive pattern of sfgte and federal controls in return for these funds.** has granted these hospitals the power to operate and the privilege of receiving federal aid. The hospitals are aided by the State because they fulfill a public function which the State would have to per form if the hospitals did not.1*7 Xn^^addltion’j—as,-r'tO'-’Uone Hosprtahr-the-'Stat-e'4ias.-.passedUogisla-tion''diret;tiHg“pTtblic official? to appoint members of its governing board and has chosen to- train students, enrolled at public colleges at Gottk*8"'" Financial Contributions. The Cone and Long Hospitals are the beneficiaries of approximately 1.2 and 1.9 million dollars, respectively, paid to them through the Treasurer of the State of North Caro lina, from the United States of America under the Hill- Burton program. Although the District Court found the amount “ substantial” (213a), it deemed “ control rather than contribution . . . the decisive factor” (217a), and found receipt of these funds from government constitutionally insignificant. Control, however, has never been more than one factor which the courts have employed to evaluate the “ totality” 29 25 42 U. S. 0., §291e(f) ; 42 C. F. B., 553-112. 26 See supra, pp. 12-18 (97a, 103a). 27 .See infra, pp. 28-31. 28 See supra, pp. 7, 18-19. 29 Burton v. Wilmington Parking Authority, 365 XT. S. 715, 722-725. 2 2 of governmental relationships with persons and institutions for the purposes of the Fifth and Fourteenth Amendments. Indeed, many cases dealing with the issue have not found control by government necessary in order to result in gov ernmental responsibility.30 If any generalization suffices, it might be said that where governmental action, whatever its form, significantly affects conduct in the “ private” sphere, the restraints of the Constitution apply to forbid racial discrimination. Burton v. Wilmington Parking Au thority, 365 U. S. 715; Cooper v. Aaron, 358 U. S. 1, 4. The present case does include massive governmental con trol over the defendant hospitals, as is urged below. How ever, appellants submit that the effect of government as sistance upon an otherwise “private” entity is highly rele vant in deciding whether the restraints of the Constitution should apply.31 The conclusion of the District Court that the effect of three million dollars of public funds on the hospitals was insignificant for purposes of the Fifth and 30 There was no control o f the “ private” activity in Burton v. Wilmington ParMng Authority, 365 TJ. S. 715, 723, 724, or in many of the public accom modation eases involving use of governmental property which preceded it. See 365 TJ. S. at 925, n. 2. Indeed, many of these cases expressly assumed the absence of “ control.” See, e.g., Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), cert. den. sub nom. Casey v. Plummer, 353 TJ. S. 924. Where property has a governmental character, Marsh v. Alabama, 326 TJ. S. 501, or where it is used for the public benefit, Boman v. Birmingham Transit Co., 280 F. 2d 531, 535, government is responsible without inquiry as to control. A state is responsible even though the acts of its agents are not controlled or even permitted by state law. Monroe v. Pape, 365 TJ. S. 167; United States v. Baines, 362 TJ. S. 17, 25. The same is true when government delegates (Nixon v. Condon, 287 TJ. S. 73), authorizes (Smith v. Allwright, 321 U. S. 649) or acquiesces in ( Terry v. Adams, 345 TJ. S. 461), the exereise of essen tially governmental functions by private bodies. As said in Burton, supra, at p. 722, the Supreme Court has never attempted “ to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause.” 31 This is apart from the possibility that the amount of the contribution can result in control. Cf. Kerr v. Enoch Pratt Free Library, 170 F. 2d 212 (4th Cir. 1945). 23 Fourteenth is, in appellants’ view, erroneous. Prior to receipt of Hill-Burton assistance, Long Hospital operated a 78 bed hospital considered “ obsolete” by North Carolina (160a) and “ unsuitable” by the United States (93a). Long has now constructed and operates a 220 bed modern gen eral hospital, a nurses training school and a $120,000.00 laundry constructed under Hill-Burton with fifty percent federal funds. Cone Hospital has completed construction of a 300 bed hospital, a 182. bed hospital addition, and a diag nostic and treatment center with the assistance of the State of North Carolina and the United States under the Hill-Burton Program. g |5 i tJ ‘ V . ^ uTheses federal grants in excess of %, million dollars to ' Aaeh hospital, distributed in accordance with state and federal priorities and plans, » e obviously substantial. ‘She- 1 r y tax exempt status of the hospitals’ property increases the financial subsidy, cf. Burton v. Wilmington Parking Au thority, 365 U. S. 715, 724; cf. also Allen v. County School Board of Prince Edward County, 198 F. Supp. 497, 503 (E. D. Va. 1961), appeal pending. Thus, there is govern mental participation through an “ arrangement,” “ funds,” and “ property,” calling for application of constitutional principles against discrimination. Cooper v. Aaron, 358 U. S. 1, 4, 19. It would be difficult to know what the Cooper v. Aaron principle can i|Lean, if it does not embrace con tributions of funds in the million dollar range to build tax exempt property. State and Federal Controls to Implement Public Policy. In addition to the contribution of public funds, these hospitals are subject to a variety of governmental controls by virtue of their participation in the federal-state hospital construction program. The character of the physical facili ties and the equipment of the hospitals is closely controlled 24 by both federal and state governments.32 The effect of this regulation of construction and equipment on the future operations of the hospital is manifest. Requiring that a hospital build and arrange a particular department in a certain way and obtain certain equipment obviously deter mines the character of the service the hospital will render in the future. Beyond this, the federal statute requires that the states must directly regulate the details of hospi tal maintenance and operation. In order to participate in the Hill-Burton Program North Carolina has undertaken an elaborate regulatory and licensing scheme.33 This state control over the defendant hospitals’ operations is exact and detailed. In addition, the Federal Government exercises control over the general status of hospitals for a twenty year period.34 -f^Tlio funds paid to these hospitals under the Hill-Burton Act are to be used solely for carrying out the project as approved by the State and Surgeon General.35 If the hos pitals sell or transfer ownership within twenty years to anyone not qualified under the Act to apply for funds or not approved by the state agency, or if the hospitals cease to be “ nonprofit” the United States is authorized to recover the present value of the federal share of the approved project.36 These provisions operate to insure against mis use of federal funds in the manner of a reverter retained by government to insure particular use of property. The Fifth Circuit has found retention of such an interest in property sold by a municipality to private persons suffi cient to invoke constitutional restraints. In Hampton v. 32 See Statement of Facts, supra, pp. 13-14. 33 See Statement of Facts, supra, pp. 15-16. 34 See Statement of Facts, supra, at pp. 14-15. 35 42 U. S. C., §2911i (d). 36 42 U. S. C., §291h(e). 2 5 City of Jacksonville, 304 F. 2d 320 (5th Cir. 1962), cert. den. sub nom. Ghioto v. Hampton, 9 L. ed. 2d 170, the City sold two municipal golf courses with the deeds providing that the City would regain title if the properties were used for other purposes. This was the only connection retained by the City. Chief Judge Tuttle found that “ conceptually it is extremely difficult if not impossible to find any rational basis of distinguishing the power or degree of control, so far as relates to the State’s involvement between a long term lease for a particular purpose with the right of can cellation . . . if that purpose is not carried out” (as in Burton v. Wilmington Parking Authority, 365 U. S. 715), “ and an absolute conveyance of property subject . . . to the right of reversion if property does not continue to be used for the purpose prescribed” (304 F. 2d at 322). On this reasoning the Fifth Circuit declined to follow this Court’s decision in Eaton v. Board of Managers of the James Walker Memorial Hospital, 261 F. 2d 521 (4th Cir. 1958), cert. den. 359 IT. S. 984,87 saying that as Eaton was decided prior to Burton, its holding probably would not be adhered to in this Court^J Appellants submit that the interest retained by Govern ment in these hospitals pursuant to 42 IT. S. C., §291h(e), for a 20 year period is a substantial factor supporting the 37 37 Eaton does not control this case. In Eaton all governmental aid in the construction of facilities ceased in 1901; neither the district court nor this Court’s opinions so much as mentions assistance received from the federal government; the hospital in Eaton was not part of a State Plan for hospital construction and expansion nor did it have to conform to the requirements and standards of the Hill-Burton Act; those resources it did receive from government, for the treatment of indigent patients, amounted to 4.5 percent of the hospital’s total income; no governmental appointees sat on the Board of the hospital in Eaton nor did it participate in any arrangement with state educational institutions; while the hospital was licensed, the North Carolina Licensing process and its relation to the Hill-Burton program was not argued before this Court or discussed in its opinion; finally, segregation was not pur suant to authorization of federal law. 2 6 conclusions that these hospitals are subject to the Four teenth Amendment. Hampton v. City of Jacksonville, supra. The court below distinguished Burton v. Wilmington Parking Authority, 365 U. S. 715, which held discrimination forbidden at a restaurant on property leased by Govern ment without retaining any control of the restaurant opera tion, on the ground that the instant case involved no leasing of government property. But there is nothing talismanic about a leasing arrangement as such, for the Fourteenth Amendment is concerned with the effect of governmental action rather than with its form. In Burton the Court did not rely solely upon the fact that the dis crimination occurred on government property leased to a private persons but based its decision upon the effect of the totality of governmental participation. The Burton opinion cited decisions of this and other appellate courts based upon the leasing of governmental property38 but did not adopt this as its sole ground of decision. Nor does the fact that property is privately owned render it immune from the restrictions of the Fourteenth Amendment. Cf. Marsh v. Alabama, 326 U. S. 501; Shelley v. Kraemer, 334 U. S. 1; Baldwin v. Morgan, 287 F. 2d 750, 754, 755 (5th Cir. 1961); and see note 42, infra. Because of the control exercised by government over these hospitals, the principle enunciated in Public Utilities Comm’n v. Poliak, 343 U. S. 451, 462, applies. There the Supreme Court found sufficient governmental responsibility to require decision of a Fifth Amendment due process claim where the principal governmental involvement was a decision by a regulatory body to do nothing about private activity (radio broadcasts on streetcars) it could have prohibited. The hospitals in this case are regulated by 38 365 U. S. at 725, n. 2. 27 government in as significant a degree as the transit com pany was in Poliak. And this case has elements that the Poliak case did not, e.g., financial support and statutory authorization of racial segregation among others. The hospitals in this case are also like the certified labor unions required to represent all persons within a particular bargaining unit without discrimination. As labor organizations receive substantial power and benefits by having been licensed and regulated under federal law, the Supreme Court has found that serious Fifth Amendment due process questions would arise if the federal statutes involved were not construed to require nondiscrimination.39 The hospitals here are licensed and controlled by govern ment and have received substantial benefits under a com prehensive federal scheme for regulation of an area of national importance to much the same extent as labor organizations. ? In rejecting . .the significance of the licensing process whereby North' î rpolina grants these hospitals the power to operate after insuring compliance with comprehensive standards of operation, the District Court found the licenses granted these hospitals no different from those granted facilities such as restaurants. But licenses are distinguished on the basis of the power they grant and the purpose for which they are granted. See Bomcm v. Birmingham Transit 39 Steele v. Louisville N. B.B. Co., 323 U. S. 192 (Railway Labor Act) ; Syres v. Oil Workers Int’l Union, 223 F. 2d 739 (5th Cir. 1955), rev’d per curiam, 350 U. S. 892 (Labor Management Relations A c t ) ; Bailway Em ployees Dept. v. Hanson, 351 U. S. 225, 232, n. 4. In Railroad Trainmen v. Howard, 343 U. S. 768, Negroes in a separate bargaining unit were entitled to enjoin a white union from striking to eliminate the Negroes’ jobs. See, Betts v. Easley, 161 Ean. 459, 169 P. 2d 831 (holding certified labor union with responsibilities under federal law and receiving benefits therefrom sub ject to Constitution). Cf. Ming v. Horgan, 3 Race Rel. L. Rev. 693, 699 (Cal. Super. Ct. 1958) (persons accepting federal mortgage guarantee bound by Fifth Amendment). 2 8 Co., 280 F. 2d 531, 535 (5th Cir. 1960), holding that because a bus company was performing a service for the public necessity and convenience, by having a franchise to operate on the public streets of Birmingham, “ the acts of the bus company in requiring racially segregated seating were ‘state acts.’ ” 40 These hospitals perform services for the public at least as significant as those of a local bus com- panyJfAs stated by the General Counsel of the Department of Health, Education, and Welfare, “ [T]he Hill-Burton Act recognizes the interchangeability of public and non profit community hospitals and aids the two on the same terms, leaving the choice in each individual case to the community and the state. The State Plan must be ad dressed to the provision of adequate facilities for all of the people of the State, but effectuation of the plan may be through any combination of public and nonprofit in stitutions” (179a-180a). It would be totally misleading to consider these hospitals on the same footing as an ordinary licensed private busi ness. In order to receive Hill-Burton funds the hospitals must be nonprofit “ community facilities” defined as fur nishing service to the general public with admission limited only on the basis of age, medical, indigency, or mental disability.41 Cone Hospital is chartered on the condition that “no patient shall be refused admission nor be dis charged because of inability to pay” (50a), and the Board’s power to decide who shall be admitted is conferred in terms of “ classes of patients, as regards diseases” (49a). Long Hospital was formed “ to serve the public and the com munity” (61a). Not only do nonprofit hospitals like Cone 40 See also, Baldwin v. Morgan, 287 F. 2d 750, 755 (5th Cir. 1961) ; Betts if. Easley, 161 Kan. 459, 169 P. 2d 831. 41 42 C. F. R., §53.1 (v). 29 and Long perform “ the same community functions” as public hospitals, “ but they do so in the same way and with the same relationships to their patients and to the prac ticing profession. They enjoy substantially the same free dom from taxation and offer the same or similar support from public funds. Such differences as there may be in the make-up of the governing boards or in the financial structure are all but invisible to patients or to physicians” (179a). Over 85% of the “ acceptable” hospital beds (702 of 793 beds) in the Greensboro area are at Long and Cone Hos pitals ; the remaining 91 beds are at the all-Negro L. Richardson Memorial Hospital (120a). Under Hill-Burton, the number and distribution of hos pital beds in an area is decided by State and Federal Governments. Once funds are granted bringing an area up to the standard of hospital beds considered adequate for the population, no further beds can be programmed. (See Statement of Facts, supra, pp. 16-17.) If North Caro lina had chosen to build publicly owned hospitals in Greens boro, Cone and Long could have been denied all federal aid. On the other hand, the aid granted them now prohibits the construction of duplicating city, county, or other non profit facilities with federal aid. The participating hos pitals have become the chosen and exclusive instruments to carry out governmental objectives. In such a community these hospitals are performing an essential governmental function for the State. If the State did not provide for this service indirectly by control and support of defendants, it would necessarily have to provide the service directly through operation of a public hospital. Though privately owned, they are essential community facilities, operated for the benefit of the general public, in relation to which the constitutional principle of Marsh v. 30 Alabama, 326 U. S. 501, 50642 (that facilities “ built and operated primarily to benefit the public” are circumscribed by the constitutional rights of the public) must be applied. Nonprofit community hospitals such as Long and Cone are fundamentally different from “ private” profit making hospitals which are “ essentially business undertakings” and ineligible for Hill-Burton assistance (178a). As part of a State Plan the purpose of which is to afford “ necessary physical facilities for furnishing adequate hospital, clinic and similar services to all [the] people,” 43 Long and Cone are doing something state and federal governments deem “useful for the public necessity or convenience” , Boman v. Birmingham Transit Co., 280 P. 2d 531, 535 (5th Cir. 1960) ; Baldwin v. Morgan, 287 F. 2d 750, 755 (5th Cir. 1961) . It is because of this public responsibility that they have received governmental support,44 and they are in- 42 “ Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. . . . ” Marsh has been specifically applied to the equal protection clause. Shelley v. Kraemer, 334 U. S. 1, 22. Cf. Republic Aviation Corp. v. N.L.R.B., 324 TX. S. 793, 798, 802, n. 8; N.L.R.B. v. Babcock <$■ Wilcox Co., 351 XI. S. 105, 112; Freeman v. Retail Clerks Local, 1207, 45 Lab. Eel. Eef. Man. 2334 (1959), all eases applying the Marsh principle to private property. 43 42 TJ. S. C., §291. 44 The Department of Health, Education, and Welfare has stated the philosophy of Hill-Burton to be “ assistance of nonpublic groups, for public ends” : “ The underlying social philosophy of the program under Title VI of the Public Health Service Act is that the health of the Nation is a national resource and that Federal leadership and financial encourage ment are warranted and necessary in establishing a systematic network of facilities for hospital and medical facilities. For this purpose, com prehensive planning by the States themselves is regarded as essential, based on careful inventories of existing facilities, while local initiative and local financing must launch specific projects in accordance with the State Plan, i f Federal assistance is to be provided. “ No distinction is made between public and private sponsors of projects aided, provided personal gain or profit from the operation of the hospital 3 1 struments of government policy within the Fifth and Four teenth Amendments. Bomrni v. Birmingham Transit Co., supra; Baldwins. Morgan', supra. Affirmative Governmental Sanction of Discrimination. In addition to the interrelations of the hospitals with government discussed above, an additional factor compels the conclusion that the discrimination practiced against ap pellants is within the purview of the Constitution. This discrimination was affirmatively sanctioned by a federal statute and federal regulations, and by a State Plan for hospital construction on a segregated basis. The conduct of private persons is insulated from constitutional require ments only insofar as it is “unsupported by State author ity in the shape of laws, customs, or judicial or executive proceedings” or is “not sanctioned in some way by the State.” Civil Rights Cases, 109 U. S. 3, 17. Here the af firmative governmental sanction of racial segregation (the State Plan for segregation in the Greensboro area) en ables the hospitals to avoid giving an assurance not to discriminate as a condition of receiving the funds. This is in accord with the Hill-Burton Act (42 U. S. C. §291e(f)) which allows the States to authorize or require segregation in either government hospitals or nonprofit hospitals. The segregation is supported by federal statute and regulations and by State executive decisions, e.g., the State Plan. The principle enunciated in Mr. Justice Stewart’s con curring opinion in Burton v. Wilmington Parking Author- is not involved. This is believed to be the first major example of Federal assistance to nonpublic groups, for public ends. Such action was found essential to a comprehensive program, because of the dual nature of the entire existing hospital system, which had evolved to a large degree under private auspices.” The Nation’s Health Facilities: Ten Years of the Hill- Burton Program 1946-1956, p. 15, Public Health Service Publication No. 616 (1958). 32 ity, 365 U. S. 715, 726-727, justifies the grant of relief to appellants here. In Burton, Justice Stewart read the Dela ware law as “ authorizing discriminatory classification based exclusively on color” (365 U. S. at 727) and found this sufficient to invalidate the law and reverse a decision deny ing an injunction against a restaurateur who excluded Negroes. Three dissenters (Justices Frankfurter, Harlan and Whittaker) agreed that a statute authorizing a non governmental entity to discriminate would “ indubitably” (365 U. S. at 727) and “certainly” (Id. at 730) offend the Fourteenth Amendment and open up an “ easy route to decision” (Id. at 728). But they found the meaning of the Delaware law uncertain. The majority opinion in Burton did not discuss the issue. However, McCabe v. Atchison Topeka and S. F. R. Co., 235 U. S. 151, 162 (1914), is based upon the same theory, holding that a Negro “might properly complain that his constitutional privilege has been invaded” if common carriers “ acting in the matter under the authority of a state law” denied Negroes sleeping car, dining car and chair car facilities. The only defendants in the case were a group of rail carriers who were authorized to discriminate by an Oklahoma law. Belief was denied only on the ground that complainants had not actually sought to use the rail roads or to otherwise show that equitable intervention was necessary to protect the rights declared in the opinion. Here, as in McCabe, defendants are relieved of obedience to a general requirement of non-discrimination (emanating in McCabe from the common law duty of carriers, and here from the underlying non-discrimination rule of 42 U. S. C. §291e(f)) by action of a State. In McCabe the State action was statutory; here it is executive in the shape of the State Plan and the Medical Care Commission’s action on defendants’ project applications. \ l When individuals effect racial discriminations at the behest of a State they become subject to the limitations 3 3 applicable to the States themselves. Flemming v. South Carolina Electric & Gas Co., 224 F. 2d 752, 753 (4th Cir. 1955), appeal dismissed, 351 U. S. 901. A railroad terminal company and a local bus company were enjoined from discriminating in Baldwin v. Morgan, 287 F. 2d 750, 755 (5th Cir. 1961) and Boman v. Birmingham Transit Co., 280 F. 2d 531, 535 (5th Cir. 1960), where their discrimina tory actions were taken under authority conferred by State and local laws.45 Additional Factors Applicable to Cone Hospital. Two additional factors applicable to Cone Hospital (but not to Long Hospital) are present which support the con clusion that Cone should be subjected to the restraints of the Constitution. These are the special arrangements for the appointment of Cone’s trustees and Cone’s nurses train ing program. Five Cone trustees are appointed by persons who are clearly state officers, e.g., the Governor of North Carolina, and the governing bodies of the City of Greensboro and of Guilford County, North Carolina. They exercise power to appoint Cone trustees under authority conferred by a legislative enactment, Cone’s charter. The Guilford County Medical Society is also given power to name a trustee by the North Carolina legislation. This Society is a component of the State Medical Society which has other powers granted by statute, in selecting members of North Carolina’s Board of Medical Examiners and Board of Health, Gen. Stats, of N. C. §90-1 et seq. and §130-4 et seq. The private law grant ing this appointing power to the Guilford County Medical Society (as well as to the Governor and the City and County 45 See Williams v. Rot Shoppes, 293 F. 2d 835, 845, 846 (D. C. Cir. 1961), where Judges Bazelon and Edgerton, in dissenting from the majority’s decision to abstain, urged that the action of persons required by law to enforce a segregation rule is state action within the reach of the Fourteenth Amendment. 34 Boards) is a delegation of governmental power which sub jects its recipient to the Fourteenth Amendment, Nixon v. Condon, 286 U. 8. 73. The six trustees so selected repre sent the interests of government in the operation of the Cone Hospital. The court below rejected this as unim portant stating that the “ private” trustees (i.e., the other nine not selected by governmental bodies) were in a ma jority. The court made no mention of the fact that the governmentally chosen trustees participate in the election of these other nine trustees, thus extending the potential for actual governmental control of a majority of the board. But, there is no reason to presuppose conflict between the governmental and nongovernmental members of the board. It is obvious that the members appointed by government have the power to substantially influence the affairs of the corporation. By granting a corporate charter directing government officials to appoint members of the governing body of the hospital the state “has elected to place its power . .. and prestige behind the admitted discrimination,” Burton v. Wilmington Parking Authority, 365 U. S. 715, 725. In Pennsylvania v. Board of Directors of City Trusts, 353 U. S. 230, the “ Girard College Case,” a governmental body served as trustee to carry out a discriminatory policy ordained by a private grantor. The State had no part in creating the discriminatory policy, but it nevertheless was prohibited by the Supreme Court from carrying it out. Here the grantor required no discrimination. The board of trustees, including representatives of the State, have formulated as well as enforced discrimination. While this ease lacks the fully governmental body present in the Girard College case, it more than makes up for this by virtue of the participation of the governmental agents in formulating the policy of discrimination. It is submitted that the court below erred in undertaking to determine if defendants were “public corporations” under the standards of Mr. Justice Story’s concurrence in Dart mouth College v. Woodward, 17 U. S. (4 Wheat.) 518, 671. For the purposes of the Fourteenth Amendment numerous corporations have been held subject to the Constitution without regard to any such inquiry.46 See, e.g., Burton v. Wilmington Parking Authority, supra; Turner v. Memphis, 369 U. S. 350; Marsh v. Alabama, supra. The nurses training program conducted at Cone Hospital by two publicly supported institutions of higher learning is another arrangement which makes it clear that the “ State has so far insinuated itself into a position of interdepen dence with . . . [Cone] that it must be recognized as a joint participant in the challenged activity, which, on that ac count, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.” Burton v. Wilmington Parking Authority (365 TJ. S. at 725). North Carolina, faced with a shortage of nurses and desir ing to train them (116a-119a), undertakes to do so at Cone Hospital, an institution aided and assisted with federal funds under a state plan for hospital construction. This nurses training program is but another part of the pattern of “ benefits mutually conferred” (Burton v. Wilmington Parking Authority, 365 U. S. at 724) characteristic of 46 The Dartmouth College ease discussion of “public” and “private” cor porations involved no issue of the responsibility of a corporation under standards applicable to government. In that ease the only relevant “ state action” was clearly present, i.e., a New Hampshire law affecting the College. The discussion of whether the corporation was “ public” or “private” was part of the court’s decision that the corporation’s charter did constitute a contract, which government could not impair. The only precedent cited by the court below for applying these notions to a Fourteenth Amendment issue of “ state action” is Norris v. Mayor and City Council o f Baltimore, 78 F. Supp. 451, 458 (D. Md. 1948), in which an educational institution leased property from government. That opinion is cer tainly inconsistent with many modern decisions holding government leased property subject to the Fourteenth Amendment. Burton v. Wilmington Bark ing Authority, 365 TJ. S. 715, 725, note 2. 3 6 Cone’s relations with government. For Fourteenth Amend ment purposes, it does not matter that this part of the arrangement may be more advantageous to the State than it is to Cone, for both obviously benefit from it. Whether the work actually performed by the student nurses (91a), and the intangible benefit to the hospital from creating a source of trained nurses (59a) equals the dollar value of the hospital’s payments for the program cannot be judged by the standards of profit-making businesses. It is sufficient under the Burton rule that the arrangement with the state schools enables Cone to carry out one of its charitable purposes (48a) and that Cone and the State are engaged in a joint endeavor. Conclusion of Part f - ' The immensity and authority of governmental power, property, and prestige demands use to foster the objectives of the Constitution. Racial discrimination by community hospitals is a matter of grave importance to Negro citi zens.^ By financial contribution, and a complex pattern of v 47 47 Racial discrimination by hospitals has drastie consequences. Because Negro physicians are so often excluded from the main stream of medical development they have increasingly in recent years eschewed practice in the South. Notwithstanding the increase in Negro population in major southern cities the absolute number of Negro physicians in such cities is decreasing. Reitzes, Negroes and Medicine, pp. 272, 295, 316 (1958). Bor example, in North Carolina, there is a white physician for every 725 white persons, but the Negro population per Negro doctor is 7,915. See “ Equal Protection of the Laws Concerning Medical Care in North Carolina” , p. 19 (Subcommittee on Medical Care of the North Carolina Advisory Committee to the United States Commission on Civil Rights (mimeographed)). Hospital discrimination not only affects the quantity of medical care available to the Negro community, but seriously affects the quality. For as Reitzes has written: . . . The most important single element in the continued education of physicians is affiliation with a hospital. The nature of the affiliations and the type of hospital with which a physician is affiliated is probably the best single index of his ability to keep abreast of good medical prac tice. Op. cit. at 275. Cf. 49 Journal of the National Medical Association, 37 controls, by authorizing the hospitals to do the work of government, and bĵ affirmatively sanctioning racial dis crimination by legislative and executive decision, the State and Federal Governments have so insinuated themselves into the affairs of the Cone and Long hospitals, as to com pel the conclusion that the egalitarian principles embodied in the idea of “due process of law” and the “ equal protection of the laws” should apply to the hospitals as they do to more conventional agencies of government. Jf II. Those Portions of Title 42 U. S. C., §2 9 1 e(f) and 42 C. F. R., §53.112 Which Authorize Racial Discrimina tion Violate the Fifth and Fourteenth Amendments. The provisions of the Hill-Burton Act and the federal regulations pertaining to racial discrimination, and North Carolina’s action pursuant thereto, have been detailed in the Statement of Facts, supra, pp. 17-18. The statu tory and regulatory framework (principally 42 IT. S. C., §291e(f); 42 C. F. R., §§53.111, 53.112 and North Caro lina’s State Plan (113a, 120a)) represents a federal deter mination that hospitals aided under the Act may not racially discriminate unless the State adopts a plan for racial separation which is approved by the Surgeon Gen eral and which “makes equitable provision” for each racial group. Thus, in accordance with the constitutional standard prevailing in 1946 when the Hill-Burton Act was passed, 272, 352, 429 (1957) (setting forth reports on discrimination in hospitals throughout the nation). The statistics illustrate the shameful results of racial discrimination by medical facilities. In North Carolina, the rate of Negro infant mortality is twice the rate of whites, and the chances of maternal death are five times greater. “Equal Protection of the Laws Concerning Medical Care in North Carolina” , supra, Appendix K. the States were allowed to permit or require48 racial segre gation in governmental and nonprofit hospitals aided by the program if they provided “ separate but equal” facilities. The statute makes an exception to the general nondis crimination rule in deference to the “ separate but equal” doctrine of Plessy v. Ferguson, 163 U. S. 537.49 Of course, since Brown v. Board of Education, 347 U. S. 483, the Plessy doctrine has been repudiated in regard to every type of facility to which it was applied. Dawson v. Mayor and City Council of Baltimore, 220 F. 2d 387 (4th Cir. 1955), a ft Vi 350 U. S. 877; Holmes v. City of Atlanta, 350 U. S. 879; Gayle v. Browder, 352 U. S. 90; Bailey v. Patterson, 369 U. S. 31; Turner v. Memphis, 369 U. S. 350 ; New Orleans City Park Improvement Asso. v. Detiege, 358 U. S. 54; State Athletic Commission v. Dorsey, 359 IT. S. 533. 48 North Carolina still requires segregation in state hospitals for treat ment of mental diseases and disorders. N. C. Gen. Stats., §§122-3, 122-5, 122-6, 122-83, 122-84, 122-88, 116-126. 49 Appellants challenge the portion of 42 U. S. C., §291e(f) which reads: “ . . . but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group; . . . ” Appellants also challenge so much of 42 C. F. R., §53.112 as reads: “ . . . However, in any area where separate hospital, diagnostic or treat ment center, rehabilitation or nursing home facilities, are provided for separate population groups, the State agency may waive the requirement of assurance from the construction applicant i f (a) it finds that the plan otherwise makes equitable provision on the basis of need for facil ities and services of like quality for each such population group in the area, and (b) such finding is subsequently approved by the Surgeon General. Facilities provided under the Federal Act will be considered as making equitable provision for separate population groups when the facil ities to be built for the group less well provided for heretofore are equal to the proportion of such group in the total population of the area, except that the State Plan shall not program facilities for a separate population group for construction beyond the level of adequacy for such group.” 39 It is simply beyond the constitutional competence of government to support racial segregation in any way. Government cannot make racial distinctions (Baldwin v. Morgan, 287 F. 2d 750, 754 (5th Cir. 1961)); or “ encourage” racial segregation (Gantt v. Clems on Agricultural College of South Carolina (4th Cir. No. 8871, Jan. 16, 1963)). Insofar as the Hill-Burton Act and the federal regula tions authorize the defendants, as agencies of the State and federal governments to engage in racial discrimination, they are obviously in conflict with the prevailing doctrine which has repudiated the separate but equal theory. They violate the Fifth and Fourteenth Amendments. Bolling v. Sharpe, 347 TJ. S. 497; Brown v. Board of Education, 347 TJ. S. 483. The District Court found that the Long and Cone Hos pitals were not subject to the restraints of the Constitution forbidding racial discrimination, and, therefore, found it unnecessary to decide the constitutionality of the Hill- Burton provisions which authorized the discrimination at tacked. Should this Court determine that Cone and Long Hospitals are subject to constitutional restraints, the validity of the Hill-Burton Act would unavoidably be presented for decision, since the Act and Regulations authorize the very conduct the Court would be adjudging unconstitutional and restraining. To the extent that the Constitution forbids racial discrimination by agents of government, it also forbids statutory authorization of such discrimination. To hold the conduct of these hospitals subject to constitutional responsibility without granting appellants declaratory relief—declaring the statute which authorized such conduct unconstitutional—would be in- 4 0 consistent as well as potentially confusing.50 To be sure, settled principles of constitutional construction reflect the judicial concern with unnecessary decisions of constitu tional questions.51 But there is no suggestion in the cases -—and more important, in the theory of judicial restraint underlying them—that a statute authorizing invalid con duct will not be declared unconstitutional when the conduct itself is held unconstitutional. Such a result would turn a rule of avoidance of unnecessary constitutional decisions into a rule of abdication. Failure to declare the “ separate- but-equal” provisions of the Hill-Burton Act unconstitu tional would not be avoidance of a decision of “ gravity and delicacy” 52 53 * * * * for fundamental considerations of political organization, but a simple failure to articulate an in escapable conclusion.58 50 The United States argued forcefully in the District Court that failure to adjudicate the constitutionality of the Hill-Burton Act in such a context would subject the administration of the Act to uncertainty and subject the United States to possible liability for maladministration. “Not only is it unseemly for a high executive official o f the United States to continue admin istering a statute which under the decisions of the courts seems clearly unconstitutional, but if the Surgeon General misconceives his legal obligations under the Act he may well subject himself to suit by those injured by his conduct.” (Memorandum in Support of Conclusions of Law proposed by the United States, p. 21.) 51 See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 345 et seq. 52 Ibid. 53 Nor is it material that appellees did not rely on the Hill-Burton Act provision authorizing segregation. They have received the benefit of and acted in accordance with its terms. Presumably, appellees did not defend on the basis of the validity of their statutory authorization to segregate because decisions of this Court and the United States Supreme Court made such an argument preposterous. 41 CONCLUSION It is respectfully submitted that the judgment below should be reversed. Respectfully submitted, Jack Greenberg J ames M. Nabrit, III Michael Meltsner 10 Columbus Circle New York 19, New York Conrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina Attorneys for G. C. Simkins, Jr., et at.