Simkins v Moses H Cone Memorial Hospital Brief of Amicus Curiae

    IK  THE

MttttTb Btntw (Emtrt af Appeals
For the Fourth Circuit

No. 8908

G. C. SIMKINS, JR., et al., and UNITED STATES 
OF AMERICA,

Appellants,
y.

MOSES H. CONE MEMORIAE HOSPITAL, 
a corporation, et al.,

Appellees.

Ok  A ppeal, F rom the Ukited States District Court for 
the Middle D istrict op North Carolika

BRIEF OF THE AMERICAN CIVIL LIBERTIES 
UNION AS AMICUS CURIAE

Mariok A. W right,
Linville Falls, North Carolina,

Johk H. W heeler,
Mechanics and Farmers Bank 
Durham, North Carolina,
Attorneys for American Civil Liberties 

Union, Amicus Curiae.

L awrekce Speiser,
Melvik L. W u lf ,

of Counsel.



I N D E X

Statement of the C a se ................................................... 1
Argument ........................................................................  2

1. The function and role of the “ private”  entity
in effectuation of an official State policy or 
program: the “ private”  entity as an instru­
ment for the achievement of a relatively spe­
cific State purpose.............................................  13

2. The conflicting interest of the diseriminatee
and the discriminator. The nature and de­
gree of injury to the person discriminated 
against in being denied the benefit or facility, 
and the “ interests”  of the discriminator in 
being permitted to discriminate...................... 16

3. Degree of responsibility of the “ State”  for
the racial discrimination by the “ private”  
entity ........................................................    20

Conclusion ..........................................................    22

Citations

C ase'S’ :

American Federation of Labor v. Swing, 312 U. S.
321 (1941) ................................................................. 9

Barrows v. Jackson, 346 U. S. 249 (1953 ).............. 5
Birmingham Baptist Hospital v. Crews, 229 Ala.

398, 157 So. 224 (1934) .........................................  10
Boman v. Birmingham Transit Co., 280 F. 2d 531

(C. A, 5th 1960) ..................................................... 18,22
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala.

1956), affirmed, 352 U. S. 903 (1956) .................. 20
Burton v. Wilmington Parking Authority, 365 IT. S.

715 (1961) .......................................3, 5, 8, 9,14,18, 21, 22

Civil Bights Cases, 109 IT. S. 3 (1883 ).................... 4

PAGE



11

Cases (Cont’d ) :

Craig v. North Miss. Community Hosp., 206 Miss.
11,' 39 So. 2d 523 (1949 ).........................................  15

Derrington v. Plummer, 240 F. 2d 922 (C. A. 5th 
1956), cert, den., 353 U. 8. 924 (1957 ).................. 14

Eaton v. Board of Managers of James Walker 
Memorial Hospital, 164 F. Supp. 191 (E. D. N. C.
1958), affirmed, 261 F. 2d 521 (C. A. 4th 1958); 
cert, den., 359 U. S. 948 (1959) ........................11,12,14

Finan v. Mayor and City Council of Cumberland,
154 Md. 563, 141 Atl. 269 (1928) .........................  15

Garner v. Louisiana, 368 U. S. 157,184-85 (1961) .. 22
Begat v. Adorno, 138 Conn. 134, 83 A. 2d 185 (1951) 15
Lochner v. New York, 198 U. S. 45 (1905 ).............. 5
Marsh v. Alabama, 326 U. S. 501 (1946) ................3, 5,18
McCabe v. Atchison, Topeka & Santa Fe R.R.,

235 U. S. 151 (1914) ......................... .. .5, 8,17,18, 22
Opinion of the Justices, 99 N. H. 519, 113 A. 2d 

114 (1955) ......................................    15
Park v. The Detroit Free Press Co., 72 Mich. 560,

40 N .W . 731 (1888) ................................. . 9
Parker v. Bates, 216 S. C. 52 S. E. 2d 723 (1949) . .  15
Shelley v. Kraemer, 334 U. S. 1 (1948) ..........3, 5, 6, 9, 20
Smith v. Allwright, 321 U. S. 649 (1944 )................ 13
State v. Avent, 253 No. Car. 580, 118 S. E. 2d 47 

(1961), cert, granted, 370 H. S. 934 (1962) . . . .  6,10
State v. Clyburn, 247 No. Car. 455, 101 S. E. 2d

295 (1958) ................................................................. 10
State v. Steele, 106 No. Car. 766, 11 S. E. 478 

(1890) ......................................................................  10
Terry v. Adams, 345 U. S. 461 (1953 )..........3, 5,13,17, 21
Truax v. Corrigan, 257 U. S. 312 (1921) ..........5, 6, 7, 8, 9
Turner v. City of Memphis, 369 U. S. 350 (1962) .. 5, 20

PAGE



Statutes and Regulations:

North Carolina General Statutes:
Section 72-1........................................................... 10
Section 131-91....................................................... 15
Section 131-120.....................................................  16
Section 131-126.3 ................... ...........................  21

Hill-Burton Act, Section 391(e) (f) (42 U. S. C.
§ 291 et seq.) ...................................................2,14,16, 21

42 C. F. R. § 53-112 ................................................... 2
Federal Rules of Civil Procedure, 28 U. S. C.

§ 2403, Rule 24(a) ................................................... 2

Other A uthorities:

Hale, Rights Under the Fourteenth and Fifteenth 
Amendments Against Injuries Inflicted By Pri­
vate Individuals, 6 Law. Guild Rev. 627 (1946) . 5

Henkin, Shelley v. Kraemer: Notes for a Revised 
Opinion, 110 U. of Pa. L. Rev. 473 (1962 ).......... 5

Horowitz, The Misleading Search for “ State Ac­
tion”  Under the Fourteenth Amendment, 30 So.
Cal. L. Rev. 208 (1957) .........................................  5

Peters, Civil Rights and State Non-Action, 34 
Notre Dame Lawyer 303 (1959) ................................ 5

Traynor, Law and Social Change in a Democratic 
Society, 1956 U. of 111. L. For. 220 .....................  5

Van Alstyne and Karst, State Action, 14 Stan. L.
Rev. 3 (1961) ................................................................ 5

I l l
PAGE



IN  THE

Htttfri* BUtm (Emrt at Appmlz
For the Fourth Circuit

No. 8908

---------------------- o------------ .— .—

Gr. C. Simkins, Jr,, et au , and United States of 
A merica,

Appellants,
V.

Moses H. Cone Memorial H ospital, a corporation,
ET AL.,

Appellees.

On A ppeal F rom the United States District Court for 
the Middle District of North Carolina

---------------------- o----------------------

BRIEF OF THE AMERICAN CIVIL LIBERTIES 
UNION AS AMICUS CURIAE

The American Civil Liberties Union is a forty-two year 
old non-partisan organization engaged solely in the defense 
of the Bill of Rights. In this case, our purpose in ap­
pearing amicus is to support those provisions of the Fifth 
and Fourteenth Amendments which prohibit any discrimi­
nation by the Federal or State governments on the basis 
of race. This brief is filed by leave of Court pursuant to 
its order of February 25, 1963.

Statement of the Case 1

The plaintiffs are Negro physicians, dentists and 
patients. They brought this action in the United States 
District Court for the Middle District of North Carolina

1 A full statement of the facts is contained in plaintiffs’ brief, 
pp. 5-19.



2

to enjoin two hospitals from denying them staff and treat­
ment facilities solely because of their race. The complaint 
also sought a declaration that Section 391(e) (f) of the Hill- 
Burton Act (42 U. S. C. § 291 et seq.), and a related regula­
tion (42 C. F. R. § 53-112), were, unconstitutional. The cited 
statute and regulation authorize racial segregation or ex­
clusion of Negroes from hospitals receiving grants under 
the Act on a separate-but-equal basis. Because the, pro­
ceeding was one in which “ the constitutionality of . . . 
[an] Act of Congress . . . [was] drawn in question,”  
the United States was permitted to intervene as a party 
plaintiff. 28 U. S. C. § 2403, Rule 24(a) Federal Rules of 
Civil Procedure.

The defendants’ motion to dismiss was granted by the 
court below on the, ground that the hospitals are not “ in­
strumentalities of government, either state or federal, and 
none of the defendants are subject to the inhibitions of the 
Fifth Amendment or the Fourteenth Amendment to the 
United States Constitution.”  (R. 221a)1

Argument

The opinion of the district court states that “ . ... the 
sole question for determination is whether the defendants 
have been shown to be so impressed with a public interest as 
to render them instrumentalities of government, and thus 
within the reach of the Fifth and Fourteenth Amendments.”  
(R. 206a-207a, emphasis added.) The court’s analysis of 
the issues in this case was limited to determining whether 
the defendant hospitals, because of their relationship to 
government, had been “ transformed”  into “ agencies”  of 
the State. The test to determine whether this transforma­
tion from “ private”  to “ state,”  the court said, was “ con­
trol” —whether public officials can “ exert any control . . .

1 The opinion is reported at 211 F. Supp. 628.



3

over management of the business of the hospital.”  And, 
the court concluded, the membership of the boards of trus­
tees, tax exemptions, receipt of government funds, and 
other government involvement did not give public officials 
such “ control.”

With this approach the district court dealt with only- 
part of the constitutional issue raised in this case. To 
limit inquiry only to the question whether the defendant 
hospitals are subject to “ control”  by public officials and 
are therefore “ instrumentalities”  or “ agents”  of the State, 
so as, in themselves, to be subject to the limitations of the 
Fourteenth Amendment, is to put a complex question into 
oversimplified, incomplete, and misleading form. Such a 
statement of the issue raised in this case permits a difficult 
and subtle constitutional issue to be obscured by an analysis 
limited to defining such terms as “ agent”  and “ control.”  
It is the purpose of this brief to pose, and argue, the consti­
tutional issue which emerges if it is assumed that the dis­
trict court’s conclusion is correct that the hospitals 
themselves are not the “ state”  in the sense that that term 
is used in the Fourteenth Amendment.

Before turning to that issue it should be clearly estab­
lished that there is more involved in a case such as this 
than a judgment whether the “ private”  hospital is, or is 
not, subject to “ public control.”  I f such “ control”  were 
the sole factor in deciding such a case there would be no 
explanation for the results reached by the Supreme Court 
in such cases as Burton v. Wilmington Parking Authority, 
365 U. S. 715 (1961), Terry v. Adams, 345 IT. S. 461 (1953), 
Marsh v. Alabama, 326 U. S. 501 (1946), and, indeed, Shelley 
v. Kraemer, 334 U. S. 1 (1948). For in all of these cases 
it was held that there was unconstitutional State action in 
connection with racial discrimination or other activity by 
“ private”  persons and entities which were in no way sub­
ject to “ public control”  in the sense that that concept was 
utilized by the district court as the sole test in deciding this



4

case. Those cases involved a ‘ ‘ private ’ ’ restaurant, a ‘ ‘ pri­
vate”  political club, a “ private”  company town, and a 
“ private”  seller of land—all not subject, in the words of 
the district court, to ‘ ‘ any control . . . over management of 
. . . [their] business. . . . ”  These eases may perhaps be 
distinguishable from the case now before this court, but if 
there is a meaningful distinction it must be on some ground 
other than absence of “ public control” .

The Fourteenth Amendment is applicable, of course, 
only to the action of a State. Civil Rights Cases, 109 U. S‘. 
3 (1883). The only “ state action”  for which the district 
court searched in this case was action of the hospitals them­
selves—if they are “ instrumentalities”  or “ agents”  of the 
State then their action is the action of the State. But assum­
ing that the hospitals are not sufficiently under “ public con­
trol”  to be “ agents”  of the State, there is still “ state 
action”  in this case which must be tested against the Four­
teenth Amendment?)That “ state action”  is the principle of 
North Carolina laW^which defines the legal relationships be­
tween the plaintiffs and the “ private”  hospitals. As will be 
developed in detail infra, North Carolina State law here 
permits the hospitals to deny the plaintiffs the benefits of 
the hospitals solely because of the plaintiffs’ race—i.e., 
North Carolina law makes privileged the hospitals’ refusal 
to extend their benefits to the plaintiffs, and denies a cause 
of action to these plaintiffs for damages or injunctive relief 
against the hospitals. We argue in this brief that this 
principle of North Carolina law—“ action”  of the State of 
North Carolina—is unconstitutional under the Fourteenth 
Amendment. /

It is axiomatic that State law defining legal relations 
between “ private”  persons is “ state action”  under the 
Fourteenth Amendment (as is all State “ law”  for purposes 
of that amendment). It should be added, as a corollary, 
that all but a miniscule portion of any State’s “ law”  is



5

found to be constitutional when tested against the Four­
teenth Amendment. There are numerous examples of the 
testing of principles of State law which define legal rela­
tions between “ private”  persons for constitutionality un­
der the Fourteenth Amendment. Illustrations are: Loch- 
ner v. New York, 198 U. S’. 45 (1905) (State statute fixing 
maximum hours in private employment); McCabe v. Atchi­
son, Topeka & Santa Fe R.R., 235 U. S. 151 (1914) (State 
statute permitting railroad to exclude Negroes from sleep­
ing cars and dining cars); Truax v. Corrigan, 257 U. S. 312 
(1921) (State statute denying employer cause of action for 
injunction in a labor dispute); Marsh v. Alabama, 326 U. S. 
501 (1946) (State common law permitting private entity 
to exclude from its premises another person distributing 
literature, and State criminal statute enforcing the exclu­
sion) ; Shelley v. Kraemer, 334 U. S. 1 (1948) and Barrows 
v. Jackson, 346 U. S. 249 (1953) (State common law in 
effect compelling performance of private person’s promise 
not to convey real property to a N egro); Terry v. Adams, 
345 U. S. 461 (1953) (State common law upholding exclusion 
of Negroes from political club’s pre-primary election); 
Burton v. Wilmington Parking Authority, 365 IT. S. 715 
(1961) (State law permitting private restaurant to refuse 
to serve Negroes); Turner v. City of Memphis, 369 U. S'. 
350 (1962) (State law compelling racial segregation in 
“ private”  restaurants). See, generally, Hale, Rights Un­
der the Fourteenth and Fifteenth Amendments Against 
Injuries Inflicted by Private Individuals, 6 Law. Guild 
R ev. 627 (1946); Henkin, Shelley v. Kraemer: Notes for a 
Revised Opinion, 110 U. of Pa. L. R ev. 473 (1962); Horowitz, 
The Misleading Search for “ State Action”  Under the 
Fourteenth Amendment, 30 So. Cal. L. R ev. 208 (1957); 
Van Alstyne and Karst, State Action, 14 Stan. L. Rev. 3 
(1961); Peters, Civil Rights and State Non-Action, 34 
Notre Dame Lawyer 303 (1959); Traynor, Law and Social 
Change in a Democratic Society, 1956 U. of III. L. F or. 220.



6

Plaintiffs contend that the hospitals must admit them, 
as patients and as doctors, without regard to their race. 
Defendants contend that plaintiffs have not stated a cause 
of action, because the hospitals are “ private”  entities. The 
question whether plaintiffs have stated a cause of action is, 
in the first instance, a matter controlled, in the Federal 
system, by State law. Federal law is applicable to the 
legal relationship, as determined by State law, between the 
“ private”  plaintiffs and defendants only through Federal 
constitutional limitations. In this case, as will be discussed 
below, North Carolina law denies a cause of action to plain­
tiffs on the facts alleged in the complaint. It is our position 
that this denial by State law of a cause of action to plain­
tiffs is violative of the Fourteenth Amendment.

The denial under State law—by sustaining a demurrer 
or granting a motion to dismiss—of a cause of action for 
damages, or injunction or other relief, against another 
would be no less “ state action”  under the Fourteenth 
Amendment than the granting of the cause of action, by 
awarding damages or other relief. A State court judgment 
for a defendant pursuant to State law, would be no less 
“ state action”  than a judgment for a plaintiff, pursuant to 
State law. “ . . . [T]he action of state courts in enforcing 
a substantive common-law rule formulated by those courts, 
may result in the denial of rights guaranteed by the Four­
teenth Amendment. . . . ”  Shelley v. Kraemer, 334 U. S. 1, 
17 (1948). This basic principle has been recognized by the 
North Carolina Supreme Court: “ Courts must act when 
parties apply to them—even refusal to act is a positive 
declaration of law. . . . ”  State v. Avent, 253 No. Car. 580, 
118 S. E. 2d 47, 54 (1961), cert, granted, 370 IT. S. 934 
(1962). The principle is well illustrated in Truax v. Cor­
rigan, 257 U. S. 312 (1921). There plaintiffs sought an 
injunction to restrain picketing by the defendant employees 
and a labor union in a labor dispute. Defendants de­
murred, basing their argument on an Arizona statute which 
provided that State courts could not grant injunctions in



7

labor disputes—i.e., that under State law plaintiffs did not 
have a cause of action. The majority of the Court held 
that the Arizona statute, denying a cause of action for an 
injunction in the particular fact situation, violated the due 
process and equal protection clauses of the Fourteenth 
Amendment. The following excerpts from the majority 
opinion express the principle:

“ A  law which operates to make lawful such a 
wrong as is described in plaintiffs’ complaint de­
prives the owner of the business and the premises 
of his property without due process, and can not be 
held valid under the Fourteenth Amendment.”  257 
U. S. at 328,

“ It is true that no one has a vested right in any 
particular rule of the common law, but it is also true 
that the legislative power of a State can only be 
exerted in subordination to the fundamental prin­
ciples of right and justice which the guaranty of due 
process in the Fourteenth Amendment is intended to 
preserve, and that a purely arbitrary or capricious 
exercise of that power whereby a wrongful and highly 
injurious invasion of property rights, as here, is 
practically sanctioned and the owner stripped of all 
real remedy, is wholly at variance with those prin­
ciples.’ ”  257 U. S. at 329-30.

“ To give operation to a statute whereby serious 
losses inflicted by such unlawful means are in effect 
made remediless, is, we think, to disregard funda­
mental rights of liberty and property and to deprive 
the person suffering the loss of due process of law.”  
257 U. S. at 330.

Four Justices dissented in Truax v. Corrigan on the 
merits of the constitutional issue itself. But the dissenting 
Justices agreed that the principle of State law denying the 
cause of action was subject to the limitations on State law 
imposed by the Fourteenth Amendment:

“ And, just as one State might establish such pro­
tection by statute, so another State may by statute 
disestablish the protection, even as States have dif­



8

fered in their judicial determination of the general 
law on the subject. In neither case can I find ground 
for declaring that the State’s action is so arbitrary 
and devoid of reasonable basis that it can be called 
a deprivation of liberty or property without due 
process of law, in the constitutional sense.”  Pitney, 
J., 257 U. S. at 349. (Emphasis added.)

“  . . . [T]he judgment in the Supreme Court of 
Arizona should . . .  be affirmed . . . because in 
permitting damage to be inflicted by means of boy­
cott and peaceful picketing Arizona did not deprive 
the plaintiffs of property without due process of law 
or deny them equal protection of the laws. . . .”  
Brandeis, J., 257 U. S. at 376.

(It should be clearly noted here that we do not contend 
that Truax v. Corrigan was rightly decided on the issue of 
the constitutionality of the State action; indeed, it is 
clear that the case would be differently decided today. But 
that does not affect the principle that denial of a cause of 
action under State law is “ state action”  for purposes of 
the Fourteenth Amendment.)

Another example of the testing under the Fourteenth 
Amendment of a principle of State law denying a cause of 
action to a plaintiff is McCabe v. Atchison, Topeka <& Santa 
Fe R.R., 235 U. S. 151 (1914), in which the Supreme Court 
said unanimously, in a suit by Negro plaintiffs to restrain 
the defendant railroads from operating sleeping cars and 
dining cars exclusively for white passengers, that an Okla­
homa statute permitting the denial of accommodations to 
Negroes, and therefore denying the plaintiffs a cause of 
action for an injunction, would be violative of the equal 
protection clause. This principle is further illustrated 
in the opinions of Justices Stewart, Frankfurter, and Har­
lan in Rurton v. Wilmington Parking Authority, 365 U. S. 
715 (1961). Mr. Justice Stewart there said: “ The highest 
court of Delaware has thus construed this legislative enact­
ment as authorizing discriminatory classification [by a



9

restaurant in selecting its clientele] based exclusively on 
color. Such a law [which would deny to those discrimi­
nated against a cause of action to enjoin the discrimina­
tion] seems to me clearly violative of the Fourteenth 
Amendment.”  365 U. S. at 726-27. An additional illustra­
tion of the possible unconstitutionality of the denial of a 
cause of action under State law is the result reached in 
Burton v. Wilmington Parking Authority, supra, in which 
the Supreme Court reversed a State Supreme Court deci­
sion dismissing the plaintiff’s complaint. That the prin­
ciple discussed here is neither new nor novel is illustrated 
in a State court’s application of the principle in Park v. The 
Detroit Free Press Co., 72 Mich. 560, 40 N. W. 731 (1888), 
which held a ‘ ‘ retraction ’ ’ statute unconstitutional because 
it denied a cause of action for general damages in defama­
tion.

Denial by North Carolina law of a cause of action for 
damages or injunctive relief to the plaintiffs in this ease 
would be, then, action of the State which is subject to 
whatever limits the Fourteenth Amendment imposes on 
State law. And for purposes of the due process and equal 
protection clauses of the Fourteenth Amendment, it is, of 
course, well established that it is irrelevant whether the 
“ state action”  is in the enforcement or giving effect to 
statutory law, as was so in such cases as Truax v. Corri­
gan, or to the common law of the State. See American 
Federation of Labor v. Swing, 312 IT. S. 321 (1941); Shelley 
v. Kraemer, 334 U. S. 1 (1948).

There is, apparently, no North Carolina statute or judi­
cial decision on the specific question whether Negro patients 
and doctors have a right under State law that nonprofit 
“ private”  hospitals not discriminate against them on 
the basis of race in permitting access to such hospitals. 
North Carolina decisions in analogous areas do, however, 
indicate clearly the principle of North Carolina law ap­



1 0

plicable in the present case— that plaintiffs do not have a 
cause of action against the defendant hospitals:

“ No statute of North Carolina requires the exclu­
sion of Negroes and of White people in company with 
Negroes from restaurants, and no statute in this 
State forbids discrimination by the owner of a restau­
rant of people on account of race or color, or of White 
people in company with Negroes. In the absence of 
a statute forbidding discrimination based on race 
or color in restaurants, the rule is well established 
that an operator of a privately owned restaurant 
privately operated in a privately owned building has 
the right to select the clientele he will serve, and to 
make such selection based on color, race, or White 
people in company with Negroes or vice versa, if he 
so desires. He is not an innkeeper. This is the 
common law. . . . State v. Avent, 253 No. Car. 580, 
118 S. E. 2d 47, 51 (1961), cert, granted, 370 IJ. S. 
934 (1962).

‘ ‘ The right of an operator of a private enterprise 
to select the clientele he will serve and to make such 
selection based on color, if he so desires, has been 
repeatedly recognized by the appellate courts of this 
nation. . . . The owner-operator’s refusal to serve 
defendants, except in the portion of the building 
designated by him, impaired no rights of defend­
ants.”  State v. Glyburn, 247 No. Car. 455, 101 S. E. 
2d 295, 299 (1958).

At common law innkeepers and common carriers were 
under a duty to serve all. Other “ private”  enterprises, 
including hospitals, Birmingham Baptist Hospital v. Crews, 
229 Ala. 398, 157 So. 224 (1934), are generally held to be 
free to select their clientele on any basis. North Carolina 
has not changed by statute this common-law principle with 
respect to “ private”  hospitals. (Indeed, North Carolina 
has changed the common-law principle with respect to inn­
keepers, and innkeepers are apparently permitted to utilize 
racial criteria in admitting and serving customers. See 
No. Car. Gen. Stat. section 72-1; State v. Steele, 106 No. Car.



11

766, 11 S. E. 478 (1890).) In the decisions quoted above 
North Carolina continued to follow the common-law prin­
ciple outside the area of innkeepers. North Carolina law 
here, then, denies a cause of action to these plaintiffs 
against the defendant hospitals-—i.e., North Carolina law 
makes the racial discrimination by the hospitals privileged 
in the sense that plaintiffs have no right to be free of 
the application by defendants of a racial standard for 
admission.

The issue here, then, assuming that the defendant hos­
pitals are not “ State agencies,”  is whether North Carolina 
law denying a cause of action (for damages or for an 
injunction) to Negro plaintiffs who are excluded on 
grounds of race from access to the benefits of defendant 
“ private”  hospitals is violative of the due process and 
equal protection clauses of the Fourteenth Amendment. 
It is our contention that this principle of North Carolina 
law is violative of that Amendment. The only constitu­
tional principle of North Carolina law there can be denoting 
legal relationships between these patients and doctors and 
the hospitals would be a principle forbidding the hospitals 
to utilize race as a standard for access to the benefits of 
the hospitals. The hospitals’ motion to dismiss, based, as 
it must be, on a principle of North Carolina law that they 
are permitted to discriminate, should not have been granted, 
for it is unconstitutional for North Carolina to fail to give 
plaintiffs the legal right to be free of racial discrimination 
on the facts of this case. It would be violative of the Four­
teenth Amendment for a North Carolina State court to dis­
miss the plaintiffs’ complaint, if this case were in a State 
court. The District Court should not, therefore, have dis­
missed the complaint, for that dismissal gave effect to an 
unconstitutional principle of State law.

It should be noted here that this contention was not 
adjudicated in Eaton v. Board of Managers of James 
Walker Memorial Hospital, 261 F. 2d 521 (C. A. 4th 1958);



12

cert, den., 359 U. S. 984 (1959). The issue decided in that 
case was solely that the “ private”  hospital was not an 
“ agency”  of the State and that the hospital was therefore 
not subject to the requirements of the Fourteenth Amend­
ment. The District Court in Eaton said:

“  . . . the defendants move to dismiss contending 
that the denial of ‘ Courtesy Staff’ privileges to the 
plaintiffs by the hospital is not State action within 
the purview of the Fourteenth Amendment . . . . 
The ultimate question, therefore, is whether the 
action of the hospital constituted public or private 
conduct. I f  the hospital is a private corporation, 
then its conduct is also private . . . .  These factors 
do not carry with them such control as to render 
the hospital a public corporation . . . the act of 
discrimination did not constitute ‘ State action’.”  
164 F. Supp. 191, 195, 197-98 (E. D. N. C. 1958).

The Court of Appeals in Eaton said:
“ Federal jurisdiction is based on the theory that 

the Board of Managers of the hospital . . .  is an 
instrumentality of the City of Wilmington . . . and 
as such is an agency of the State of North Carolina 
. . . the hospital was not an instrumentality of the 
State but a corporation managed and operated by 
an independent board free from State control.”  
261 F. 2d at 522, 525.

Our argument, that even if it be concluded that the hospitals 
are not State “ agencies,”  the principle of State law that 
plaintiffs do not have a cause of action against the hospitals 
is violative of the Fourteenth Amendment, was apparently 
not presented to, and, in any event, was not ruled upon by 
the District Court or the Court of Appeals in the Eaton 
case. There is no need to distinguish or overrule Eaton 
with respect to the issue of the constitutionality of North 
Carolina law permitting the racial discrimination by the 
hospitals if they are not State agencies, for the Eaton 
opinions did not consider this issue.



13

There are a number of judicial decisions which provide 
the basis for our contention. These are cases which, in 
effect, held to be unconstitutional principles of State law 
which permitted a “ private”  person to discriminate, on 
racial grounds, in making its facilities or benefits available 
to other “ private”  persons. They are cases which, upon 
analysis, are citable for the proposition that State law could 
not constitutionally deny to Negroes appropriate legal 
relief against the “ private”  entities in each case which 
refused to extend their benefits or facilities to Negroes. 
There have been in these cases at least three interdependent 
factors which have contributed to sustaining the conclusions 
of unconstitutionality. Consideration of these factors, indi­
vidually and in combination, should lead to the conclusion 
that it is violative of the Fourteenth Amendment for North 
Carolina law here to deny plaintiffs a cause of action for 
appropriate relief to restrain defendant hospitals from 
excluding the plaintiffs from the hospitals on grounds of 
race. These factors are:

1. The function and role of the “ private”  entity in 
effectuation of an official State policy or program: the 
“ private”  entity as an instrument for the achievement of 
a relatively specific State purpose.

This factor is 'well illustrated in the white primary cases, 
where the primary conducted by the “ private”  political 
party is an inseparable part of the conduct of the later gen­
eral election. State law which permits the “ private”  
political party to refuse to allow Negroes to participate in 
the primary, or which permits a “ private”  political club 
to refuse to allow Negroes to vote in a pre-primary con­
ducted by the club (where the winner in the pre-primary is 
in effect the winner in the general election), is clearly viola­
tive of the Fifteenth Amendment. Smith v. Allwright, 321 
U. S. 649 (1944); Terry v. Adams, 345 U. S. 461 (1953). 
This factor was referred to in the majority opinion in



14

Burton v. Wilmington Parking Authority, 365 U. S. 715, 
723-24 (1961):

“ . . . [T]he commercially leased areas [of res­
taurant facilities to a private operator in a govern­
ment-owned parking building] were not surplus state 
property, but constituted a physically and financially 
integral and, indeed, indispensable part of the State’s 
plan to operate its project as a self-sustaining unit. 
. . .  It cannot be doubted that the peculiar relationship 
of the restaurant to the parking facility in which it is 
located confers on each an incidental variety of 
mutual benefits.”

Another example is Derrington v. Plummer, 240 F. 2d 922 
(C. A. 5th 1956), cert, den., 353 U. S. 924 (1957), in which 
State law permitted a lessee of restaurant premises in a 
county courthouse to refuse to serve Negroes. The pri­
vately-operated restaurant was an integral part of opera­
tion of the courthouse and it was held, in effect, that State 
law permitting the racial discrimination was unconstitu­
tional.

Here, the defendant hospitals are part of the formal 
North Carolina “ State Plan”  for hospital facilities, 
developed as part of State participation in the Federal 
Hill-Burton program. The significance of this formally 
adopted ‘ ‘ State Plan ’ ’ cannot be overemphasized. In itself, 
it markedly distinguishes this case from Eaton v. Board of 
Managers of James Walker Memorial Hospital, supra, but 
was not referred to in the district court’s discussion of the 
application of Eaton to this case. The North Carolina Hill- 
Burton ‘ ‘ State Plan, ’ ’ from its inception, has had provision 
for racially separate hospital facilities. The defendant 
hospitals are officially designated “ private”  entities 
utilized in effectuating the purposes of this “ State Plan.”  
North Carolina has a declared policy and a detailed plan for 
the provision of hospital facilities in the State. ‘ ‘ Private ’ ’ 
hospitals, such as the defendant hospitals in this case, even 
without the presence of a Hill-Burton Act “ State Plan,”



15

have long been recognized as serving a basic “ public 
purpose.”  See, e.g., Finan v. Mayor and City Council of 
Cumberland, 154 Md. 563, 141 Atl. 269 (1928); Craig v. 
North Miss. Community Hosp., 206 Miss. 11, 39 So. 2d 523 
(1949); Parker v .Bates, 216 S. C. 52, 56, S. E. 2d 723 (1949); 
Legat v. Adorno, 138 Conn. 134, 83 A. 2d 185 (1951); 
Opinion of the Justices, 99 N. H. 519, 113 A. 2d 114 (1955). 
I f  these hospitals did not exist, North Carolina’s declared 
purpose is to provide hospital facilities through direct 
governmental action. See, e.g., the policy declaration in 
No. Car. Gen. Stat., section 131-91, the “ Hospital Authori­
ties Law” :

“ It is hereby declared that conditions resulting 
from the concentration of population in various cities 
and towns of the State having a population of more 
than seventy-five thousand inhabitants require the 
construction, maintenance and operation of adequate 
hospital facilities for the care of the public health 
and for the control and treatment of epidemics, for 
the care of the indigent and for the public welfare; 
that in various cities and towns of the State having 
a population of more than seventy-five thousand 
inhabitants, there is a lack of adequate hospital 
facilities available to the inhabitants thereof and 
that consequently many persons including persons 
of low income are forced to do without adequate 
medical and hospital care and accommodations; that 
these conditions cause an increase in and spread of 
disease and crime and constitute a menace to the 
health, safety, morals and welfare of the State and 
impair economic values; that the aforesaid condi­
tions also exist in certain areas surrounding such 
cities and towns; that these conditions cannot be 
remedied by the ordinary operations of private 
enterprises; that the providing of adequate hospital 
and medical care are public uses and purposes for 
which public money may b,e spent and private prop­
erty acquired; that it is in the public interest that 
adequate hospital and medical facilities and care be 
provided in such concentrated centers of population 
in order to care for and protect the health and public



16

welfare; and the necessity in the public interest for 
the provision hereinafter enacted is hereby declared 
as a matter of legislative determination.' ’ (Emphasis 
added.)

See also the statute creating the “ North Carolina Medical 
Care Commission,”  which performs the State functions 
under the Hill-Burton Act. No. Car. Gen. Slat., section 
131-120, which provides for the conduct of surveys in 
North Carolina to determine, among other things, “ what 
assistance by the Slate, if any, is necessary to supplement 
all other available funds, to finance the construction of new 
hospitals and health centers, additions to existing hospitals 
and health centers, and necessary equipment to provide 
adequate hospital service for the citizens of the county or 
area . . . . ”  The role of the defendant “ private”  hospitals 
in the achievement of the purposes of North Carolina policy 
for provision of hospital care to the people of North 
Carolina is integral and indispensable.

2. The conflicting interests of the discriminatee and the 
discriminator. The nature and degree of injury to the 
person discriminated against in being denied the benefit 
or facility, and the “ interests”  of the discriminator in being 
permitted to discriminate.

Plaintiffs seek admission to the defendant hospitals as 
patients in need of hospital care who wish to have access 
to such care in “ the most complete medical facilities in the 
locality,”  and as doctors who wish to have the opportunity 
to pursue and advance in their profession by being permitted 
to practice in such facilities. Plaintiffs claim an interest 
in having access to these medical facilities without regard 
to their race.

In determining the constitutionality of State law which 
denies these plaintiffs a cause of action for appropriate 
relief against the hospitals, the nature, degree, and signi­
ficance of injury to the plaintiffs should be judged by con­



17

sidering the, injuries to plaintiffs in cases which support 
the principle that it is violative of the Fourteenth Amend­
ment in some situations for State law to permit—by denying 
judicial relief to enjoin— racial discrimination by a 
‘ ‘ private ’ ’ person or entity. These, cases include:

(a) The white primary cases, such as Terry v. Adams, 
345 U. S. 461 (1953), where State law permission to a 
“ private”  political club to exclude Negroes from pre­
primaries conducted by the, club in practical effect re­
sulted in denial of the vote in the general election. Mr. 
Justice Black said in his opinion in Terry v. Adams:

“ It violates the Fifteenth Amendment for a State, 
by such circumvention, to permit within its borders 
the use of any device that produces an equivalent of 
the prohibited election”  345 U. S. at 469. (Emphasis 
added.)

Mr. Justice Frankfurter said, in his opinion:
“ The evil here is that the State, through the action 

and abdication of those whom it has clothed with 
authority, has permitted white voters to go through 
a procedure which predetermines the legally devised 
primary”  345 IT.' S. at 477. (Emphasis added.)

And Mr. Justice Clark said:
“ . . . [Bjecause the Jaybird-indorsed nominee 

meets no opposition in the Democratic primary, the 
Negro minority’s vote is nullified at the sole stage of 
the local political process where the bargaining and 
interplay of rival political forces would make it 
count. The Jaybird Democratic Association device, 
as a result, strikes to the core of the electoral process 
in Fort Bend County. . . .  the Jaybird Democratic 
Association is the decisive power in the county’s 
recognized electoral process.”  345 IT. 8. at 484.

(b) McCabe v. Atchison, Topeka do Santa Fe R. R., 235 
U. S. 151 (1914), where State law permission to a railroad 
to exclude Negroes from sleeping cars and dining cars re­



1 8

suited in impairment of the opportunity to Negroes to 
travel on equal terms with whites. The Court there said:

“ It is the individual who is entitled to the equal 
protection of the laws, and if he is denied by a com­
mon carrier, acting in the matter under the authority 
of a state law, a facility or convenience in the course 
of his journey which under substantially the same 
circumstances is furnished to another traveler, he 
may properly complain that his constitutional privi­
lege has been invaded.”  235 U. S’, at 161-62.

See also Boman v. Birmingham Transit Co., 280 F. 2d 531 
(C. A. 5th 1960).

(c) Burton v. Wilmington Parking Authority, 365 U. S. 
715 (1961), in which plaintiff was denied access to a pri­
vately-operated restaurant and in which the Supreme Court 
held that the plaintiff was entitled to injunctive relief.

(d) In another context, Marsh v. Alabama, 326 U. S. 501 
(1946), in which it was held, in effect, that State law could 
not constitutionally permit a “ private”  town to refuse to 
allow a private person to distribute religious literature 
within the “ private”  premises. The effect of that principle 
of State law was to deny potential communication with all 
of the persons in the “ town,”  and thus seriously to impair 
the opportunity to exercise freedoms of speech, press, and 
religion. Mr. Justice Black there said:

“ When we balance the Constitutional rights of 
owners of property against those of the people to 
enjoy freedom of press and religion, as we must here, 
we remain mindful of the fact that the latter occupy 
a preferred position. . . .  In our view the circum­
stance that the property rights to the premises where 
the deprivation of liberty, here involved, took place, 
were held by other than the public, is not sufficient 
to justify the State’s permitting a corporation to 
govern a community of citizens so as to restrict their 
fundamental liberties and the enforcement of such 
restraint by the application of a state-statute.”  326 
U. S. at 509. (Emphasis added.)



19

The injury to the plaintiffs here in being denied access 
to the hospitals involves denial of access to medical care 
and the opportunity effectively to practice a profession. 
The denial of access is by non-profit charitable entities, as 
distinguished from individuals pursuing their own personal 
interests. These injuries, in their specific context, should 
be compared to the injuries to the persons discriminated 
against on grounds of race in the cases referred to imme­
diately above, which involve the opportunity to vote, the 
opportunity to use a means of transportation, the oppor­
tunity to obtain a meal in a restaurant, and, in a nonracial 
context, the opportunity to exercise freedoms of religion 
and press. The injuries to the plaintiffs in the present case 
are no less serious or significant than were the injuries in 
these analogous cases. The plaintiffs’ injuries in the pres­
ent case should be distinguished from other types of injuries 
from being denied a benefit on grounds of race in which the 
magnitude of injury is probably not sufficient to lend any 
substantial weight to a conclusion that it would be uncon­
stitutional for State law to permit the discrimination to 
occur. This would be the case, for example, with the uni­
versal principle of State law that a ‘ ‘ private ’ ’ home owner 
can select invitees to his home on the basis of race. There 
the benefit denied, on racial grounds, is not of sufficient 
significance, nor the injury done to the person denied the 
benefit of sufficient magnitude, to warrant a conclusion of 
unconstitutionality.

Specific attention should also be directed to the “ inter­
ests”  of the discriminator. In the case of the individual 
home owner selecting his guests the discrimination is that 
of a person pursuing an individual interest concerning his 
personal and social relationship in his home with others. 
The “ interests”  of the defendant hospitals which are ad­
vanced by their being permitted to discriminate on racial 
grounds are, at best, difficult to articulate, and for present 
purposes are non-existent or insignificant. The hospitals 
themselves—non-profit, charitable institutions— surely have



2 0

no strong interest here to advance. Nor, indeed, do donors 
to the hospitals, as compared, for example, to individual 
home owners selecting their guests. And it must be kept in 
mind that even if there is assumed to be a relatively signifi­
cant interest of the discriminator in being permitted to dis­
criminate—as might be so, for example, in the case of 
members of a “ private”  political club choosing their asso­
ciates—if the injury done to the person discriminated 
against is of great enough significance—for example, effec­
tive denial of the opportunity to vote in the general election 
— a State cannot constitutionally permit the discrimination 
to occur.

The injuries to the plaintiffs in this case—denial of 
high-quality hospital care and of the opportunity effectively 
to practice a profession—are serious and significant in­
juries, closely analogous to the injuries which have been 
present in cases where it is clear that State law cannot 
constitutionally permit “ private”  discrimination on racial 
grounds. In this case, given the competing interests of dis­
criminators and those discriminated against, it is violative 
of the Fourteenth Amendment for North Carolina to prefer 
the interests of the discriminators.

3. Degree of responsibility of the “ State”  for the racial 
discrimination by the “ private”  entity.

If State law compels a private person to discriminate 
against another on racial grounds, that State law is clearly 
violative of the Fourteenth Amendment. Browder v. Gayle, 
142 F. S'upp. 707 (M. D. Ala 1956) affirmed, 352 U. S. 903 
(1956) (compulsory segregation in privately-owned buses); 
Shelley v. Kraemer, 334 U. S. 1 (1948) (State law in effect 
enforced promise of a “ private”  person not to sell real 
property to a N egro); Turner v. City of Memphis, 369 U. S. 
350 (1962). If State law permits racial discrimination by a 
“ private”  entity it may, in view of the other two factors



2 1

discussed above, be unconstitutional. See, e.g., Terry v. 
Adams, 345 U. S. 461 (1953); Burton v. Wilmington Park­
ing Authority, 365 U. S. 715 (1961) (concurring opinion of 
Mr. Justice Stewart, and dissenting opinions of Justices 
Frankfurter and Harlan). In this case North Carolina law, 
at the minimum, permits the hospitals to discriminate on 
racial grounds, aside from other aspects, discussed in the 
next paragraph below, of the State’s responsibility in this 
case for the racial discrimination by the hospitals. In our 
view it is violative of the Fourteenth Amendment for State 
law to permit such racial discrimination here because of 
the role of the defendant hospitals in achievement of the 
purposes of the North Carolina “ State Plan”  for hospital 
facilities, and because of the nature and degree of injuries 
to the plaintiffs in being denied access to the hospital 
facilities.

The more the State becomes a causal factor in racial 
discrimination by a “ private”  person—in the terms used 
in Burton v. Wilmington Parking Authority, 365 II. S. 715, 
724 (1961), the more the State “ participates in”  and 
becomes “ involved”  in discriminatory action—the more 
likely State law making that discrimination possible would 
be violative of the Fourteenth Amendment. Here the 
North Carolina responsibility for the “ private”  discrimina­
tion is more than “ passive permission.”  North Carolina 
has in a sense actively encouraged and fostered the building 
and operation of hospitals which discriminate on racial 
grounds by adopting a Hill-Burton Act “ State Plan”  pro­
viding for “ separate but equal facilities,”  and by making 
the defendant hospitals part of the “ State Plan”  so as 
to qualify them for Federal funds. North Carolina further 
encourages and fosters the operation of the hospitals by 
granting tax exemptions. In addition, North Carolina 
prohibits the operation of a hospital without a license 
granted by a State agency. No. Car. Gen. Stat. section 
131-126.3. This factor of the need for a license was present



2 2

in the cases involving racial discrimination in transporta­
tion facilities. McCabe v. Atchison, Topeka, and Santa Fe 
R.R., 235 U. 8. 151 (1914); Boman v. Birmingham Transit 
Co., 280 F. 2d 531 (C. A. 5th 1960). Mr. Justice Douglas 
has said of the significance in such a case of licensing by the 
State:

“ I do not believe that a State that licenses a 
business can license it to serve only whites or only 
blacks or only yellows or only browns. Race is an 
impermissible classification when it comes to parks 
or other municipal facilities by reason of the Equal 
Protection Clause of the Fourteenth Amendment. 
By the same token, I do not see how a State can con­
stitutionally exercise its licensing power over busi­
ness either in terms or in effect to segregate the races 
in the licensed premises. . . . Those who license 
enterprises for public use should not have under 
our Constitution the power to license it for the use 
of only one race. For there is the overriding con­
stitutional requirement that all State power be exer­
cised so as not to deny equal protection to any 
group.”  Garner v. Louisiana, 368 U. S. 157, 184-85 
(1961) (concurring opinion).

Not only, then, does North Carolina law permit racial dis­
crimination by the defendant hospitals, by denying the 
plaintiffs a cause of action, but it also assists materially 
in creating and maintaining the facilities in which the per­
mitted discrimination is carried on. North Carolina’s 
responsibility for the racial discrimination by the defendant 
hospitals is certainly no less than Delaware’s similar re­
sponsibility in Burton v. Wilmington Parking Authority, 
supra.

Conclusion

We contend, then, that in view of the function and role 
of the defendant hospitals in effectuation of North Caro­
lina’s “ State Plan”  for hospital facilities, the nature and 
degree of injuries to the plaintiffs in being denied admission



23

to the hospitals on equal terms with whites, and the degree 
of responsibility of North Carolina for the racial discrimi­
nation by defendant hospitals, the conclusion is required 
that the principle of North Carolina law permitting the 
defendant hospitals to deny plaintiffs access to the hos­
pitals because of their race, and denying a cause of action 
for an injunction to the plaintiffs, is violative of the Four­
teenth Amendment. North Carolina State law, by denying 
a cause of action, here deprives the patient-plaintiffs of a 
means of preserving life, and the doctor-plaintiffs of liberty 
and property interests in the pursuance of their profession, 
without due process of law. North Carolina State law, in 
denying both classes of plaintiffs a cause of action to 
restrain the application to them of a racial standard for 
access to the benefits of the hospitals, denies to them the 
equal protection of the laws. Plaintiffs are, therefore, 
entitled to an injunction which would restrain the defend­
ants from acting beyond the scope of what it is constitu­
tionally permissible for the State of North Carolina to 
permit the defendants to do. Defendants should, therefore, 
be enjoined from refusing their facilities to the plaintiffs on 
grounds of race. Consequently, the judgment of the district, 
court dismissing the plaintiffs’ complaint should be re­
versed.

Respectfully submitted,
Marion A. W right,

Linville Falls, North Carolina.
J ohn H. W heeler,

Mechanics and Farmers Bank, 
Durham, North Carolina, 

Attorneys for Amicus Curiae.
Lawrence Speiser,
Melvin L. W ule,

of Counsel.
March, 1963.



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