Correspondence from Lani Guinier to Spencer D. Mercer (Clerk) Re: Wilder v. Lambert 1

    UNITED STATES COURT OF APPEALS 
For The Fifth Circuit, En Banc

In The

No. 29013

ANDREW HAWKINS, et al.,
Plaintiffs-Appellants,

-v. -
TOWN OF SHAW, MISSISSIPPI, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi

APPELLANTS' SUPPLEMENTAL BRIEF 
ON REHEARING EN BANC

JACK GREENBERG 
JONATHAN SHAPIRO 

10 Columbus Circle 
New York, New York 10019

REUBEN V. ANDERSON 
MELVYN LEVENTHAL

538*5 North Farish Street 
Jackson, Mississippi 39202

Attorneys for Plaintiffs-Appellants



Statement

I N D E X
Page

1

Argument
I . The Panel Correctly Concluded That Evidence of the Gross Inferiority 

of the Municipal Services Provided 
to the Black Residents of Shaw Made 
Out a Prima Facie Case of Racial Discrimination Which Violated Equal 
Protection Because It Was Not Jus­
tified By a Showing of a Compelling 
State Interest ----------------------

II. The Relief Granted is Appropriate 
Conclusion ---------------------------------

Table of Cases
Armstead v. Starkville Mun. Sep. Sch. Dist.,---F.Supp. ___ 3 FEP 418 (N.D. Miss. 1971) --
Arrington v. Mass. Bay Transportation Auth.,

306 F.Supp. 1355 (D. Mass. 1969) --------
Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961) -------------------------
Carter v. Gallagher, ___ F.Supp. ---, 3 CCHLab-Cases EPD *(8205 (D. Minn. 1971) -----
Gomillion v. Lightfoot, 364 U.S. 339 (1960)
Green v. County School Bd., 391 U.S. 430

(1968) -------------------------------
Griqgs v. Duke Power Co., ___ U.S. --. 2 8L.ed. 2d, 158 (March 8, 1971) ---------
Guinn v. United States, 238 U.S. 347 (1915)
Jackson v. Godwin, 400 F.2d 529 (8th Cir.

1968) -----------------------------------
Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968)

6

6

5

6 
3

7

6

3

4
4



11

Kennedy Park Homes 
436 F .2d 108
___ U.S. ___,6, 1971) ---

Ass n v. City of Lackawanna, 
(2nd Cir. 1970), cert, denied 28 L.ed.2d 546 (April

Loving v. Virginia, 388 U.S. 1 (1967) ______
McLaughlin v. Florida, 379 U.S. 184 (1964) --
Monroe v. Pape, 365 U.S. 167 (1961) ________
Norwalk CORE v. Norwalk Redevelopment Agency 395 F .2d 920 (2d Cir. 1968) ____ _
Penn. v. Stumpf, 308 F.Supp. 1238 (N Dcai. 1970) -----------------________
Smith v. Texas, 311 U.S. 128 (1940) ________
Swann v. Charlotte-Mecklehburg Bd. of Ed.,

l97iV’fl_rrrl_28 L -e d -2d 554 (April'20,

Turner v. Fouche, 396 U.S. 346 (1970) ____
Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969) 
Yick Wo v. Hopkins, 118 U.S. 356 (1886) __

Page

4, 5 
4
4

4, 5

5

6 
3

7
3
4 
3



In The
UNITED STATES COURT OF APPEALS 
For the Fifth Circuit, En Banc 

No. 29013

ANDREW HAWKINS, et al.,
Plaint if f s-Appe Hants ,

- v . -

TOWN OF SHAW, MISSISSIPPI, et al.,
Defendants-Appe1lees.

Appeal from the United States District Court for the 
Northern District of Mississippi

APPELLANTS' SUPPLEMENTAL BRIEF ON REHEARING EN BANC

Statement
On January 28, 1971 a panel of this Court held that 

the gross disparities in the level of municipal services 
provided by the Town of Shaw to its black residents 
clearly made out a prima facie case of racial discrimina­

tion" which the municipal officials were unable to justify 
or rebut adequately (43/ F.2d at 1288). In concluding that 
the equal protection of the laws had been violated, the 
panel utilized what is considered "a most reliable yard­
stick namely, the quality and quantity of municipal



services provided in the white area of town" (437 F.2d 
1292). Accordingly, the panel required the Town of Shaw 
to submit a plan for the district court's approval de­
tailing how it proposes to equalize the provision of 
municipal services in the town and "to cure the results 
of the long history of discrimination which the record 
reveals" (437 F.2d at 1293).

On February 9, 1971, defendants-appellees (herein­
after the "defendants") filed a petition for rehearing en 
banc. In it, they advance essentially two arguments.
First, they contend that the panel erred in holding that 
"[i]n a civil rights suit alleging racial discrimination 
in contravention of the Fourteenth Amendment, actual in­
tent or motive need not be directly proved" (437 F.2d at 
1291-92). Secondly, they argue that it is inappropriate 
for federal courts to grant equitable relief in cases of 
this nature —  that it will thrust federal courts into the 
operations of municipal government to the same extent that 
they are involved in the operations of school boards in 
the enforcement of school desegregation decisions.

By order dated May 24, 1971, the full court ordered 
rehearing en banc and granted the parties leave to file 
supplemental briefs on or before June 14, 1971. This brief 
is submitted pursuant to the Court's direction and deals 
with the issues raised by defendants in their petition for 
rehearing as well as with recent decisions germane to this

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case.

The Panel Correctly Concluded That.
Evidence of the Gross Inferiority 
of the Municipal Services Provided 
to the Black Residents of Shaw Made 
Out a Prima Facie Case of Racial 
Discrimination Which Violated Equal Protection Because It Was Not Jus­
tified By a Showing of a Compelling State Interest.

In reversing the decision of the district court, the 
panel of this Court applied the long established principle 
that the effect as well as the purpose of governmental 
action may be sufficient to make out a prima facie case of 
racial discrimination. Gomillion v. Lightfoot, 364 U.S. 
339, 341 (1960); Smith v. Texas, 311 U.S. 128, 132 (1940); 
Guinn v. United States, 238 U.S. 347 (1915); Yick Wo v. 
Hopkins, 118 U.S. 356 (1886). As recently as last term, 
the Supreme Court reaffirmed this principle in holding that 
a substantial disparity between the percentages of black 
residents in the county and on the jury list made out a 
prima facie case of jury discrimination, thereby shifting 
the burden to the jury officials to overcome it. Turner v. 
Fouche, 396 U.S. 346, 360 (1970).

The panel also correctly held that where such a prima 
facie case of racial discrimination has been established, 
the "defendants' action may be justified only if they show 
a compelling state interest" (437 F.2d at 1288). In light 
of the fact that the central purpose of the Fourteenth 
Amendment was to bring about racial equality under the law, 
any governmental action which subjects a racial minority to

I

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special hardships" bears a heavy burden of justification 
. . .and will be upheld only if it is necessary and not
merely rationally related to the accomplishment of a per­
missible state policy." McLaughlin v. Florida., 379 U.S.
184, 196 (1964); Loving v. Virginia, 388 U.S. 1 (1967);
Jackson v. Godwin, 400 F.2d 529, 537 (8th Cir. 1968); Kennedy 
Park Homes Ass'n v. City of Lackawanna, 436 F.2d 108, 114
(2d Cir. 1970), cert. denied, ___ U.S. ---, 28 L.ed.2d 546
(April 6, 1971).

Nor did the panel err in concluding that "direct evidence 
aimed at establishing bad faith, ill will or an evil motive 
on the part of the Town of Shaw and its public officials was 
unnecessary because "[i]n a civil rights suit alleging racial 
discrimination in contravention of the Fourteenth Amendment, 
actual intent or motive need not be directly proved (437 
F .2d at 1291-92). The fact that municipal officials did not 
bring about the disparities in municipal services in Shaw 
as a result of a conscious, invidious design is essentially 
irrelevant. For the unjustified, unequal treatment of the 
black residents is clearly within the prohibition of the civil 
rights act which "makes a man responsible for the natural 
consequences of his actions." Monroe v. Pape, 365 U.S. 167, 
187 (1961); Whirl v. Kern, 407 F.2d 781, 787 (5th Cir. 1969). 
The notion that proof of "bad faith, ill will or an evil 
motive" is a necessary element to a claim under § 1983 has 
been consistently repudiated. Whir1 v. Kern, supra, 407 F.2d 
787; Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968); Kennedy 
Park Homes Ass'n v. City of Lackawanna, supra. As the Supreme

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Court said in Monroe v. Pape, supra:
"It is abundantly clear that one reason 
the legislation was passed was to afford 
a federal right in federal courts be­
cause, by reason of prejudice, passion, 
neglect, intolerance or otherwise. state 
laws might not be enforced and the claims of citizens to the enjoyment of rights, 
privileges, and immunities guaranteed by 
the Fourteenth Amendment might be denied 
by the state agencies" (365 U.S. at 180)(emphasis added).

Racial discrimination is constitutionally prohibited re­
gardless of whether it results from deliberate hostility 
or from mere indifference, since "it is of no consolation 
to an individual denied the equal protection of the laws 
that it was done in good faith." Burton v. Wilminaton 
Parking Authority, 365 U.S. 715, 725 (1961).

Thus, quoting from Norwalk CORE v. Norwalk Redevelopment 
Agency, 395 F.2d 920 (2d Cir. 1968), the panel agreed that:

'equal protection of the laws means 
more than merely the absence of governmental 
action designed to discriminate. . .we now 
firmly recognize that the arbitrary quality 
of thoughtlessness can be disastrous and 
unfair to private rights as the perversity of a willful scheme.' " (437 F.2d 1292).

Only recently, moreover, the Second Circuit reaffirmed its 
view that a specific purpose to discriminate on the basis 
of race need not be proved in order to establish a viola­
tion of equal protection. In Kennedy Park Homes Ass'n v.
City of Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert, denied,
--- u -s * ---* 28 L.ed.2d 546 (April 6, 1971), retired Justice
Clark, sitting by designation, spoke for the court in con­
demning a municipality's refusal to allow the construction

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of a black housing project in an all-white neighborhood 
based on its contention that the sanitary sewers were 
inadequate to handle the increased burden. He said:

"Even were we to accept the City's allega­
tion that any discrimination here resulted 
from thoughtlessness rather than a pur­poseful scheme, the City may not escape 
responsibility for placing its black citi­
zens under a severe disadvantage which it 
cannot justify" (436 F.2d at 114).

Where the effect of the city's action was to deprive its 
black residents of the ability to live in the same areas 
of the city as white people, "the City must show a com­
pelling governmental interest in order to overcome a 
finding of unconstitutionality" (Id,.).

In light of the pervasive evils of racial discrimina­
tion, courts have pretermitted an elusive search for direct1/evidence of a purpose to discriminate on account of race.

1/ See e.g. Griggs v. Duke Power Co., ___ U.S. ___, 28
28 L.ed.2d 158 (March 8, 1971) where the Supreme Court 
read Title VII of the Civil Rights Act of 1964 as di­
rected "to the consequences of employment practices, 
not merely the motivation (28 L.ed.2d at 165). . .The 
Act proscribes not only overt discrimination but also 
practices that are fair in form, but discriminatory 
in operation" (28 L.ed.2d at 164). Many courts, more­
over, have applied the same standard in condemning 
racial discrimination in public employment under the 
Fourteenth Amendment. See Arrington v. Mass. Bay 
Transportation Auth., 306 F. Supp. 1355 (D. Mass. 1969); 
Penn v. Stumpf. 308 F. Supp. 1238 (N.D. Cal. 1970);Armstead v. Starkville Mun. Sep. Sch. Dist., ___ F.Supp. ___ 3 FEP 418 (N.D. Miss. 1971); Carter v.
Gallagher, ___ F. Supp. ___, 3 CCH Lab-Cases EPD f 8205(D. Minn. 1971).

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Instead, as did the panel of this Court, they have con­
demned any governmental action that has imposed upon a 
racial minority special hardships which cannot be justi­
fied by some overriding governmental interest. It is only 
in this way that courts can both provide assurance that the 
unequal treatment of black people is not the result of for­
bidden racial motivation and further the historic purpose 
of the Fourteenth Amendment to promote racial equality 
under law.

II
The Relief Granted is Appropriate

In requiring the defendants to submit a plan for the 
district court1s approval under which the inequalities in 
the provision of municipal service would be eliminated, the 
panel acted "in the highest tradition of Federalism where- 
under local governments are to carry out their function 
and responsibilities in a system where every level of gov­
ernment, federal, state and local is subject to the federal 
Constitution" (437 F.2d at 1295 (Bell, J. concurring opinion)). 
But the defendants argue that such a remedy may thrust the 
federal courts into the daily operations of local government, 
requiring them to make sometimes complex and difficult de­
cisions .

The short answer to this argument, however, was recently 
given by the Supreme Court in Swann v. Charlotte-Mecklenburg 
Bd. of Ed., ___U.S. ____, 28 L.ed.2d 554 (April 20, 1971):

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"Once a right and a violation have been 
shown, the scope of a district court's equitable powers to remedy past wrongs 
is broad, for breadth and flexibility 
are inherent in equitable remedies"(28 L.ed.2d at 566) .

A municipal equalization case, like a school desegregation 
case:

"does not differ fundamentally from 
other cases involving the framing 
of equitable remedies to repair the 
denial of a constitutional right.
The task is to correct, by a balancing 
of the individual and collective in­
terests, the condition that offends the Constitution" (Ibid.).

Thus, the defendants here are "clearly charged with the 
affirmative duty to take whatever steps might be necessary 
to convert to a. . .system in which racial discrimination 
would be eliminated root and branch" (Ibid.. quoting from 
Green v. County School Bd., 391 U.S. 430 (1968)).

It is premature, moreover, to anticipate problems in 
the enforcement of whatever decree that the district court 
may ultimately enter. There is no reason to assume that 
any legitimate financial or other concerns of the defendants 
will not be given full consideration by the district court 
in the framing of its decree. Finally, there is no reason 
to believe that the district court or other federal courts 
will have to face the same kind of deliberate resistance 
to the enforcement of their decrees in this area that they 
have in the area of school integration.

In any case, the panel correctly concluded that the 
issue of remedy is one which is properly left to the district

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court in the first instance. We are no less confident 
than the panel that the defendants can "propose a program 
of improvements that will, within a reasonable time, re­
verse the disparities that bear so heavily on the black 
citizens of Shaw." We are also confident that through 
the use of the broad and flexible equitable powers mandated 
by the Supreme Court in Swann and by this Court in countless 
cases involving racial discrimination the district court can 
see that the job is done if the municipal authorities de­
fault in their obligation.

Conclusion
For the foregoing reasons, the Court en banc should 

affirm the decision of the panel and reverse the judgment 
of the district court.

Respectfully submitted,

JACK GREENBERG 
JONATHAN SHAPIRO 
10 Columbus Circle 
New York, New York
REUBEN ANDERSON 
MELVYN LEVENTHAL 
538-i North Farish Street 
Jackson, Mississippi

Attorneys for Plaintiffs-Appellants.

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