Watson v. City of Memphis Brief for Plaintiffs-Appellants

    In the

TUnxUh States GJmtri of Appeals
S ixth  Circuit 

No. 14,662

I. A. W atson, et al.,

Plaintiffs-Appellants,

—vs.—

City  of Memphis, et al.,

Defendants-Appellees.

BRIEF FOR PLAINTIFFS-APPELLANTS

A . W . W illis, J r .
588 Vance Avenue 
Memphis, Tennessee

Constance B aker M otley 
T hurgood M arshall 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiff s-Appellants

E lwood H. Chisolm

B. L. H ooks

C. O. H orton 
B. F. J ones 
H. T. L ockard

R. B. Sugarmon, Jr.

Of Counsel



Statement of Questions Involved

1. Whether, considering the facts established, as plaintiffs 
alleged and the District Court substantially found, that 
defendants maintain and operate a racially segregated 
public recreational system, plaintiffs are entitled to a 
permanent injunction and declaration as prayed for in 
their complaint.

The District Court answered “ No.” 
Plaintiffs-appellants contend that the answer should 

be “Yes.”

2. Whether the decision in the Second School Desegrega­
tion Case, Broivn v. Board of Education, 349 U. S. 294 
(1955), which contemplates allowing a delay in the 
desegregation of public elementary and secondary 
schools, is applicable in an action involving public rec­
reational facilities.

The District Court answered “ Yes.” 
Plaintiffs-appellants contend that the answer should 

be “ No.”



INDEX TO BRIEF

PAGE

Statement of Questions Involved.... ..... ............. ..............  a

Statement of Facts ............................................................  1

A rgument :

I. Whether, considering the facts established, as 
plaintiffs alleged and the District Court sub­
stantially found, that defendants-appellees 
maintain and operate a racially segregated 
public recreational system, plaintiffs are en­
titled to a permanent injunction and declara­
tion as prayed for in their complaint ...........  6

II. Whether the decision in the Second School 
Desegregation Case, Brown v. Board of Edu­
cation, 349 U. S. 294 (1955), which contem­
plates allowing a delay in the desegregation 
of public elementary and secondary schools, 
is applicable in an action involving public
recreational facilities ........................................  9

R elief ............................. ..................... ................................ ....... . 13

T able of Cases

Bailey v. Smith, Civ. No. W649, D. Ivan., June 30, 1954 7
Booker v. State of Tennessee Board of Education, 240

F. 2d 689, 692-693 (6th Cir. 1957) ..... .......... ...... 7,10,11
Brown v. Board of Education, 349 U. S. 294 (1955) ....a, 5, 9,

10,11,12
Buchanan v. Warley, 245 U. S. 60, 81 (1917) ...............  9



i i

Charlotte Park and Recreation Commission v. Bar­
ringer, 242 N. C. 311, 88 S. E. 2d 114 (1955), cert, 
denied, sub nom. Beeper v. Charlotte Park and Recre­
ation Commission, 350 U. S. 983 (1956) .......................  9

City of Miami v. Prymus, 288 F. 2d 465 (5th Cir. 1961) 7
City of Montgomery v. Gilmore, 277 F. 2d 364, 369-370

(5th Cir. 1960) .............................. ..... .............................  10
City of St. Petersburg v. Alsup, 238 F. 2d 830 (5th Cir.

1956) ............................ ........ ...... ......................................  6-7
Clemons v. Board of Education of Hillsboro, 228 F. 2d

853, at 857-858 ................ ......... ........................................  8
Cooper v. Aaron, 358 U. S. 1, 16 (1958) ........................... 9
Cummings v. City of Charleston, 288 F. 2d 817 (4th Cir. 

1961) ................. .......................................................... 7,10,11

Detroit Housing Commission v. Lewis, 226 F. 2d 180,
184-185 (6th Cir. 1955) ..................................................... 10

Draper v. City of St. Louis, 92 F. Supp. 546 (E. D. Mo. 
1950), appeal dism’d 186 F. 2d 307 (8th Cir. 1950) .... 7

Fayson v. Beard, 134 F. Supp. 379 (E. D. Tex. 1955) .... 7
Florida ex rel. Hawkins v. Board of Control, 350 U. S.

413 (1956) .......................................................  10-11

Gilmore v. City of Montgomery, 176 F. Supp. 776 (M. D.
Ala. 1959), afPd 277 F. 2d 364 (5th Cir. 1960) ...........  7

Hampton v. City of Jacksonville, Civ. No. 436-J, S. D.
Fla., December 10, 1960 (5 Race Rel. L. Rep. 1145,
1146) ........................................     7,10

Harris v. Daytona Beach, 105 F. Supp. 572 (S. D. Fla.
1952)

PAGE

7-8



Ill

Hayes v. Crutcher, 108 F. Supp. 582 (M. D. Tenn. 1952),
vacated 137 F. Supp. 853 (M. D. Tenn. 1956) ...........  7

Holly v. City of Portsmouth, Va., 150 F. Supp. 6 (E. D.
Va. 1957) ......... ................................................................  7

Holmes v. City of Atlanta, 124 F. Supp. 290, aff’d 223 F.
2d 93 (5th Cir. 1955), rev’d 350 U. S. 879 (1955) .......  6

Jackson v. McDonald, Civ. No. 3172, E. D. Tex., July 30,
1956, appeal dism’d sub nom. Lamor State College of 
Technology v. Jackson, No. 16,443, 5th Cir., May 10,
1957 ....................................................... .................. .........  7

Kelley v. Board of Education of City of Nashville, Civ.
No. 2094, M. D. Tenn., Sept. 6, 1957 (2 Race Rel. L.
Rep. 970, 973), 159 F. Supp. 272, 274, 278, 279 (M. D. 
Tenn. 1958), aff’d 270 F. 2d 209 (6th Cir. 1959), cert, 
denied 361 U. S. 924 (1959) ......... ...... ............ ...... ......  7

Lawrence v. Hancock, 76 F. Supp. 1004 (S. D. W. Va.
1948) ................................................. ................ ...............  7

Leeper v. Charlotte Park and Recreation Commission,
Sup. Ct., 26 Jud. Disk, Mecklenburg Co., N. C., Feb.
4, 1957 (2 Race Rel. L. Rep. 411-412) .... ............... . 10

Lonesome v. Maxwell, 123 F. Supp. 193 (D. Md. 1954), 
rev’d sub nom. Dawson v. Mayor and City Council 
of Baltimore City, 220 F. 2d 386 (4th Cir. 1955), aff’d
350 L. S. 877 (1955) ..... .................................................6,11

Lopez v. Seccombe, 71 F. Supp. 679 (S. D. Cal. 1944) .... 7

McLaurin v. Oklahoma State Regents, 339 U. S. 637
(1950) .............. ........... ...................... ................. .............  8

Mayor and City Council of Baltimore v. Dawson, 350 
U. S. 877, aff’g 220 F. 2d 386 (4th Cir. 1955) ....10,11,12 

Moorhead v. City of Fort Lauderdale, 152 F. Supp. 131 
(S. D. Fla. 1957), aff’d 248 F. 2d 544 (5th Cir. 1957) 7

PAGE



IV

PAGE

Shipp v. White, Civ. No. 2789, N. D. Tex., Feb. 11, 1960 7
Simkins v. City of Greensboro, 149 F. Supp. 562 (M. D.

N. C. 1957), aff’d 246 F. 2d 425 (4th Cir. 1957) ...........  7
Sweeney v. City of Louisville, 102 F. Supp. 525 (W. D.

Ky. 1951), aff’d sub nom. Muir v. Louisville Park 
Theatrical Assn., 202 F. 2d 275 (6th Cir. 1953), 
Vacated 347 U. S. 971 (1954) .......................................  6

Tate v. Department of Conservation and Development,
133 F. Supp. 53 (E. D. Va. 1955), aff’d 231 F. 2d 615 
(4th Cir. 1956), aff’d 352 U. S. 838 (1956) ............... 6

Ward v. City of Miami, Fla., 151 F. Supp. 593 (S. D.
Fla. 1957) ........... .................. ............................................ 7

Williams v. Kansas City, 104 F. Supp. 848 (W. D. Mo. 
1952), aff’d 205 F. 2d 47 (8th Cir. 1953), cert, denied 
346 U. S. 826 (1953) ........... ............... ...........................  8,9

S tatutes and Constitutional P rovision

Constitution of the United States
Fourteenth Amendment ........................................ ....  1, 6

Civil Rights Law
28 U. S. C. §1981..........................................................  1

Other A uthorities

McKay, “ Segregation and Public Recreation” , 40 Va. L.
Rev. 697, 724 (1954) .................... ...................................  12

Nicholson, “ The Legal Standing of the South’s School 
Resistance Proposals,” 7 S. C. L. Q. 1, 59 (1954) .......  7



TABLE OF CONTENTS OF APPENDIX

PAGE

Docket Entries .........................................................   la

Complaint ...................................................   2a

Answer ..............     10a

Excerpts From Testimony on T ria l.... ....... ..................  15a

By Plaintiffs’ Witnesses:

Dr. William 0. Speight, Jr................   15a

Dr. A. E. H orne.......................................   18a

Curtis King, Jr...............    20a

Melvin Kobertson ...................................   21a

Joseph Willie Lane, Jr.............................................  23a

Dr. I. A. Watson, Jr.................................................  28a

Alma Bonds ...............................................  30a

Harold Gholston ......................................    32a

Alfred Haynes, Jr.........................................    34a

By Defendants’ Witnesses:

Harry Pierotti .....................................................   37a

Harold S. Lewis ...........................    72a

James C. Macdonald ........    100a

Findings of Fact and Conclusions of L a w ........ ..........  105a

Judgment 118a



Statement of Facts

This appeal is from a final judgment entered June 20, 
1961, whereby the United States District Court for the 
Western District of Tennessee, Western Division, per 
Hon. Marion S. Boyd, Chief Judge, which denied plaintiffs’ 
application for a permanent injunction restraining the 
Memphis Park Commission and others from operating and 
maintaining certain public recreational facilities on a ra­
cially segregated basis and which approved a plan pro­
posed by defendants for a gradual desegregation thereof 
(App. 118a-121a).

The proceedings in the court below began May 13, 1960, 
when plaintiff Negro citizens of Memphis, Tennessee, filed 
their complaint as a class action for declaratory and in­
junctive relief against defendant officers and agencies or 
departments of the City of Memphis. The gravamen of 
the complaint is that defendants operate and enforce the 
maintenance of a system of public recreational facilities 
on a racially segregated basis; that plaintiffs and other 
Negro citizens have attempted to use certain facilities 
which defendants have restricted to use by white persons 
and have been barred therefrom on account of their race 
or color; and that defendants’ maintenance and enforce­
ment of such system violates rights guaranteed under the 
Fourteenth Amendment to the Constitution and the Civil 
Eights Law, 28 U. S. C. §1981 (App. 2a-9a).

On July 1, 1960, defendants filed their answer (App. 10a- 
14a) which, aside from presenting procedural and juris­
dictional objections not material to this appeal, did not 
deny the operation and enforcement of segregated public 
recreational facilities. However, they pleaded as justifica­
tion that the quantum and quality of recreational facilities 
provided for Negro citizens is equal to those provided for



2

white citizens; that “problems” are likely to flow from 
court-ordered desegregation; that certain park areas were 
acquired by wills or deeds which restrict, condition, and 
limit such areas to use by white persons; that “ defendants 
have the duty of exercising the Police powers vested in 
such a way as to prevent riots, violence, and disharmony 
of all kinds among the races; that historically and tra­
ditionally, riots and violence have frequently occurred in 
areas where races are mixed in large numbers in places 
of amusement. Therefore, these defendants, in discharging 
their duties as public officers and in exercising the Police 
powers vested in them, have prevented the assembly of 
mixed groups in large numbers in some of the parks in 
the City of Memphis in order to maintain harmony be­
tween the races and in order to prevent violence, bloodshed 
an civil commotion” (App. 12a).

Trial on the merits was held on June 14-15, 1961. The 
facts there established, as plaintiffs alleged and the Dis­
trict Court substantially found, were that the City of 
Memphis through its Park Commission operates and main­
tains a public recreational system on a racially segregated 
basis (App. 88a, 105a, 106a-107a-108a); that this system 
consists of 131 parks and facilities, of which 108 are 
“developed” and 25 are “ undeveloped” ; that 25 of the 
developed facilities are restricted to Negroes, 25 are open 
to both races and Negroes are barred from 58; that the 
facilities operated on a racially segregated basis include 
40 “neighborhood” playgrounds for white persons and 21 
for Negroes, 8 white and 4 Negro community centers, 5 
white and 5 Negro swimming pools, 5 white and 2 Negro 
golf courses, plus 2 “ city-wide” white stadiums (PI. Ex. 
3, 4, 5, 6; App. 44a, 46a, 73a, 77a, 78a, 80a, 81a, 91a-92a) J

1 The Park Commission also operates 56 playgrounds and facilities 
on property not entirely controlled by it ; 30 of these are designated 
and maintained as “white” while the rest are restricted to Negroes 
(PI. Ex. 5; App. 44a, 73a, 80a-81a, 91a-92a).



3

that it has been the policy of the Park Commission over 
the years to designate parks and playgrounds as “ white” 
or “ Negro” according to the racial character of the neigh­
borhood and, pursuant to this policy, six facilities will be 
changed from white to Negro use “ in the near future” 
(App. 78a-79a) and, accordingly, e.g., the racial ratio for 
community centers will be changed to 7 white and 4 Negro 
and that for swimming pools to 4 white and 6 Negro (App. 
80a, 81a); that plaintiffs and other Negroes attempted to 
enjoy or use certain white facilities and were refused ad­
mission thereto or ousted therefrom because of their race 
(App. 15a, 17a, 18a, 19a, 20a-21a, 23a, 26a, 28a, 29a, 30a, 
32a, 35a); and that, pursuant to instructions issued by the 
Park Commission with respect to Negroes who do not 
depart from a white facility when denied admission (App. 
88a-89a), agents or employees of the Park Commission 
have caused plaintiffs and others to be arrested (App. 
22a) or chased off by the police (App. 30a).

Evidence adduced at the trial tended also to support, 
as defendants pleaded in justification and the trial court 
invariably found (App. 107a, 108a-109a, 110a-113a), that 
the Park Commission recently removed the racial restric­
tions voluntarily, at three “ city-wide” facilities (Overton 
Park Zoo, the Art Gallery in Overton Park and the Mc- 
Kellar Lake Boat Dock) as a part of the Commission’s 
gradual desegregation plan (App. 47a, 50a); that the Com­
mission’s plan proposes to desegregate Fairgrounds Amuse­
ment Park, at the end of 1961 and, beginning in January, 
1962, to desegregate all seven public golf courses on a 
three year stair-step schedule (Def. Ex. 3; App. 47a-48a, 
50a, 51a); that the Commission plans to desegregate all 
public recreational facilities “ eventually” and does not 
have any idea when that will be done (App. 65a, 66a, 98a- 
99a); that the Commission’s stair-step plan for desegre­
gating the golf courses and Fairgrounds Amusement Park



4

was formulated after discussion with the Memphis Police 
authorities and a Negro minister (App. 54a, 65a, 75a, 
101a), study of nonsegregated golf courses and a zoo in 
Atlanta, Dallas, Nashville and New Orleans (App. 75a, 
92a-94a), consideration of the “peculiar” geographical 
location of the City and characteristics of the adjacent 
counties in Arkansas and Mississippi (App. 56a, 63a, 64a), 
discovery of a reverter clause in the conveyance of Pink 
Palace, conditioned on the use of the property by persons 
other than white people,2 and realization of the possibility 
of similar provisions in other grants of land for park 
purposes (App. 36a, 42a, 45a, 69a); that officers of the 
Park Commission and the local chief of police were of 
the opinion that any desegregation in public recreation, 
other than that covering golf courses and the Fairgrounds 
in the Commission’s three year stair-step plan, would 
produce turmoil, confusion and probably bloodshed in the 
City of Memphis (App. 49a, 54a, 74a, 102a).3

Upon the pleadings and evidence summarized above, the 
District Court on June 20, 1961, entered the judgment from 
which this appeal is taken (App. 118a, et seq.). Thereafter, 
on June 27, the Findings of Fact and Conclusions of Law 
were filed (App. 105a-117a), the meat of which is given in 
the following paragraph which the District Court cap­
tioned “ CONCLUSIONS OF FACT AND LAW ” (App. 
117a):

Defendants have shown by a preponderance of the 
evidence that additional time is necessary to accom­

2 Pink Palace Museum has been open to Negroes on a one-day- 
a-week basis (App. 20a-21a, 59a) without objection from the cor­
porate grantor or its successors (App. 58a, 59a-60a).

3 No racial confusion, turmoil or violence has occurred on the 
recreational facilities which are open to both races (App. 61a-62a, 
96a) and Memphis has not had the “ agitators” that have been in 
other places (App. 103a).



5

plish full desegregation of all facilities operated by 
the Memphis Park Commission, and defendants have 
further shown that their plan and program for gradual 
desegregation is necessary, in the public interest, and 
is consistent with good faith implementation of the 
governing constitutional principles as announced in 
Brown vs. Board of Education [349 U. S. 294 (1955)], 
taking into account all of the local conditions and 
problems hereinabove set out; and the Court has con­
cluded, in the exercise of its discretion, that the prayer 
for declaratory judgment and injunctive relief should 
be denied.

On this appeal, plaintiffs-appellants contend that sub­
stantial errors were made by the court below in :

1. Holding that plaintiffs are not entitled to the in­
junctive and declaratory relief prayed for in their com­
plaint; and 2 *

2. Holding that the decision in Brown v. Board of Educa­
tion, 349 U. S. 294 (1955), which contemplates allowing a 
delay in the desegregation of public elementary and second­
ary schools where certain conditions exist, is applicable in 
an action involving public recreational facilities.



6

ARGUMENT

I.

Whether, considering the facts established, as plain­
tiffs alleged and the District Court substantially found, 
that defendants-appellees maintain and operate a racially 
segregated public recreational system, plaintiffs are en­
titled to a permanent injunction and declaration as 
prayed for in their complaint.

The District Court answered “ No.”
Plaintiffs-appellants contend that the answer should 

be “ Yes.”

Under the record in this case there is beyond a doubt 
racial segregation decreed and enforced by defendants in 
their official capacity against plaintiffs and others sim­
ilarly situated, solely because of race or color, in the en­
joyment or use of recreational facilities maintained and 
operated by public funds. See Statement of Facts, supra, 
pp. 2-3. Neither defendants’ evidence nor the District 
Court’s findings gainsay this conclusion. The record, there­
fore, clearly establishes that plaintiffs and others in like 
situation in the City of Memphis have been deprived of their 
rights under the Fourteenth Amendment : this is now 
settled beyond legitimate debate.4

4 See, Sweeney v. City of Louisville, 102 F. Supp. 525 (W. D. Ky. 
1951), aff’d sub nom. Muir v. Louisville Park Theatrical Assn., 202 
F. 2d 275 (6th Cir. 1953), Vacated 347 U. S. 971 (1954) ; Lonesome 
V. Maxwell, 123 F. Supp. 193 (D. Md. 1954), rev’d sub nom. Dawson 
v. Mayor and City Council of Baltimore City, 220 F. 2d 386 (4th 
Cir. 1955), aff’d 350 U. S. 877 (1955) ; Holmes v. City of Atlanta, 
124 F. Supp. 290, aff’d 223 F. 2d 93 (5th Cir. 1955), rev’d 350 U. S. 
879 (1955); Tate v. Department of Conservation and Development, 
133 F. Supp. 53 (E. D. Va. 1955), aff’d 231 F. 2d 615 (4th Cir. 
1956), aff’d 352 U. S. 838 (1956) ; City of St. Petersburg v. Alsup,



7

Moreover, the public policy enforced by defendants in 
the use of public facilities cannot constitutionally be bot­
tomed on the existence of some facilities which are open 
to both races on a nonsegregated basis at the same time 
that other facilities are only open to Negro and white 
citizens on a segregated basis: this, too, is well-settled.5 
So, however blameless defendants believe they are, and 
however proper defendants may consider the present policy 
and the course laid before the District Court for the future, 
none of this can override the law on the subject.6

238 F. 2d 830 (5th Cir. 1956) ; Simkins v. City of Greensboro, 149 
F. Supp. 562 (M. D. N. C. 1957), aff’d 246 F. 2d 425 (4th Cir. 
1957) ; Moorhead v. City of Fort Lauderdale, 152 F. Supp. 131 
(S. D. Fla. 1957), aff’d 248 F. 2d 544 (5th Cir. 1957) ; Gilmore v. 
City of Montgomery, 176 F. Supp. 776 (M. D. Ala. 1959), aff’d 277 
F. 2d 364 (5th Cir. 1960); City of Miami v. Prymus, 288 F. 2d 465 
(5th Cir. 1961); Cummings v. City of Charleston, 288 F. 2d 817 
(4th Cir. 1961). See also Hayes v. Crutcher, 108 F. Supp. 582 
(M. D. Tenn. 1952), vacated 137 F. Supp. 853 (M. D. Tenn. 1956) ; 
Fayson v. Beard, 134 F. Supp. 379 (B. D. Tex. 1955) ; Holly v. 
City of Portsmouth, Va., 150 F. Supp. 6 (E. D. Va. 1957); Ward 
v. City of Miami, Fla., 151 F. Supp. 593 (S. D. Fla. 1957) ; Bailey 
v. Smith, Civ. No. W649, D. Kan., June 30, 1954; Hampton v. City 
of Jacksonville, Civ. No. 436-J, S. D. Fla., December 10, 1960.

5 Kelley v. Board of Education of City of Nashville, Civ. No. 2094, 
M. D. Tenn., Sept. 6. 1957 (2 Race Rel. L, Rep. 970, 973), 159 F. 
Supp. 272, 274, 278, 279 (M. D. Tenn. 1958), aff’d 270 F. 2d 209 
(6th Cir. 1959), cert, denied 361 U. S. 924 (1959); Jackson v. Mc­
Donald, Civ. No. 3172, E. D. Tex., July 30, 1956, appeal dism’d sub 
nom. Lamor State College of Technology v. Jackson, No. 16,443, 5th 
Cir., May 10, 1957; Shipp v. White, Civ. No. 2789, N. D. Tex., 
Feb. 11, 1960. See Nicholson, “ The Legal Standing of the South’s 
School Resistance Proposals,” 7 S. C. L. Q. 1, 59 (1954). Cf. 
Booker v. State of Tennessee Board of Education, 240 F. 2d 689 
692-693 (6th Cir. 1957).

6 This, indeed, was true with respect to public recreation when 
“ separate but equal” was not the rubric of a dead era. See, e.g., 
Lopez v. Seccombe, 71 F. Supp. 679 (S. D. Cal. 1944); Lawrence 
v. Hancock, 76 F. Supp. 1004 (S. D. W. Va. 1948) ; Draper v. City 
of St. Louis, 92 F. Supp. 546 (E. D. Mo. 1950), appeal dism’d 186 
F. 2d 307 (8th Cir. 1950) ; Harris v. Daytona Beach, 105 F. Supp.



8

Therefore plaintiffs say, as Judge Allen, speaking for 
this Court said in Clemons v. Board of Education of Hills­
boro, 228 F. 2d 853, at 857-858:

It follows that the judgment of the District Court 
is contrary to the rules of equity and constitutes an 
improvident exercise of judicial power. It is generally 
held that the trial court abuses its discretion when 
it fails or refuses properly to apply the law to con­
ceded or undisputed facts. Union Tool Co. v. Wilson, 
259 U. S. 107, 112, 42 S. Ct. 427, 66 L. Ed. 848. Mis­
application of the law to the facts is in itself an 
abuse of discretion. Hanover Star Milling Co. v. Allen 
& Wheeler Co., 7 Cir., 208 F. 513, 523. Such abuse of 
discretion requires reversal. Bowles v. Simon, 7 Cir., 
145 F. 2d 334. Here the allegations of the complaint 
were sufficient, the evidence was undisputed, and it 
was undisputed that defendants ignored the statutory 
and constitutional rights of these plaintiffs.

572 (S. D. Fla. 1952); Williams v. Kansas City, 104 F. Supp. 848 
(W. D. Mo. 1952), aff’d 205 F. 2d 47 (8th Cir. 1953), cert, denied 
346 U. S. 826 (1953). Cf. McLaurin v. Oklahoma State Regents, 339 
U. S. 637 (1950), involving a situation not without analogy in this 
context.



9

Whether the decision in the Second School Desegrega­
tion Case, Brown v. Board of Education, 349  U. S. 294  
(1 9 5 5 ) , which contemplates allowing a delay in the 
desegregation of public elementary and secondary 
schools, is applicable in an action involving public rec­
reational facilities.

The District Court answered “ Yes.”
Plaintiffs-appellants contend that the answer should 

be “ No.”

Faced with facts which spell segregation in the operation 
of the system of public recreation, defendants produced a 
plan for gradually desegregating the Fairgrounds Amuse­
ment Park and the seven public golf courses over a three 
year span, beginning at the end of 1961, and for “ even­
tually” desegregating all facilities at some unannounced 
times, apparently to be determined when the possibility of 
tumult or confusion ceases to exist7 and the legality of the 
reverter provision in the Pink Palace deed has been 
litigated.8 See Statement of Facts, supra, pp. 3-4. The

7 Violence and tumult, actual or imagined, have been advanced 
with equal vehemence in opposition to ending or delaying segre­
gation in housing, educational facilities and public recreation; but 
preservation of the public peace cannot be accomplished by state 
action which denies personal and present rights created or pro­
tected by the Federal Constitution. Buchanan v. Warley, 245 U. S. 
60, 81 (1917); Cooper v. Aaron, 358 U. S. 1, 16 (1958); Williams 
v. Kansas City, supra, n. 6, 104 F. Supp. at 852.

8 A similar provision has been held to be a valid determinable 
fee with a possibility of reverter in the grantor. Charlotte Park and 
Recreation Commission v. Barringer, 242 N. C. 311, 88 S. E. 2d 114 
(1955), cert, denied, sub nom. Beeper v. Charlotte Park and Recre­
ation Commission, 350 U. S. 983 (1956). However, thereafter, the 
Recreation Commission was “perpetually restrained and enjoined 
from depriving plaintiffs, or either of them, or other Negroes simi­
larly situated because of their race from the right and privilege of 
admission to and use of the Bonnie Brae Golf Course [which had

II.



10

plan and the considerations which underlie it were ap­
proved by the District Court, without modification save for 
submission of a proper plan for integration of playgrounds 
and community centers within six months (App. 120a). 
Plaintiffs contend that the law permits of no such delay 
in the protection of their constitutional rights to non- 
segregated public recreational facilities.

The District Court predicated approval of the plan, as 
amended, on the second decision in the School Segregation 
Cases, Brown v. Board of Education, 349 U. S. 294 (1955) 
(App. 114a, 115a, 116a, 117a), which condoned or contem­
plated delay only in connection with public elementary 
and secondary schools. To so apply that decision in a 
case which doesn’t involve such public elementary and 
secondary schools is not permissible.9 Florida ex rel. Haw­

been built on the lands affected by the reverter p r o v is io n ]Deeper 
v. Charlotte Park and Recreation Commission, Sup. Ct., 26 Jud. 
Dist., Mecklenburg Co., N. C., Feb. 4, 1957 (2 Race Rel. L. Rep. 
411-412).

9 True, there are cases in this Circuit and others which seem to 
look the other way. See Detroit Housing Commission v. Lewis, 226 
F. 2d 180, 184-185 (6th Cir. 1955); City of Montgomery v. Gilmore, 
277 F. 2d 364, 369-370 (5th Cir. I960) ; Cummings v. City of 
Charleston, 288 F. 2d 817 (4th Cir. 1961). But none in fact do, 
especially in view of the narrow domain of concrete facts in which 
the application or contemplation of gradual desegregation was 
made in each:

In the Detroit Housing case, this Court did not have the ad­
vantage of the later adjudications of the Supreme Court in Florida 
ex rel. Hawkins v. Board of Control, 350 U. S. 413, and Mayor and 
City Council of Baltimore v. Dawson, 350 U. S. 877, aff’g 220 F. 2d 
386 (4th Cir. 1955). Compare Booker v. State of Tennessee Board 
of Education, 240 F. 2d 689 (6th Cir. 1957). In the Montgomery 
Parks case, all the facilities had been closed pendente lite and a 
modification of the injunction entered below was directed merely to 
permit the District Court to consider a plan in the event that the 
City desired to reopen its already closed parks and playgrounds 
in the future on a nonsegregated basis. See Hampton v. City of 
Jacksonville, Civ. No. 436-J, S. D. Fla., December 10, 1960 (5 Race 
Rel. L. Rep. 1145, 1146). And in the Charleston Golf Course case, 
delay of two months in the effective date of the injunction was



11

kins v. Board of Control, 350 U. S. 413 (1956); Mayor 
and City Council of Baltimore v. Dawson, 350 U. S. 877 
(1955), aff’g 220 F. 2d 386 (4th Cir. 1955), which rev’d 
Lonesome v. Maxwell, 123 F. Supp. 193 (D. Md. 1954).

In Hawkins, supra, the Supreme Court specifically ruled 
that the second Brown decision could not be applied in 
litigation which doesn’t involve public elementary and 
secondary schools, saying at 350 U. S. 313, 314:

We directed that the case be reconsidered in the light 
of our [first] decision in the Segregation Cases decided 
May 17, 1954, Brown v. Board of Education, 347 U. S. 
483. . . .  In doing so, we did not imply that decrees 
involving graduate study present problems of public 
elementary and secondary schools. # * * Thus, our 
second decision in the Brown case, 349 U. S. 294, . . . 
which implemented the earlier one, had no application 
to a case involving a Negro applying for admission 
to a state law school. * * * As this case involves the 
admission of a Negro to a graduate professional school, 
there is no reason for delay.

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

Lest doubt linger as to the narrow confines of the second 
Brown decision, the Court’s affirmance in the Dawson case, 
supra, is most compelling here. Involved there were cer­
tain public recreational facilities maintained on a racially 
segregated basis by the State of Maryland as well as the 
City of Baltimore, both of which operated other such 
facilities on a nonsegregated basis. Moreover, the State

allowed only because “plaintiffs’ counsel had tendered to the Dis­
trict Court a suggested form of final order which contained the pro­
vision that the injunction should not be operative until six months 
following the date of entry of the order.” 288 F. 2d, supra at 818.



12

and City put squarely in issue the question presented here, 
arguing:

There is here involved not only a question of whether 
the State’s statutes should be denounced as violative 
of constitutional guarantees, but also the nature of 
the relief which should be granted. As this Court 
demonstrated by its approach in the School Segrega­
tion Cases, moderation and steady progress are more 
desirable than abrupt change which may redound only 
to the injury of citizens of both races. The issue has 
also been posed in this case whether, if this Court 
deems the School Segregation Cases applicable to pub­
lic recreation, the remedy should be immediate desegre­
gation or some other form of relief under the equity 
jurisdiction of the local courts, who are familiar with 
conditions as they exist in the State. We submit that 
no further authority to sustain the desirability of this 
sensible approach need be cited than this Court’s second 
opinion in the School Segregation Cases.10

This question was manifestly so unsubstantial that the 
Court did not require a plenary hearing thereon and af­
firmed the judgment below per curiam.

Therefore, plaintiffs submit that the District Court mis­
applied the principles articulated in the second Brown 
decision, 349 U. S. 294 (1955),11 for that decision and its 
proper application alike are plain.

10 Jurisdictional Statement, p. 19, Mayor and City Council of 
Baltimore v. Dawson, 350 U. S. 887 (No. 232, Oct. Term 1955).

u Logic as well as law requires limiting approval of delay to liti­
gation involving public elementary and secondary schools, for 
attendance in such schools is compulsory almost everywhere whereas 
no one is compelled to utilize public recreational facilities. Dawson 
v. Mayor and City Council of Baltimore, 220 F. 2d 386, 387 (4th 
Cir. 1955), aff’d 350 U. S. 877. See McKay, “ Segregation and 
Public Recreation” , 40 Va. L. Rev. 697, 724 (1954).



13

RELIEF

Under the foregoing circumstances, plaintiffs say that 
they are entitled to a declaration vindicating their con­
stitutional rights to be admitted to those recreational facil­
ities from which they are nowT barred because of their 
race or color; that they are entitled to an order setting 
aside the postponement of their relief pursuant to the 
gradual desegregation plan of the Park Commission of 
the City of Memphis; and that they are entitled to a fur­
ther order requiring their admission to the facilities main­
tained and operated by the Commission, subject only to the 
same rules and regulations applicable to all other persons 
without delay.

W herefore, fo r  the reasons hereinbefore set forth , it 
is respectfully submitted that the judgm ent o f  the court 
below should be reversed with directions to grant the above 
requested relief.

A. W . W illis, J r.
588 Vance Avenue 
Memphis, Tennessee

C onstance B aker M otley 
T hurgood M arshall 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiff s-Appellants

E lwood H. Chisolm

B. L. H ooks

C. 0 . H orton 
B. F. J ones 
H. T. L ockard

R. B. Sugarmon, Jr.

Of Counsel



33