Evans v. Newton Brief Amicus Curiae

    No. 61

Jin the Supreme tyomt of the ilratti states
October T erm, 1965

E. S. E yAJSTS, ET Ah . ,  PETITIONERS 
V .

Charles E. Newton, et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

BEIEF EOE THE UNITED STATES AS AMICUS CUEIAE

TK U RG O G D
Solicitor General,

JO H N  D O A R ,
Assistant Attorney General,

R A L P H  S. S P R IT Z E R ,
P A U L  B E N D E R ,
R IC H A R D  A . PO SN ER,

Assistants to the Solicitor General,
D A V ID  R U B IN ,
JA M E S  L. K E L L E Y ,
P A U L  S. A D L E R ,

Attorneys,
Department of Justice, 

Washington, D.C., 20530.



I N D E X

Page
Opinion below__ ____      1
Jurisdiction____________________________________    i
Question presented____________ ....__________ ____________ ; \ 2
Interest of the United States___________________________________2
Statement____________________________________________■___ 3
Argument:

Introduction and summary________■_________________  7
Viewed in their totality, the factors which establish 

that Baconsfield serves a public function and that 
the State is significantly involved in the history and 
conduct of its operations require the conclusion that 
the Fourteenth Amendment applies_______________  10

1. State paternity and superintendence_________  12
2. State support and maintenance_  ____________ 15
3. The public character of the park_____________  16
4. Irhpact upon racial minorities________________  20
5. State involvement in the decision to discrimi­

nate___________________________   23
6. The effect upon private choice__ ____________  . 26

Conclusion__________________________ ____ ____________ . 29

CITATIONS
Cases:

B alivnny. Morgan, 287 F. 2d 750_,____i________12*16, 17
Barrows v. Jackson, 346 U.S. 249_________________ 17, 29
Bell v. Maryland, 378 U.S. 226___________ ______ 10, 17, 21
Boman v. Birmingham Transit Co., 280 F. 2d 531 _ _ _ _ 12, 17 
Brotherhood of Railroad Trainmen v. Howard, 343 U.S.

768________i.________________________________ _____  12
Buchanan v. Warley, 245 U.S. 60___________________  21
Burton v. Wilmington Parking Authority, 365 U.S.

715_______________ ________________ _ 9, 10, 14, 20, 24, 26
Civil Rights Cases, 109 U.S, 3----------- -----------10, 11, 26

; Coke v, City of Atlanta, 184 F. Supp. 579:____________ 20
d>787-479—88— 1



Gases—Continued prm
Cooper v. Aaron, 358 U.S. 4 _ - - - - - ~ - - —  ̂ . 15
Cox y. DeJarnette, 104 Ga. App. 604----- --------------------  14
Gumming v. Trustees of Reid Memorial Church, 64 Ga,

105____________________________________________________25
Department of Conservation <fe ;Development v, Tate,

: 231 F. 2d 615----- - - - - - - - - — 20
Derrington v. Plummer■, 240 F. 2d 922, certiorari denied,

353 U.S. 924_____________ .--------- - -------- 20
Doming, y  , Stanley , 162 Ga, 211— . W- — 25
Duffee y. Jones, 208 Ga. 639— -----------  25
Eaton v. Grubbs, 329 F. 2d 710. _— 11* 43, 15 
Freeman v. Retail Clerks Local 1207, 28 U.S. Law Wk.

2311 (Kings County Super. Ct., Washington,
decided December 9, 1959),- _ ---------------------  - 1~

Girard College Trusteeship, 391 Pa. 434-------     H
Gomillion v. Lightfogt, 364 U.S, 339------ , ----- -------------  26
Greenway v. Irvin’s Trustee, 279 Ky. 632-------------- —  25
Griffin v. Maryland, 378 U.S. 130........ ....... .............. -  - 7
Griffin v. School Board, 377 U.S. 218------------------------- 26, 29
Guillory v. Administrators of Tulane University, 203 F.

Supp. 855----------------------- - - - - - —  7, 15, 17
Guillory v. Administrators of Tulane University,

212 F. Supp. 674_______________ ______ ___________ 29
Harris v. Brown, 124 Ga. 3 1 0 , -------  25
Jones y. Marva Theatres, Inc., 180 F. Supp. 49----------  20
Kerr v. Enoch Pratt Free Library, 149 1 .2d  212— - - -  15
Lawrence v. Hancock, 76 F. Supp. 1004__--------— — •• 20
Leeds v. Harrison, 15 N.J. Super. 8 2 . ------------------ —  25
Lombard v. Louisiana, 373 U.S. 267— ------------—  10, 23, 24
Marsh v. Alabama, 326 U.S. 501„--------------------   10, W, 19
Morehouse College v. Russell, 219 Ga. 717. ------------—  14
M uir y. Louisville Park Theatrical Ass’n. 347 U.S. 971,

reversing 202 F. 2d 275------- , 4 20
Nash y. A ir Terminal Services, 85 F. Supp. 5 4 5 - . 2 0  
National Labor Relations Board v. Lake Superior

Lumber Carp,, 167 F. 2d 147----------17
National Labor Relations Board v. Stowe Spinning

Co., 336 U.S. 226------------------ - --------------------------- ---   ̂ 17
Nixon y. Condon, 286 U.S. 73------------------------------- —  17,48
Pace y. Dukes, 205 Ga. 8 3 5 - - - - - - - -— ------- - - - - -  ^

IX.



Gases—Continued '‘Page
Pennsylvania v. Board of Trusts, S53 tJ.S,-230L- >  7

10, 11, 12, 20, 24
Pennsylvania v. Board o f Trusts, 357 U.’S. 570 j _ „ : "v 11
Peterson v. Greenville, 373 U.S. 2 4 4 . ____________C_.' 10, 23
Public Utilities Com,m’n v. Pollack, 343 U.S. 4-51.. 10, 12, 17 
Railway Employes’ Dept. v. Hanson, 351 U.S. 2 2 5 . . . .  10, 12 
Regents of University System y. Trust OS', of Georgia,

186 Ga. 498___________________________ i , _____ 14
Republic Amotion Corp. y. National Labor Relations

Board, 324 U.S. 7 9 3 .._____C j . - . . . C  17
Rice y. Elmore, 165 F. 2d 387 ..1 .. J--.-U._t ■. A 17
Robinson V. Florida, 378 U.S. 153: C . _ J_ . .  __ _ _ _j _ , i 23 
Shelley v. Kraemer, 334 U.S. 1. . . . . . . . .  10, 17, 21,22, 25. 26
Silcox y. Harper, 32 Ga. 639___ . . - . . . . I . . . . 25
Simians v. Moses H. Cone Memorial Hospital, 323 F,

2d 929, certiorari denied, 376 U.S. 958_±:. . . 13 15
Smith v. Attwrigkt, 321 U.S. 1 4 9 . ..10' 17
Smith v. Holiday Inns of America, Inc. , 220 F. Supp. l l  > 20 
Steele v. Louisville & N. R. Co., 323 U.S. 1 9 2 . . . . . . . . .  R) 12
Stubbs y. City of Macon, 78 Ga. App. 237.....................  ■■■•:,’ ig
Terry y. Adams, 345 U.S. 461___________ _ _ _ 10, 17

Constitution and statutes:
U.S. Constitution: " v::

Fourteenth Amendment.   _______ - 1j ____ 2

4, 5, 7, 8, 9, 10, 11, 13, 15, 23, 26, 27, 28 
Fifteenth Amendment._____. 1 . 1 7

Civil Rights Act of 1964, 78 Stat. 241, et sef.
§ 201(b)(l)-(4 )___________ __________

Pa. Stat. Ann., Tit. 18, § 4654.___
Georgia Code Ann.:

§ 69-504_______...____________ ____ _ __
§ 6 9 -5 0 5 -.- .. . . . . . _____________ ____
§ 69-602__________________
§ 92-201______     C
§ 108-201.._______ ____________ .
§ 108-202____________ ________________
§ 108-206-09... ______ _______ ________
§ 108-212 (1963 Supp.)____________

Miscellaneous:

:-----i 12
------ 1 12

13, 14,23, 24 
23

- C 18
------•- 15

13
- — 6
------- • 14
-------  13

10 McQuillin, Municipal Corporations (3d e d ) 
§ 28.51__________________________________ . . . 18



j n  tte ^ujjwntc afoiirt of the Suited pistes
October T erm, 1965

No. 61

B. S. E vans, et al., petitioners 
v.

Charles E. Newton, et al.

OS WRIT OF CERTIORARI TO TEE SUPREME COURT OF GEORGIA

BRIEF for the united states as amicus curiae

O P IN IO N  BELO W

The order and decree of the Superior Court of 
Bibb County (R. 64-66) are not reported. The 
opinion of the Supreme Court of Georgia (R. 81-88) 
is reported at 220 Ga. 280, 138 S.E. 2d 573.

JU R ISD IC T IO N

The judgment of the Supreme Court of Georgia 
was entered on September 28, 1964 (R. 89). Re­
hearing was denied on October 8, 1964 (R. 92). By 
order of December 22, 1964, Mr. Justice Stewart ex­
tended the time for filing a petition for a writ of cer­
tiorari to and including March 5, 1965 (R. 93). The 
petition was filed on that date, and granted on April 26, 
1965 (R. 94; 380 U.S. 971). The jurisdiction of this 
Court rests on 28 U.S.C. 1257 (3).

(i)



2
QUESTION PRESENTED

Baconsfield is a , large park and recreation area 
established for the use oi' all white persons of the 
City of Macon, Georgia, under a charitable trust 
which originally (in 1911) designated the City as 
trustee. In 1963, the City managers of Baconsfield 
brought the present suit in a State court to have 
private trustees designated in place, o f the City. 
The purpose was to permit Baconsfield to continue 
operation as a facility for whites only. In the course 
of the action, the City resigned as trustee and the 
court appointed private trustees.

The question presented is whether Baconsfield, 
viewed in the light of its history and taking into 
account its public role in the community, the public 
incidents and effects of its operation and the exten­
sive character of the,State’s involvement in its estab­
lishment and administration, is to be regarded as a 
public institution subject to the requirement of the 
Fourteenth Amendment that its use not be denied 
to Negroes on the basis of their race.

IN T E R E S T  OP T H E  U N IT E D  ST A TE S

The denial of equal opportunities to this country’s 
Negro citizens is a matter of utmost national concern. 
The present case—involving the question whether 
racial discrimination in the administration of a char­
itable trust established to fulfill an important public 
purpose is beyond the reach of the Equal Protection 
Clause—has far-reaching implications. We deem 
it appropriate, therefore, to submit the views of the 
United States.



S T A T E M E N T

In 1911, United States Senator Augustus O. Bacon 
executed a will granting a life estate, in trust, in 
certain designated real property known as “ Bacons- 
field”  for the benefit of his wife and two named 
daughters (R. 12, 18-19). Senator Bacon’s will 
further provided that upon the death of the last sur­
viving beneficiary, the Baconsfield property, including 
alh remainders and reversions,

shall thereupon vest in and belong to the Mayor 
and Council of the City o f Macon, and to their 
successors forever, in trust for the sole, per­
petual and unending, use, benefit and enjoy­
ment of the white women, white girls, white 
boys and white children of the City of Macon 
to be by them forever used and enjoyed as a 
park and jdeasure ground, subject to the re­
strictions, government, management, rules and 
control

of a Board of Managers of seven persons, at least 
four to be women and all seven to be white (R. 19). 
The Board, to be appointed by the Mayor and City 
Council, was given discretion to open the park to 
white men and white non-residents of Macon (R. 19- 
20), and this power has been exercised (R. 7-8). To 
provide for maintenance of the park, income from 
other described real property was to be expended by 
the Board of Managers (R. 20). Senator Bacon stated 
in his will that he was providing for a park exclu­
sively for whites because he disapproved of the social 
mixing of the white and ISTegro races (R. 21).

3



4

This suit was brought on May 4, 1963, in the Supe­
rior Court of Bibb County, Georgia, by the individual 
members of the Board of Managers of Baconsfield, in 
their capacities as members of the Board, against the 
City o f Macon and the trustees of certain residuary 
beneficiaries of Senator Bacon’s estate (R. 5-10), 
Its purpose was to enforce the racial limitations in 
the will. It was alleged that the City was “ failing 
and refusing to carry out and enforce the provisions 
of said Will with respect to the exclusive use” of the 
parfi by white persons (R, 8). The plaintiffs asked 
that the City be removed as trustee, that the court ap­
point new trustees and that the legal title to “ Bacons- 
field” and any other assets held by the City of Macon 
as trustee under Senator Bacon’s will be vested in the 
trustees so appointed (R. 9).

The City’s answer alleged that it could not legally 
enforce racial segregation in the park and asked that 
the court construe the will and enter a decree setting 
forth its duties and obligations as trustee (R. 32-34). 
The other defendants admitted the allegations and re­
quested the removal of the City as trustee (R. 34—35).

On May 29, 1963, six Negro citizens of the City of 
Macon moved for leave to file a petition for interven­
tion on behalf of themselves and other Negroes sim­
ilarly situated (R. 36). In their petition, filed on 
June 18, 1963, they asserted that the racial limitation 
was contrary to the public policy of the United States 
and the laws of Georgia and that the Superior Court, 
as an agency of the State of Georgia, could not, con­
sistently with the Equal Protection Clause of the



Fourteenth Amendment, enter an order appointing 
private citizens as trustees for the purpose of regulat­
ing public property in a racially discriminatory man­
ner (R. 40). They asked the court to effectuate the 
general charitable purpose of the testator to establish 
and endow a public park by refusing to appoint 
private trustees (R. 41-42) .1

On February 5, 1964, the City filed an amendment 
to its answer alleging that, pursuant to a resolution 
adopted by the Mayor and City Council on February 
4, 1964, the City had resigned as trustee. The City 
asked that its resignation be accepted and substitute 
trustees be appointed (R. 50-51). The Negro inter- 
venors subsequently amended their petition, alleging 
that the Fourteenth Amendment would be violated if 
the relief sought by the parties was granted (R. 
62-63).

1 On January 8, 1964, the plaintiff members of the Board of 
Managers filed an amendment to their original petition, re­
questing (1) that Negroes be enjoined from using the park, (2) 
that four previously unrepresented residuary legatees under 
Senator Bacon’s will (the Sparks heirs) be added as plaintiffs, 
and (3) that the trustees o f the Curry heirs, originally joined 
as defendants, be permitted to assert the interests o f the Curry 
heirs as plaintiffs (E. 42-45). At the same time, the Sparks 
heirs intervened, the trustees for the Curry heirs sought leave 
to assert their interests as plaintiffs, and both parties joined in 
the original plaintiffs’ prayers for relief (E. 45-49). Addi­
tionally, the Sparks heirs and the trustees for the Curry heirs 
asked for reversion of the trust property to the Bacon estate 
in the event that other relief was denied (E. 47, 49). In the 
decree of the Superior Court, no ruling was made on the 
requests that Negroes be enjoined from using the park and 
the conditional prayers for reversion of the trust property 
were held to be moot (E. 65).

787—479—65----2



6

The Superior Court of Bib!) County issued a decree 
on March 10, 1964, which, inter alia, (1) allowed in­
tervention by the Negro interveners, (2) accepted 
the resignation of the City of Macon as trustee of 
the park, and (3) appointed three individuals as new 
trustees (R. 64-66). The relief souglit, by the Negro 
interveners was denied. Subsequently, all seven of the 
City-appointed members of the Board of Managers of 
“ Baeonsfield”  submitted their resignations to the three 
new court-appointed trustees. The latter then reap­
pointed three of the old Board members and appointed 
four new members (R. 70-72).

On appeal by t he Negro intervenors, the Supreme 
Court of Georgia affirmed. It held that “ A. O. 
Bacon had the absolute right to give and bequeath 
property to a [racially] limited class”  (R. 87); that 
charitable trusts are subject to the supervision of the 
courts (Ga. Code Ann. § 108-202) ; and that, since the 
City had resigned as trustee, the Superior Court was 
authorized to appoint private trustees in its place 
(R. 86) .2

The record does not disclose the physical charac­
teristics of Baeonsfield. We have therefore attached 
at the end of our brief a recent map of the City of 
Macon. It is apparent from the map that Baeonsfield

2 The Supreme Court held further that, assuming the inter­
venors' could properly raise the issue of cy-pres, the Superior 
Court had not erred in refusing to apply the doctrine to this 
case. The court said that “the facts * * * w6re wholly in­
sufficient to invoke a ruling that the charitable bequest was or 
was not incapable for some reason o f exact execution in the 
exact manner provided by the testator” (R. 87).



7'

is one of Macon’s largest parks, artel its size can be 
estimated as about 100 acres. It is centrally located, on 
the banks of the Oemulgee River, and is traversed by a 
major interstate highway (Route 16) as well as by 
several streets which connect with the public streets 
abutting the park.

A R G U M E N T

Introduction and Summary

For many years the City of Macon and its Board 
of Managers served as trustee and administrator of 
Baconsfield. During that period, Baeonsfield was, in 
every practical sense, a City park, and, until recently, 
the City entirely excluded Negroes from the park un­
der the terms of the trust, while freely admitting all 
white persons who desired to use the park. In thus 
operating Baconsfield as a park solely for the use of 
white persons, the City clearly was violating the Four­
teenth Amendment. It made no difference that the 
park was not owned outright by the City, but was 
merely administered by it under a trust containing a 
racial exclusion. See Pennsylvania v. .Board of 
Trusts, 353 U.S. 230 (the Girard Trust case) ; cf. Guil­
lory v. Administrators of Tulane University, 203 F. 
Supp. 855 (K B . La). The Fourteenth Amendment 
forbids a State to undertake “ an obligation to en­
force a private policy of racial discrimination”  ( Grif- 
jin v. Maryland, 378 U.S. 130, 136).

Shortly before this suit was instituted, the City of 
Macon began to permit Negroes to. use Baconsfield. 
The explicit purpose of the present suit was. to reverse 
that course of action and restore Baconsfield as a segre­



8

gated facility. The suit was brought in a State 
court by the members of the Baconsfield Board of 
Managers against the City and certain heirs of Sena­
tor Bacon. The plaintiffs alleged, as a basis for 
relief, that the City was ‘ Tailing and refusing to 
carry out and enforce the provisions of said Will 
[of Senator Bacon] with respect to the exclusive 
use” of Baconsfield park by white persons (R. 8). 
The court; was asked to appoint new trustees who would 
be obligated to exclude Negroes from the park. Six 
Negro citizens of Macon, who were permitted to inter­
vene in the litigation, urged that the requested relief 
be denied under principles of State and federal law.

While the suit was pending, the Mayor and Coun­
cil of Macon resigned as trustees of Baconsfield. 
Thereafter, the court entered an order accepting their 
resignation and appointing three new trustees to oper­
ate Baconsfield on a segregated basis. The new 
trustees appointed a new Board of Managers which 
included three members of the old board appointed by 
the city. On appeal to the Supreme Court of Georgia 
by the Negro intervenors, the lower court’s order was 
affirmed.

The basic question thus raised in this Court is 
whether it is consistent with the Fourteenth Amend­
ment for Baconsfield to be operated by the newly ap­
pointed trustees as a facility exclusively for white per­
sons. In rejecting the intervenors’ contentions below, 
both Georgia courts have expressly held that Baeons- 
field may be so operated.

The Fourteenth Amendment, in providing that 
“ [n]o State shall * * * deny to any person within



9

its jurisdiction the equal protection of the laws” , 
reaches every form of State-sponsored inequality. 
The question presented, therefore, cannot be resolved 
in favor of permitting Baconsfield to remain exclu­
sively a white facility merely by noting that formal 
legal title to the park has now been transferred by 
the Georgia courts to trustees who are not members 
of the City government. As this Court has recog­
nized on a number of occasions, formally ' ‘ private” 
conduct may sufficiently assume the character of gov­
ernmental action or may become so entwined with 
or dependent upon governmental actions or policies 
as to become subject to the constitutional limitations 
placed upon State action.3 It is our position in this 
case that Baconsfield has thus become a public facility 
subject to the Fourteenth Amendment, despite the 
formal transfer of title and control to private trus­
tees; the Georgia courts therefore erred in deciding 
that Baconsfield may be operated for the benefit of all 
the white citizens of Macon while Negroes are excluded.

We base our judgment upon the totality of relevant 
facts and circumstances bearing on the degree of 
State involvement, mindful of this Court’s warning 
against attempting to formulate fixed rules or me­
chanical tests to measure State action in areas of 
mixed public action and private responsibility (Bur­
ton v. Wilmington Parking Authority, 365 U.S. 715, 
722). Proceeding under this approach, we show that 
the facts and circumstances of this case demonstrate

3 See cases cited at nn. 4 to 6, infra, pp. 10-11.



10

“ State action of a parteiular character that is pro­
hibited”  ( Civil Rights Cases, 109. IT.S, 3, 11).

VIEWED I X THEIR TOTALITY, THE FACTORS WHICH ESTAB­
LISH THAT BACONSFIELD SERVES A PUBLIC FUNCTION 
AND THAT THE STATE IS SIGNIFICANTLY INVOLVED IN 
THE HISTORY AND CONDUCT OF ITS OPERATIONS REQUIRE 
THE CONCLUSION THAT THE FOURTEENTH AMENDMENT 
APPLIES

In attempting to determine the point at which State 
involvement in an activity conducted by private per­
sons gives the activity sufficient governmental char­
acter to bring a discriminatory practice within the ban 
of the Fourteenth Amendment, we look to six major 
factors which this Court has deemed relevant to such 
an inquiry: (1) the degree of State paternity and 
superintendence afforded the discriminating enter­
prise ; 4 (2) the extent of direct State support and 
maintenance of the activity;5 (3) the public character 
of the discriminating enterprise;6 (4) the impact of 
the discrimination upon the affected minorities;7 (5) 
the extent of State participation in, or encouragement 
of, the decision to discriminate;8 and (6) the absence 
of a significant interest in private determination in

4 See, Railway Employes’ Dept. v. Hanson, 351 U.S. 225; 
Steele v. Louisville <& N. R. Go., 323 U.S. 192; Public Utilities 
C'omm'n v. Poliak, 343 U.S. 451.

r> See Burton v. Wilmington Parking Authority, supra; Penn­
sylvania v. Board o f Trusts, supra.

16 See Smith v. AUwright, 321 I7.S. 149; Terry v. Adams, 345 
U.S. 461; Marsh v. Alabama, 326 U.S. 501.

7 See Shelley v. Kraemer, 334 U.S. 1; Bell v. Maryland, 378 
U.S. 226, 329 (dissenting;opinion). '

* See Peterson v. Greenville., 373 U.S. 244; Lombard v. Louisi­
ana, 373 U.S. 267.



11

the management of the enterprise.9 We suggest below 
that all of these elements are involved to a substantial 
degree in Baeonsfield. There is thus no need to decide 
in this case whether any single one of them would, if 
present in sufficient strength, require a finding that 
the State is responsible for racial discrimination ir­
respective of the remaining considerations. The 
totality of circumstances showing the State’s close 
participation in the establishment and administration 
of Baeonsfield, as well as the public role which the 
park plays in the community, compels the conclusion 
that the Fourteenth Amendment forbids the present 
and any future trustees or operators of the park in its 
present form to exclude any person on account of his 
race. Of. Eaton v. Grubbs, 329 F. 2d 710 (C.A. 4).10

0 Cf. Civil Bights Cases, supra.
10 The question whether racial discrimination by the private 

trustees of Baeonsfield is forbidden by the Fourteenth Amend­
ment is fully ripe for decision by this Court in this case—as 
may not have been true in the second Girard Trust case {Penn­
sylvania v. Board of Trusts, 357 IJ.S. 570). A fter this Court 
-held in its first decision (Pennsylvania 'v. Board o f Trusts, 353 
U.S. 230) that the City o f Philadelphia could not, as trustee 
o f Girard College, exclude Negroes as directed in the trust 
instrument, the State court appointed private trustees to re­
place the city. See Girard College Trusteeship, 391 Pa. 434, 
138 A.2d 844. The Negro plaintiffs again appealed to this 
Court; but this time the Court, without opinion, dismissed the 
appeal and, treating the appeal as a petition for a writ of 
certiorari, denied certiorari. The reason for the Court’s action 
in declining to review the State court’s decision can only be con­
jectured. The Court’s disposition, however, was not on the 
merits. The dismissal o f the apefkl, as in the first case, was 
evidently for want of jurisdiction (see Pennsylvania v. Board, 
of Trusts, 353 U.S. 230); and denial o f certiorari, o f  course-, im­
ports no view o f the merits. The explanation o f the Court’s



12

1. State Paternity and Superintendence.—A union 
shop agreement between a labor union and an em­
ployer-—both private entities—is subject to constitu­
tional scrutiny where federal law authorizes the mak­
ing of such agreements. Railway Employes’ Dept. v. 
Hanson, 351 U.S. 225, 231-232. Likewise, a union is 
forbidden to exclude Negroes where its authority to 
act as exclusive bargaining agent derives from fed­
eral law. Steele v. Louisville & N. R. Co., 323 U.S.. 
192; Brotherhood of Railroad Trainmen v. Howard, 
343 U.S. 768. The constitutional duty of equal treat­
ment regardless of race has also been imposed on pri­
vately owned transportation companies operating 
under an exclusive franchise granted and closely regu­
lated by the State (Public Utilities Comm’n v. Pol­
iak, 343 U.S. 451; Baldwin v. Morgan, 287 F. 2d 750 
(C.A. 5) ; Bomcm v. Birmingham Transit Go., 280 P. 
2d 531 (C.A. 5 )), and upon privately owned hospitals

action may lie in the fact that, in view of a State antidiscrimi­
nation enactment seemingly applicable to the private trustees o f  
Girard College (Pa. Stat. Ann., Tit. 18, § 4654, expressly for­
bidding racial discrimination bj? schools), it was not clear that 
the private trustees would or could operate Girard on a segre­
gated basis. I t  was therefore premature to complain that the 
appointment o f the private trustees rrould perpetuate racial 
segregation. But it is entirely clear that the private trustees 
of Baconsfield will continue to operate the park on a segregated 
basis. The State courts have said they must, and there is no 
applicable federal law requiring them to admit Negroes. (The 
public accommodations provisions o f the Civil Bights Act of 
1964, 78 Stat. 241 et seq., do not cover parks. See § 201(b) 
( l ) - ( 4 ) . )  It is thus indisputable here, as it may not have been 
in the Girard Trust case, that the effect under State law of the 
State’s action in procuring the appointment of private trustees 
will be to compel adherence to the racial limitation of the trust.



13

operating under comprehensive State plans to provide 
medical facilities for the State’s citizens (.Simkins v. 
Moses E . Cone Memorial Hospital,, 323 F. 2d 959 
(C.A. 4), certiorari denied, 376 TT.S. 938; Eaton v. 
Grubbs, 329 F. 2d 710 (C.A. 4 )).

The primary rationale of such decisions in that the 
State may become so intimately involved in the creation 
and regulation of an enterprise as to make it (though 
privately owned) an agent of the State. Such an. 
enterprise—in reality the State’s creature—is not 
permitted to avoid the restrictions placed by the 
Fourteenth Amendment upon State action; nor should 
persons be compelled to suffer discrimination because 
governmental ends are thus achieved through nom­
inally private arrangements.

The charitable trust in general, and the charitable 
trust for park purposes in particular, are, in Georgia 
as well, as other States, a form of “private”  enter­
prise bearing substantial indicia of State paternity 
and superintendence. In Georgia, the type of trust 
created by Senator Bacon-—establishing a park to lie 
operated by a municipality—is expressly authorized 
by statute (Ga. Code Ann. §69-504). Georgia law 
additionally provides for the enforcement of chari­
table trusts in equity (Ga. Code Ann. § 108-201) and 
specially empowers the State Attorney General to 
enforce them (Ga. Code Ann. § 108-212 (1963
Supp.)); further, as this case shows, equity courts 
are empowered to appoint new trustees to prevent a 
charitable trust from failing. Georgia law also pro­
vides favorable rules of construction designed to up-

-'3787-479—61



14

hold the validity of an attempted charitable trust 
(Ga. Code Ann, § 108-206-09), waives the Rule 
Against Perpetuities (Ga. Code Ann. § 69-504; see 
Regents of University System v. Trust Go. of Geor­
gia, 186 Ga. 498, 198 S.E. 345; Pace v. Dukes, 205 Ga. 
835, 55 S.E. 2d 367), and grants immunity for negli­
gent torts (Morehouse College v. Russell, 219 Ga. 717, 
135 S.E. 2d 432; Cox v. DeJarnette, 104 Ga. App. 604, 
123 S.E. 2d 16).

These special privileges (and others, see, e.g., p. 15, 
infra) undoubtedly derive in large part from the fact 
that, like a municipal transit system, or a labor union 
having broad statutory powers, or a private hospital 
operating under a comprehensive State health plan, a 
charitable trust is typically engaged in activity in 
which there is a high degree of public interest. Since 
health, recreation, and education are among the cen­
tral responsibilities of the States to their citizens, the 
charity hospital, the charitable park (like Baeons- 
field), charitable museums and libraries, and non­
profit private schools act for the State in the pursu­
ance of public goals.11 The State fosters private insti­
tutions of this kind, providing; them with special priv­
ileges and benefits, because without such institutions 
the direct obligations of the State to provide for the 
welfare of its citizens would be expanded. Such spon­
sorship is a form of “ interdependence”  between the 
public and the private sectors and creates a pattern 
of “benefits mutually conferred”' (Burton v. Wil- 11

11 Sometimes in areas, like sectarian education, which the 
.States are constitutionally barred from entering.



15

mington Parking Authority, 365 U.S. 715, 724-725). 
The State grants the charity special advantages to 
encourage it to assume public responsibilities. The 
private charity in turn assumes an essentially public 
function which the State might otherwise have to per­
form directly, and thereby acquires substantial attri­
butes of a public rather than a private institution.

2. State Support and Maintenance—  This Court has 
said that affirmative “ State support of segregated 
* * * [activity] through any arrangement^, manage­
ment, funds, or property cannot be squared with the 
[Fourteenth] Amendment’s command”  (Cooper v. 
Aaron, 358 U.S. 1, 19). In this case, the State is sig­
nificantly involved in the support of Baconsfield 
within the sense of this doctrine.

First, it grants Baconsfield, in common with other 
charitable trusts, exemption from taxation (see Ga. 
Code Ann. § 92-201), thus affording it appreciable 
financial assistance difficult to distinguish from an 
outright subsidy. “ Tax exemption may attain sig­
nificance when viewed in combination with other at­
tendant state involvements.”  Eaton v. Grubbs, 329 
F. 2d 710, 713 (C.A. 4) ; see Kerr v. Enoch Pratt Free 
Library, 149 F. 2d 212 (C. A. 4) ; Simkins v. Moses H, 
Cone Memorial Hospital, supra; Guillory v. Adminis­
trators of Tulane University, 203 F. Supp. 855, 863 
(E.D. La.).

Second, the State has chosen and appointed the 
trustees who govern Baconsfield and these trustees 
are, in turn, answerable to the State court which ap­



16

pointed them and which exercises a continuing super­
visory authority over the administration of the trust.

Third, for many years the City itself was the trus­
tee. The Baeonsfield of today is thus a product in 
substantial measure of actions taken and decisions 
made during the City’s direct custodianship. In addi­
tion, three of the City’s former park managers are 
members of the new Board of Managers designated by 
the court-appointed trustees. The close support and 
supervision which the City has provided have not been 
dissipated.

The State, in short, has not only encouraged the 
creation of Baeonsfield to serve a public purpose, but 
to that end it has lent and continues to lend significant 
financial support and administrative supervision to the 
park.

3. The Public Character of the Park.—Even with­
out the kind of State support and sponsorship dis­
cussed in sections (1) and (2) above, a private person 
or group permitted by the State to perform a func­
tion normally performed largely by government oc­
cupies a position comparable to that of a formal 
agency of the State.12 Hence, the exercise of consti­
tutionally protected rights on the public streets of a 
town may not lie denied by a private company that 
owns the town and its streets; a State is not justified 
in “ permitting a corporation to govern a community 
of citizens so as to restrict their fundamental liber­

12 “When private individuals or groups are endowed by the 
State with powers or functions governmental in nature they 
become instruments of the State and subject to the same con­
stitutional limitations as the State itself.” Baldwin v. Morgan, 
supra.; at 755, n. 9.



17

ties”  (Marsh- v. Alabama, 326 U.S. 501, 509). I f  the 
State delegates an aspect of the elective process to- 
the control of private groups, those groups become 
subject to the Fifteenth Amendment. Terry v. Ad­
ams, 345 U.S. 461; Smith v. AUwright, 321 U.S. 149; 
Nixon v. Condon, 286 U.S. 73; Bice v. Elmore, 165 
F. 2d 387 (C.A. 4). Similarly, where private real 
estate developers are permitted to impose systems of 
restrictive covenants, which have substantially the 
same effects as municipal zoning regulations, the State 
courts are forbidden to enforce racial restrictions con­
tained in such covenants. Shelley v. Kraemer, 334 
U.S. 1; Barrows v. Jackson, 346 U.S. 249; see Bell v. 
Maryland, 378 U.S. 226, 329 (dissenting opinion).13

Baeonsfield is not an entire “ private” community 
as in Marsh v. Alabama, or a large residential subdi­
vision as in Shelley v. Kraemer. Nor is the public 
recreational function it serves as vital to the purposes 
of State government as the “ private” elective process 
involved in Terry v. Adams, Smith v. Allwright, and

13 The principle of the Marsh case lias been applied in a 
variety of additional contexts: union activity on private com­
pany property (Republic, Aviation Gory. v. National Labor Re­
lations Board, 824 U.S. 793; National Labor Relations Board v. 
Stowe Spinning Go., 386 U.S. 2-26; National Lai or Relations 
Board v. Labe Superior Lumber- Gory., 167 F. 2d 147 (C.A. 
6 ) ) ;  private colleges ( Guillory v. Administrators o f Tvlane. 
University, 203 F. Supp. 855, 859 (E.D. La. ) ) ;  private railroad 
terminals (Baldwin v. Morgan, 287 F. 2d 750, 754-755 (C.A. 
5 ) ) ;  the sidewalks of shopping centers (Freeman v. Retail 
Clerks Local 1207, 28 U.S. Law Wk. 2311 (Kings County 
Super. Ct., Washington, decided^December 9, 1959)) ;  and pri­
vate transit companies (.Public Utilities Comm'n v. Poliak, 343 
U.S. 451; Boman v. Birmingham Transit Go., 280 F. 2d 531 (C.A. 
5)) .



18

Nixon v. Condon. Nevertheless, the principle of these
decisions-—that a private organization which assumes 
a substantially governmental character must obey the 
restrictions placed by the Constitution upon govern­
mental action—applies to a significant extent to
Baconsfield.
:. (a) The provision of parks for the leisure and rec­
reation of urban dwellers is a traditional function of 
local government. “ In densely populated cities, pub­
lic parks are manifestly essential to the health, com­
fort and pleasure of their citizens, and it is generally 
held that municipalities may acquire land for park 
purposes.”  10 McQuillin, Municipal Corporations 
(3d ed.), § 28.51, p. 123. The State of Georgia ex­
plicitly authorizes its municipalities to acquire land 
for parks, playgrounds and other recreational pur­
poses, and to provide for their conduct and main­
tenance. (Georgia Code Ann. § 69—602; see Stubbs v. 
City of Macon, 78 Ga. App. 237, 50 S.E. 2d 866.) 
.Baconsfield is one of the largest parks in Macon with 
a distinctly public character. It is 100 acres in size 
/and centrally located. The park contains several 
fstreets which connect with the public streets surround- 
| ing the park, and is traversed by a major highway. 
! It is an integral part of Macon’s park system; if  it 

were closed, the city might well he forced to acquire 
j  additional park land to replace it. The existence of 

several privately endowed parks like it might actually 
dissuade a city from providing any recreational areas 
of its own—areas which it would, of course, be consti­
tutionally forbidden to operate on a segregated basis.



19

■(b) Apart from its physical characteristics, Baeons- 
field’s public nature is shown by its admissions 
policy which—unlike that of a private activity—lacks 
all selectivity (except as to race) with respect to those 
who are permitted to use the property. There are no 
qualifications for participation in the use of Bacons- 
field's facilities, no admission fees, and. no member­
ships or membership requirements. In contrast to 
a specialized recreational area sponsored by a group 
that has special interests which bring its members to­
gether, Baeonsfieid is designed to serve the entire 
community of Macon. “The more an owner, for his 
advantage, opens up his property for use by the pub­
lic in general, the more do his rights become circum­
scribed by the statutory and constitutional rights of 
those who use it.”  Marsh v. Alabama, 326 U.S. 501, 
506.

(c) That Baeonsfieid serves a municipal function is 
also strongly suggested by the fact that the Mayor 
and the Council of Macon were designated as trustees 
in the trust instrument and served in that capacity for 
many years. Senator Bacon intended Baeonsfieid to 
be a public area serving the entire community. Pre­
sumably, it was to assure its public character and its 
community function that he made the City responsible 
for its management and control. In exercising this 
function, the City confirmed the municipal character 
of the park.

(d) It is now a settled principle that the lessee or 
operator of public property may not exclude persons



20

from such property on racial grounds.14 This holds 
true even when the State has only bare legal title and 
is merely enforcing a racial limitation in a trust in­
strument. See Pennsylvania v. -Boat'd of Trusts, 35o 
U.S. 230. It seems apparent that a vital reason behind 
this rule is to erase the image of discriminatory 
government.

Regardless of the underlying technical arrangement, 
the appearance of Baconsfield is that of a municipal 
facility. The City of Macon managed Baconsfield for 
many years. For all intents and purposes it was a 
municipal park; and, in appearance and character, it 
remains indistinguishable from other municipal parks. 
The appointment of private trustees has not changed 
this. I f  Baconsfield remains segregated, whatever the 
technicalities of the trust arrangement, it will have 
the appearance of a segregated public facility and be 
regarded as such Dy a substantial segment of the 
community.

4. Impact upon Racial Minorities.—One of the ele­
ments which may be weighed in assessing State in­
volvement in nominally private discrimination is the 
discrimination’s probable impact on the affected

14 See Burton v. Wilmington Parking Authority, 365 U.S. 71.5; 
Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971, re­
versing 202 F. 2d 275 (C.A. 6 ); Derrington v. Plummer, 240 
F. 2d 922 (C.A. 5), certiorari denied, 353 U.S. 924; Depart­
ment of Conservation & Development v. Tate, 231 F. 2d 615 
(C.A. 4) ; Smith v. Holiday Inns of America, Inc., 220 F. Supp. 
1 (M.D. Term.); Coke v. City of Atlanta-, 184 F. Supp. 579 
(N.D. G a .); Jones v. Ma-rva. Theatres, Inc., 180 F. Supp, 49 
(D. M d .); Nash v. A ir Terminal Services, 85 F. Supp. 545 (E. 
D. Y a .) ; Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W . Va.).



21

minority. Where a “ private” discriminatory ar­
rangement has the same degree of impact upon a 
minority group as if  such discrimination were prac­
ticed by a governmental unit, strong reasons are pres­
ent for applying the standards of the Fourteenth 
Amendment. Undoubtedly an important factor in 
the Court’s decision in Shelley v. Kraemer, 334 U.S.
1, p. 17, supra, was that racially restrictive covenants 
are not isolated or localized but, on the contrary, > 
broad and far-reaching in their impact. A  system of 
such covenants blankets a neighborhood with uniform 
restrictions. Its natural, tendency is to create ghettos.
It thereby curtails radically the opportunities of the 
excluded minority group, in a manner and to an 
extent ordinarily effected only by governmental action. 
See Bell v. Maryland, 378 IT.S. 226, 329 (dissenting 
opinion) ; cf. Buchanan v. Warley, 245 U.S. 60. The 
restriction imposed has an even more pervasive charac­
ter when, as in Shelley v. Kraemer> it is binding not 
only on one generation, but on future generations as 
well; communities may consequently be frozen for long 
periods of time along rigid racial lines. Effects so 
profound and enduring are, so far as the prejudiced 
minority is concerned, equivalent to those produced 
by legislative action. Clearly, their magnitude far 
exceeds that of ad hoc private discrimination.

As a major public recreational facility reserved in 
perpetuity for whites, Baconsfield shares important 
characteristics with the perpetually restricted resi­
dential community in Shelley v. Kraemer. It would 
be anomalous in the extreme if Baconsfield, a facility



22

serving, a community-wide function, could constitu­
tionally be preserved in perpetuity as a park barred to 
Negroes, when private owners of surrounding prop­
erty are precluded by Shelley from enforcing racial 
covenants. Even more important than the impact 
upon Negroes of an individual public facility to which 
they can never have access are the wider implications 
if  the restricted operation of Bacon sfield is approved. 
To the extent that the white, but not the Negro, com­
munity is served by restricted facilities like Bacons- 
field, there is correspondingly less incentive for the 
community to provide adequate facilities to which 
Negroes would have access. I f  the present arrange­
ment is permissible in Macon, what is to prevent a 
iBaeonsfield in a community where there is only one 
park? Or, indeed, what is to prevent the provision 
of other essential public services through racially re­
strictive private endowments, and a concomitant re­
gression in the operation or creation of municipally 
owned and State-owned facilities open to Negroes?

As these questions suggest, discrimination by the 
establishment of a perpetual charitable facility serv­
ing a public purpose and open to all hut Negroes with­
out charge has more serious portents for the excluded 
minority than most forms of “ private”  discrimina­
tion. I f  Negroes are denied access to a particular 
commercial establishment, the forces of competition 
will ordinarily induce other establishments to provide 
the service. But if  they are denied the use of free 
hospitals, parks, libraries, or schools, they may well 
end up denied access to alh or substantially all such



facilities. Private enterprise will not proride such 
facilities; they are provided hv government or by 
charitable endowments or not at all. Moreover, they, 
typically require substantial capital investments and 
highly specialized skills and training, and few Negro 
communities will be able to donate the requisite funds 
and skills. A Negro “ Baconsfield” is not a likely 
response to the white-only Baconsfield—even if that 
were a solution which could commend itself to a demo­
cratic society.

5. State Involvement in the Decision to Discrimi­
nate.— State discrimination within the meaning of the 
Fourteenth Amendment occurs whenever the State ac­
tually participates in or significantly influences private 
decisions to discriminate. See Peterson v. Greenville, 
373 ILS. 244; Lombard v. Louisiana, 373 TT.S. 267; 
Robinson v. Florida, 378 ILS. 153. At a number of 
points in the history of the Baconsfield trust, the State 
has thus become involved in the actual implementa­
tion of racial discrimination. To some extent, this 
involvement persists.

(a) Georgia Code Ami. § 69-504 permits any per­
son to grant a municipal corporation lands in trust 
“ dedicated in perpetuity to the public use as a park, 
pleasure ground, or for other public purpose, and in 
said conveyance * * * [to] provide that the use of said 
park, pleasure ground, or other property so conveyed 
to said municipality shall be limited to the white race 
only, or to white women and children only * * 
Section 69-505 authorizes municipal corporations to 
accept such grants and enforce the racial limitation



24

by the police power. These statutes were in effect 
when Senator Bacon executed his will, and the lan­
guage in which he created the trust was in part bor­
rowed from § 69-504. In this sense, the present case 
parallels Lombard v. Louisiana, supra, where public 
officials encouraged private restaurants to exclude 
Negroes. See, also, Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 726-727 (concurring opinion).

(h) For many years after the establishment of 
Baconsfield, the City itself managed the park. Dur­
ing most of this period, it systematically excluded 
Negroes. This was unconstitutional State action, 
jPennsylvania v. Board of Trusts, 353 U.S. 230. More 
important in the present context, however, this past 
State action may well be directly responsible for the 
present status of Baconsfield. I f  the City had not 
thus unconstitutionally administered Baconsfield as 
a park for whites only during this long period, it is 
conceivable that the park, administered privately, 
would by this time have become an integrated facility. 
Or, if  the failure of the City as trustee had led in­
stead to the withdrawal of Baconsfield from public 
park use, the City might itself have acquired substitute 
park property, which it would now be compelled to 
make available to Negroes on a basis equal with whites 
(see, also, n. 15, infra, pp. 25-26).

(c) When the City realized it could no longer con­
stitutionally exclude Negroes from Baconsfield, it 
began to admit them. Thereupon the Board of Man­
agers of Baconsfield—appointed by the City and a 
part of the city administration—sued to procure the



25

appointment of private trustees who would resume 
the practice of exclusion. This, suit, which was not 
prompted by any private complaint, was also State 
action. For, so far as appears, “hut for the active 
intervention of the state courts, supported by the full 
panoply of state power,”  the Negro residents of 
Macon “ would have been free to occupy the properties 
in question.”  Shelley v. Kraemer, 334 IT. S. 1, 19. 
The clear purpose of the suit was to perpetuate racial 
discrimination, the gravamen of the complaint being 
that the City was “ failing and refusing to carry out and 
enforce the provisions of * * * [Senator Bacon’s] 
W ill with respect to the exclusive use”  of the park 
by white persons (R. 8). Absent the State’s action 
here, there is strong basis to believe that Baeonsfield 
would have been permitted to become an integrated 
facility through the acquiescence of all interested 
parties.15

16 To be sure, a beneficiary of the trust (i.e., a white person 
who used the park) could have sued to enforce the racial limita­
tion. See Duffee v. Jones, 208 Ga. 639, 68 S.E. 2d 699; Doming 
v. Stanley, 162 Ga. 211, 133 S.E. 245; Harris v. Brown, 124 Ga. 
310, 52 S.E. 610. But no such person evinced any interest in 
suing. A  citizen or taxpayer o f Macon who was not a bene­
ficiary of the trust could not have sued {Flam s v. Brown, 
supra), and we have found no Georgia case ruling that an 
heir or residuary legatee of the settlor may enforce a charitable 
trust; the general rule denies standing to the settlor, his heirs, 
and contributors, to the trust. Greenway v. Irvine's Trustee, 
279 Ivy. 632, 131 S.W. 2d 705; Leeds, v. Harrison, 15 A.J. 
Super. 82, 83 A. 2d 45. O f course, an heir may sue to set 
a trust aside and obtain the property himself by reversion. 
Of. Silcox v. Harper, 32 Ga. 639; Gumming v. Trustees of 
Reid Memorial-Church, 64 Ga. 105. But this, is a very differ­
ent matter from enforcing the trust according to its original



26

(d) The City thereafter resigned as trustee. The 
resolution of resignation (R. 60-61) makes clear that 
its action in resigning was motivated principally, if 
not exclusively, by a desire to perpetuate racial dis­
crimination. Cf. (xomiUioii v. Light foot, 364 U.S. 
339 ; Griffin v. School Board, 377 U.S. 218.

(e) The State court accepted the City’s resignation 
and appointed private trustees to operate Baconsfield 
on a segregated basis. The State Supreme Court 
upheld the lower court’s action. Cf. Shelley v. Krae- 
mer, supra. In short, the case is one where the State, 
having administered Baconsfield as a segregated mu­
nicipal institution for many years, has acted to trans­
fer it to private j(dnds in order to perpetuate segrega­
tion. In these circumstances, the State bears substan­
tial responsibility for the racial discrimination now 
enforced by the trustees, albeit they are nominally a 
private body (see cases cited in n. 14, supra, p. 20).

6. The Effect upon Private Choice.—The Civil 
Rights Cases, 109 U.S. 3, 11, distinguished between 
State action subject to the Fourteenth Amendment 
and purely “  [iIndividual invasions of individual 
rights” , which the Amendment does not reach. This 
distinction, uniformly followed (see, e.g., Burton v. 
Wilmington Parking Authority, 365 U.S. 715, 722),

tenor. Faced with the prospect of losing Baconsfield to the 
heh’S' of Senator Bacon, who might close the park and use the 
land for other purposes, the City might decide to secure the 
land by condemnation—in which event it would be constitu­
tionally required to continue to operate it on a non-segregated 
basis A t all events, the heirs o f Senator Bacon instituted no 
suit, but merely joined belatedly in the suit brought by the 
Board o f Managers.



27

recognizes that the Fourteenth Amendment, consist­
ently with the spirit and institutions of American 
life, leaves substantial freedom for private choice in 
social, business, and professional activities and asso­
ciations. The Amendment was not intended to raise 
every instance of personal or private racial discrimi­
nation to the constitutional level. Therefore, in de­
termining its application in the disputed borderline 
area of joint public and private responsibility, it is 
relevant to consider evidence not only of affirmative 
State involvement, but of the absence of a substantial 
interest in protecting the area of truly private choice 
that the Amendment does not penetrate.

A  finding of State action in this case would not in­
trude upon that area. No issue is presented here as 
to a property owner’s right to decide whom to permit 
on his premises; and the only private choice effectu­
ated by enforcing the racial limitation in the trust 
would be that of Senator Bacon, who died many years 
ago. So far as the living are concerned, Baeonsfield 
is not a private facility used in a private way but a 
public facility open to all except: Negroes. Even less 
than most commercial establishments, Baeonsfield is 
not a place of intimate or private associations. As a 
public park open to all (except Negroes), it is a place 
of strictly transient and casual encounters. It has 
none of the aspects of a private home or club, where 
there is a compelling interest in permitting people to 
be free to choose those with whom to associate. More­
over, the decision to exclude Negroes was not made by



28

anyone using the park and, for all that appears, there 
was not even a complaint from the white users when 
the City admitted Negroes to Baconsfield.

In sum, Baconsfield is, except for its exclusion of 
Negroes, a truly municipal facility serving a public 
purpose. The State has not only created the legal 
framework within which such “ private”  charitable 
institutions are established to serve public functions, 
but it lends them its direct support. In this case, in 
addition, the State has been intimately involved in 
the actual discriminatory operation of Baconsfield: 
The City of Macon administered the park for many 
years as a facility for whites only—thus inevitably 
shaping its present character—and this very suit is an 
example of affirmative State action recently taken to 
preserve Baconsfield as a public facility entitled to 
exclude Negroes while admitting all others. The 
consequence of Baconsfield’s continued existence as a 
segregated facility will be not only to deprive Negroes 
of equal access to public parks in Macon; there is 
danger that similar “private”  operation of addi­
tional public facilities will deprive Negroes of other 
public services freely available to whites. All of these 
considerations, as well as the fact that Baconsfield s 
public character negates any substantial interest in 
private choice which would be adversely affected 
should the Fourteenth Amendment be held to apply, 
lead us to conclude that Baconsfield should be treated 
as a public institution of a governmental character re-



29

quired by the Constitution to admit persons without 
regard to their race.16

CONCLUSION

The judgment of the Supreme Court of Georgia, 
holding that the trustees of Baconsfleld are legally 
obligated, and constitutionally permitted, to exclude 
Negroes on grounds of race or color, should be 
reversed.

Respectfully submitted.
T hurgood M arshall,

Solicitor General.
J ohn D oar,

Assistant Attorney General.
R alph S. Spritzer,
P aul B ender,
R ichard A . P osner, 

Assistants to the Solicitor General. 
D avid R ubin ,
J ames L. K elley,
P aul S. A dler,

Attorneys.
September 1965.

16 While it is clear, if our views are accepted by the Court, 
that no one mav operate Baconsfleld as a segregated park, we 
think it would*be premature for this Court to consider (1) 
whether the heirs o f Senator Bacon may obtain the property 
by reversion and use it for non-park purposes (e.g., a resi­
dential development); or (2) whether the present trustees may 
close the park. W e note, however, that both courses o f action 
would raise constitutional questions. As to the first, see Gv/d- 
Imy v. Administrators o f Tutane University, 212 F. Supp. 674, 
687 (E.D. L a .) ; cf. Barrows v. Jackson, 846 U.S. 249, 254; as 
to the second, see Griffin v. School Board, 377 U.S. 218.

U.S. GOVERNMENT PRINTING OFFICE: 1965