St. Peter Villa, Inc. v. Linton Brief in Opposition to Certiorari
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March 22, 1996

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Brief Collection, LDF Court Filings. Hawkins v. Town of Shaw, MS Appellants' Supplemental Brief on Rehearing En Banc, 1971. ec3bf1c8-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f36e65f2-6629-4e58-a81b-205738fb6bc9/hawkins-v-town-of-shaw-ms-appellants-supplemental-brief-on-rehearing-en-banc. Accessed July 01, 2025.
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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 -2- 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 -3- 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 -4- 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 -5- 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). -6- 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): -7- "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 - a- 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. -9-