Smith v Holiday Inns of America Brief for Plaintiff Appellee

    luitri} #tatrs (Emu*! of Ajijirals
F or the Sixth Circuit 

No. 15,580

I n  the

V asco A. Smith, Jr.,
Plaintiff-Appellee,

—vs.—

H oliday I nns of A merica, I nc., and James Dew ,

Defendants-Appellants.

ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES 

DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

BRIEF FOR PLAINTIFF-APPELLEE

A von N. W illiams, Jr.
Z. Alexander Looby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

A. W . W illis

588 Vance Avenue 
Memphis, Tennessee

Jack Greenberg

Constance Baker Motley

F rank H. Heffron 
Suite 2030 
10 Columbus Circle 
New York, New York, 10019

Attorneys for Plaintiff-Appellee



Counter-Statement of Questions Involved

1. Does racial discrimination by a redeveloper of land 
in an urban redevelopment project conceived, sponsored, 
and controlled by state and federal agencies violate the 
Fifth and Fourteenth Amendments to the Constitution!

The District Court answered “ yes.”

The plaintiff-appellee contends that the answer should 
be “yes.”

2. Did the District Court have power under 28 U. S. C. 
§1343 and 42 U. S. C. §1983 to redress the denial of the 
plaintiff-appellee’s constitutional right?

The District Court answered “yes.”

The plaintiff-appellee contends the answer should be 
“yes.”



I N D E X

PAGE

Counter-Statement of F acts.............................................. 1

A rgument :

I. Does Eacial Discrimination by a Redeveloper of 
Land in an Urban Redevelopment Project Con­
ceived, Sponsored, and Controlled by State and 
Federal Agencies Violate the Fifth and Four­
teenth Amendments to the Constitution?

The District Court answered “ yes.”

The plaintiff-appellee contends that the answer 
should be “yes” ...................................................... 8

II. Did the District Court Have Power Under 28 
U. S. C. §1343 and 42 U. S. C. §1983 to Redress 
the Denial of the Plaintiff-Appellee’s Constitu­
tional Right?

The District Court answered “yes.”

The Plaintiff-Appellee contends the answer 
should be “ yes” ...................................................... 16

Cases Cited

Adams v. City of New Orleans, 208 F. Supp. 427 (E. D.
La. 1962), aff’d 321 F. 2d 493 (5th Cir. 1963) .......12,18

Bolling v. Sharpe, 347 U. S. 497 ..................................  12
Burton v. Wilmington Parking Authority, 365 U. S.

715 ........................................................8,10,12,13,14,15,17



11

PAGE

City of Greensboro v. Simkins, 246 F. 2d 425 (4th Cir. 
1957), affirming 149 F. Supp. 562 (M. D. N. C.
1957) ...............................................................................12,18

Coke v. City of Atlanta, 184 F. Supp. 579 (N. D. Ga. 
I960) ...............................................................................12,18

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), 
cert, denied sub nom. Casey v. Plummer, 355 U. S.
924 ............................................................................. 10,12,18

Hampton v. City of Jacksonville, 304 F. 2d 320 (5th 
Cir. 1962), cert, denied sub nom. Ghioto v. Hampton,
371 U. S. 911..............................................................11,12,18

Marsh v. Alabama, 326 U. S. 501.................................... 11,14
Monroe v. Pape, 365 U. S. 167 ......................................  16

Plummer v. Casey, 148 F. Supp. 326 (S. D. Tex. 1955) .. 18

Simkins v. Moses H. Cone Memorial Hospital (4th Cir.,
No. 8908, November 1, 1963) ............................12,13,15,18

Terry v. Adams, 345 U. S. 461 ......................................  11
Turner v. Memphis, 369 U. S. 350 .................................12,17

Other A uthorities Cited

12 U. S. C. §1716K.............................................................  5

28 U. S. C. §1343(3) ........................ ...... ... ........... ...16,17,18
42 U. S. C. §1983 ............................................................... 16, lg



I k the

llmtvb States (Eaurt n! Apprals
F or the S ixth Circuit 

No. 15,580

V asco A. Smith, Jr.,

Plaintiff-Appellee,

— vs.—

H oliday Inns o f  A merica, Inc., and James Dew,

Defendants-Appellants.

ON APPEAL f r o m  t h e  j u d g m e n t  of  t h e  u n it e d  s t a t e s

DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

BRIEF FOR PLAINTIFF-APPELLEE

Counter-Statement of Facts

With the exception of certain matters mentioned below, 
plaintiff-appellee does not dispute the defendants-appel- 
lants’ statement of facts. It is submitted, however, that the 
district court’s presentation of the facts in its opinion (App. 
42a-53a), adopted as formal findings of fact in the judg­
ment (App. 57a), is a more complete and balanced sum­
mary of the material facts.1 This portion of the brief will

1 The district court’s opinion as printed in defendants-appellants’ 
appendix contains two minor typographical errors. On page 48a, 
the amount spent on site clearance should be $99,500 rather than 
$9,500. The amount spent on site development should be $2,491,967 
rather than $2,492,967.



2

discuss the disputed portions of defendants-appellants’ 
statement of facts and direct the Court’s attention to some 
evidentiary matters not included in the district court’s 
findings.

In defendants-appellants’ statement of facts (Brief, p. 4), 
it is asserted that the restrictions placed by covenant upon 
land in the Redevelopment Project “were of the same type 
that the City is authorized to place on property by virtue 
of its zoning powers (Tennessee Code, Section 13-701) 
whether or not the property is or ever has been owned by 
any government or governmental agency.” While the cor­
rectness of this statement is not disputed, it is pointed out 
that the restrictive covenants covering the Project area are 
a unique body of restrictions covering a distinct area of 
land. Article V, section 6 of the covenants (App. 17a, 22a) 
states that they “ are in addition to the provisions of the 
zoning or building ordinances or any other regulations of 
the City of Nashville. . . . ”

Defendants-appellants also assert that because the cove­
nants permit several types of land use,

Holiday Inns of America, Inc., could, without violation 
of its covenants, lease a portion of its building to a 
club or a barber shop, convert the building into a club­
house or an apartment hotel, sell the property for use 
as a church, or do any number of things within the 
permitted uses. The Nashville Housing Authority 
could not lawfully have retained the right to forbid 
uses permitted by the Redevelopment Plan, nor can 
the deeds be fairly construed as giving The Nashville 
Housing Authority any greater control over the prop­
erty than the City has over all property within its 
boundaries under its general zoning powers. (Brief, 
P -5 ) .



3

This is extremely misleading. In the contract of sale Holi­
day Inns agreed to construct a motel (App. 49b-50b, 92b, 
52a-53a), not a clubhouse, church or other type of enter­
prise. Plans and specifications for the motel were attached 
to the contract of sale, and these had to be approved by the 
Housing Authority.2 Article V, section 2 of the covenants 
(App. 21a) provides that

“ No use or change in use shall be established or made, 
nor shall any improvement be erected, constructed, 
placed, or altered on any building site until the pro­
posal for such use or improvement is first submitted 
to and approved in writing by the Grantor” (emphasis 
added).

In fact Holiday Inns actually submitted plans for an auto­
mobile service station to be placed on property adjoining 
the motel, but the Housing Authority disapproved (App. 
49b-50b), even though the covenants did not prohibit such 
a use (App. 50b, 22a-24a). In the words of Mr. Gerald 
Gimre, Executive Director of the Nashville Housing Au­
thority (App. 14b), “ It was just a matter of discretion” 
(App. 50b). On another occasion a minor structural change 
in the motel was approved (App. 51b).

Several factual matters relied on by plaintiffs below were 
not included in the district court’s findings of fact or con­
sidered in the opinion. Although it seems clear that the 
court’s conclusions of law were amply supported by the 
facts relied upon in the opinion, these additional factors 
are presented for this Court’s consideration.

As administrator of the Capitol Hill Redevelopment 
Project, the Nashville Housing Authority had the respon­

2 See also the deeds conveying the properties, App. 30a, 32a-33a, 
34a, 37a.



4

sibility for relocating the persons living in the area. Of the 
301 families residing in the area, 288 were Negroes; 180 
of the 196 individuals living alone were Negroes (App. 
128b). An effort was made to place these dispossessed per­
sons in public housing projects operated by the Housing 
Authority, all ten of which are strictly segregated accord­
ing to race (App. 63b). However, most residents of the 
Project area were placed in substandard housing (App. 
128b).

When the Redevelopment Plan was before the City Coun­
cil of Nashville on April 29, 1952, Councilman Z. Alexander 
Looby offered an amendment stipulating that occupants of 
the land in the Project area be given preference on resale 
of the land. This amendment was voted down. (App. 54b, 
83b, 132b, 134b).

The Loan and Grant Contract between the Federal Gov­
ernment and the Nashville Housing Authority included 
among its comprehensive regulations a provision prohibit­
ing racial discrimination against employees working in the 
development of the Project. Nevertheless, the Housing 
Authority approved the specifications submitted by Holiday 
Inns which stated that racially segregated toilet facilities 
would be provided for construction workers (App. 66b-68b).

In the early 1950’s the management of Holiday Inns was 
looking for a suitable motel site in the center of Nashville 
when it learned of the availability of land in the Project 
area. Mr. Charles M. Collins, Vice-President and General 
Counsel of Holiday Inns remarked, “ . . . there is a slogan in 
the motel business in selecting a site for a hotel or motel 
or inn, that the three most important things are location 
and location and location” (App. 143b). Among the factors



5

which made Project land suitable for motel purposes were 
its proximity to the Capitol and downtown office buildings 
and its location on the newly constructed James Robertson 
Parkway (App. 143b, 144b), which is on major interstate 
highway routes (App. 100b-103b).

The Capitol Hill Redevelopment Project has transformed 
a large segment of downtown Nashville from a run-down 
slum into a modern, attractive, and prosperous center for 
municipal and commercial affairs (Photographs,3 App. 
147b). Several new buildings of modern design, including a 
Municipal Auditorium and a Municipal Parking Garage,4 
have been erected, and others are to be erected when the 
remaining land is sold. Property values have increased to 
such an extent that the City of Nashville already receives 
twice as much revenue from property taxes as it did before 
the Project was undertaken even though approximately 
one-third of the marketed land was sold to tax-exempt or­
ganizations (App. 42b, 90b, 91b, 131b).

In accordance with local law, Holiday Inns secures vari­
ous licenses from the City of Nashville and from Davidson 
County permitting it to operate a motel with restaurant 
and bar (App. 116b-118b).

3 The photographs comprising Plaintiff’s Exhibit 3C show por­
tions of the Capitol Hill area as it looked before the Redevelop­
ment Project (App. 123b, 126b). Those in Plaintiff’s Exhibit 7 
are more recent (App. 72b-74b, 81b-82b).

1 See App. 76b. Of the 72 acres in the Project, 35.22 acres are 
used for streets, alleys, and public right-of-way. An additional 
6.64 acres are set aside for public and semi-public uses, such as the 
municipal facilities mentioned above (App. 128b, 130b). In addi­
tion, two large apartment buildings built in the Project area were 
financed by mortgage loans insured on extremely favorable terms 
by the Federal Housing Authority, in accordance with a special 
statutory provision, 12 U. S. C. §1716K, relating to housing in 
urban renewal and redevelopment areas (App. 42b-46b, 94b-96b 
121b).



6

At the time of trial, no motels in the downtown section 
of Nashville, the capital of Tennessee, admitted Negroes as 
paying guests (App. 108b, 113b).

Plaintiff-appellees submit that Holiday Inns paid con­
siderably less than the fair market value of the two parcels 
of land purchased from the Housing Authority.5 Two quali­
fied real estate men, James F. McClellan and A. C. Walker, 
both experienced in appraising property values in down­
town Nashville, testified that land in the Project area on 
James Robertson Parkway normally would have sold at 
$3.50 per square foot (App. 107b, 112b). Based on these 
measures, the value of Parcel G (44,582 sq. ft.) was $156,037 
as opposed to the $90,029.00 paid, and Parcel H was worth 
$162,200.50 rather than $104,742.00.

Mr. Gimre testified that the Housing Authority hired 
independent appraisers to calculate the fair market value 
of properties in the Project area, and that the federal regu­
lations limited sales to a range of 10% below and 15% 
above appraised value (App. 24b-26b, 55b). However, Mr. 
Hershell Greer of the Guaranty Realty Company, which 
handled land disposition for the Housing Authority, testi­
fied that the latest appraisal figures supplied to him by the 
Authority were $2.60 per square foot for Parcel G and $2.90 
per square foot for Parcel H (App. 93b, 97b-99b, 135b). 
The following figures demonstrate the advantage received 
by Holiday Inns:

5 The issue of fair market value is the only factual matter remain­
ing in the case about which there was any substantial dispute.



7

Appraised value per square 
Number of square feet

Total value 
10% of value

Value reduced by 10% 
Price paid by Holiday Inns

Difference

Parcel G Parcel H
$2.60 $2.90

44,582 46,343

$115,913.20 $134,394.70
11,591.32 13,439.47

104,321.88 120,955.23
90,029.00 104,742.00

$ 14,292.88 $ 16,213.23

Thus, even if the land had been sold at 10% below ap­
praised valuation, Holiday Inns would have had to pay 
$30,000 more than it paid. If it had paid full market value 
as computed by the Housing Authority’s appraisers, it 
would have had to pay approximately $55,000 more than 
it paid.



8

A R G U M E N T

I
Does Racial Discrimination by a Redeveloper of Land 

in an Urban Redevelopment Project Conceived, Spon­
sored, and Controlled by State and Federal Agencies 
Violate the Fifth and Fourteenth Amendments to the 
Constitution?

The District Court answered “ yes.”

The plaintiff-appellee contends that the answer should
be “ yes.”

Appellee was refused accommodations in the Holiday 
Inn-Capitol Hill motel solely because of his race (App. 43a; 
220 F. Supp. 1, 2). It is well settled that “private conduct 
abridging individual rights does no violence to the equal 
protection clause unless to some significant extent the State 
in any of its manifestations has been found to have become 
involved in it.” Burton v. Wilmington Parking Authority, 
365 U. S. 715, 722. The question presented here is whether 
the state and federal governments have been shown to he 
significantly involved in the conduct of Holiday Inns of 
America.

It is submitted that the extent of governmental involve­
ment present in this case is more than sufficient to impose 
a duty of nondiscrimination on the management of the 
motel. A brief review of the facts illustrates the tremendous 
scope of governmental action and the relationship of mutual 
dependence existing between this motel and the state.

The State of Tennessee created the Nashville Housing 
Authority to deal with problems of urban housing and re­
development. The Housing Authority undertook a study 
of the Capitol Hill area and determined that the extreme



9

slum conditions existing there were detrimental to the eco­
nomic and social health of the city, in addition to providing 
an unsatisfactory setting for the State Capitol Building. 
The Authority’s studies were subsidized by the Housing and 
Home Finance Agency of the United States Government. 
A plan for slum clearance was formulated, and approvals 
were obtained from the Planning Commission, City Council, 
and Mayor of the City of Nashville, which undertook to pay 
one-third of the net cost of the Project. Approval was also 
secured from the federal government, which agreed to pay 
two-tliirds of the net cost of the project if certain standards 
were met. (The net cost is expected to amount to more 
than $7.8 million.) Meanwhile, the State of Tennessee was 
devising an interdependent plan to acquire other lands sur­
rounding the Capitol for various state purposes. With the 
full force of the federal, state and local governments placed 
behind its effort, the Nashville Housing Authority carried 
its plan into execution, acquiring 72 acres of slum lands, 
clearing all the structures from them, installing facilities 
for all types of utility services, constructing a wide boule­
vard, and landscaping the area. It then sold 38 acres to 
private entities for continued execution of the plan.

An integral part of the redevelopment plan is the par­
ticipation of private business. Sale of the developed sites 
substantially reduces the net cost of the project to the gov­
ernment. Each purchaser provides the capital for the erec­
tion of a business enterprise and enjoys the profits accruing 
from its operation. The likelihood of profit is enhanced by 
the fact that each business is surrounded by other modern 
buildings in an attractively planned setting created by the 
government. In return for these unquestioned business ad­
vantages, the purchaser submits to a comprehensive regula­
tion: it is obligated to build a suitable structure within a 
limited amount of time; it must carry on only the type of 
business which fits into the general plan; it must obey spe­



10

cial zoning regulations in addition to those imposed on 
other property owners. And, of course, the city receives 
greatly increased tax revenues from the redeveloped land.

These numerous and pervasive forms of governmental 
participation amount to significant state involvement in 
the motel. They lend full support to the district court’s 
conclusion that:

Extensive involvement by the state, in many and varied 
forms and through various agencies, is evident not only 
in the conception, formulation, development, and carry­
ing out of the over-all public plan and project, but also 
in its continuation and perpetuation. The two aspects 
of the Project must not be overlooked, i.e., the clear­
ance of the area of slums, and its redevelopment under 
a state-designed plan to be maintained under state con­
trol and supervision (App. 55a; 220 F. Supp. at 8).

It is important to stress that this is not a case in which 
the State is merely a link in the chain of title. Neither is 
this a case in which the fact of prior development of the 
property, without more, is asserted to amount to “ state 
action” (App. 43a-44a, 220 F. Supp. at 2). Nor is this a 
case involving the sale of “ surplus property” 6 where the 
State has no concern in the use of the property. In this 
case, the State has not only conceived and executed the 
plan, but has retained strict supervisory powers over the 
use of the land to ensure fulfillment of the purposes of the 
plan. Appellants do not dispute these findings. Rather 
they attempt to belittle their significance by contending 
that they amount to no more than normal zoning regula­
tions.

6 See Derrington v. Plummer, 240 F. 2d 922, 925 (5th Cir. 1956), 
cert, denied 353 U. S. 924; Burton v. Wilmington Parking Au­
thority, 365 U. S. 715, 723-724.



11

The controls imposed on Holiday Inns by the contract 
of sale, the deeds, and the restrictive covenants far exceed 
those of normal zoning regulations. The covenants, like 
typical zoning provisions, do regulate such matters as re- 
subdivision, building heights, display signs, and loading 
practices (App. 24a-26a), but they are special limitations 
applicable to a unique group of property owners. More im­
portantly, Holiday Inns operates under restrictions never 
contemplated by usual zoning and building ordinances. 
Upon purchase of the land, Holiday Inns freely bargained 
away some of the most valuable incidents of property own­
ership. It gave up the right to choose whether to develop 
the property, when to build, what to build, or how to build. 
Holiday Inns, or any grantee from it, cannot change the use 
of the building site or make any structural alteration with­
out written permission from the Housing Authority. It 
undertook to conduct its business so that the governmental 
purposes which gave rise to the plan would be served.

Thus it matters little that the form of the transaction was 
a sale rather than a lease. As the district court held, “ The 
crucial test of state action is the actuality of state involve­
ment rather than the form of the transaction” (App. 55a; 
220 F. Supp. at 8). In Hampton v. City of Jacksonville, 
304 F. 2d 320 (5th Cir. 1962), cert, denied sub nom. Ghioto 
v. Hampton, 371 U. S. 911, the city sold its golf course to 
bona fide vendees, but the interest it retained in restricting 
the property’s use subjected the vendees to the strictures 
of the Fourteenth Amendment.

It is well-settled that “ private” organizations may be re­
quired to uphold basic constitutional standards. In Terry 
v. Adams, 345 U. S. 461, a “ private” political organization 
meticulously isolated from the state electoral machinery 
was forbidden to hold primary elections from which Negroes 
were excluded. In Marsh v. Alabama, 326 U. S. 501, a pri­



12

vate corporation with no governmental status, but owning 
all the land in a town, was forced to recognize Fourteenth 
Amendment rights. And in Burton v. Wilmington Parking 
Authority, 365 U. S. 715, the private lessee of a state agency 
similar in many respects to the Nashville Housing Authority 
was forced to abandon its racially discriminatory policy of 
customer selection.7 Several other cases have held that 
private lessees of state-owned property or vendees of state- 
restricted property may not discriminate. See, e.g., Der- 
rington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), cert, 
denied, 353 U. S. 924; Hampton v. City of Jacksonville, 304 
F. 2d 320 (5th Cir. 1962), cert, denied, 371 U. S. 911; City 
of Greensboro v. Simkins, 246 F. 2d 425 (4th Cir. 1957) ; 
Adams v. City of New Orleans, 208 F. Supp. 427 (E. D. 
La. 1962); Coke v. City of Atlanta, 184 F. Supp. 579 (N. D. 
Ga. 1960).

Thus the test is not whether the actor is “ private” or 
“ public” ; it is whether the state is involved to a significant 
extent in private conduct. The Fourth Circuit recently ap­
plied the rationale of the Supreme Court decision in Burton 
to a case involving two “ private” hospitals. Simkins v. 
Moses H. Cone Memorial Hospital (No. 8908, November 1, 
1963). The court held that the hospitals’ participation in 
a “ joint federal and state program allocating aid to hospital 
facilities throughout the state” subjected them to the pro­
hibitions of the Fifth8 and Fourteenth Amendments. Two 
relevant factors in the Fourth Circuit’s decision were “ the 
massive use of public funds” and “ extensive state-federal 
sharing in the common plan.”

7 Followed in Turner v. Memphis, 369 U. S. 350.

8 Defendants-appellants argued that the Fifth Amendment has 
no provision applicable to this case (Brief, pp. 18-19). The due 
process clause of the Fifth Amendment condemns racial discrimi­
nation by the federal government. Bolling v. Sharpe, 347 U. S. 497.



13

The court wrote:

Not every subvention by the federal or state govern­
ment automatical}- involves the beneficiary in “ state 
action” , and it is not necessary or appropriate in this 
case to undertake a precise delineation of the legal rule 
as it may operate in circumstances not now before the 
court. Prudence and established judicial practice coun­
sel against such an attempt at needlessly broad adjudi­
cation. Our concern is with the Hill-Burton program, 
and examination of its functioning leads to the conclu­
sion that we have state action here. Just as the Court 
in the Parking Authority case attached major signifi­
cance to the “ obvious fact that the restaurant is oper­
ated as an integral part of a public building devoted to 
a public parking service,” 365 U. S. at 724, we find it 
significant here that the defendant hospitals operate 
as integral parts of comprehensive joint or intermesh­
ing state and federal plans or programs designed to 
effect a proper allocation of available medical and hos­
pital resources for the best possible promotion and 
maintenance of public health. Such involvement in dis­
criminatory action “ it was the design of the Fourteenth 
Amendment to condemn.”

In this case it seems significant that the motel’s operation 
is an integral part of a comprehensive state and federal plan 
to revitalize the downtown section of Nashville.

It is submitted that the facts in both the Simkins case 
and this case represent stronger instances of significant 
governmental involvement than those in the Burton case, in 
which there was little more than an arm’s length business 
transaction between the state and a private business. The 
state’s only purpose in leasing space to the restaurant was 
to augment revenues from the parking project. 365 U. S. at



14

719. Here the motel is more closely supervised, and its 
operation is essential to the success of the government’s 
plan.

Appellants argue (Brief, pp. 11, 27-28) that the judg­
ment below must be reversed because it ipso facto requires 
the identical result in the case of a church or clubhouse 
located in the Capitol Hill Redevelopment Area. But the 
status of a a church or clubhouse is not in issue in this 
case and need not trouble the Court at this time. More­
over, the identical result need not in fact be reached in 
those situations, because weighty constitutional interests 
of privacy, association, and the free exercise of religion 
might there compel different results. Here, the motel is 
in the business of serving the public. “ The more an owner, 
for his advantage, opens up his property for use by the 
public 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.

Finally, it is necessary to dispel any confusion that ap­
pellants may have generated over the definition of the 
constitutional right in this case. Appellants erroneously 
assert (Brief, p. 12) that the District Court held that “ a 
Negro has the ‘ right’ to be served or accommodated without 
discrimination by any business establishment or non-busi­
ness establishment in the State of Tennessee; but his right 
to relief is dependent on state involvement to a significant 
extent in the proprietor’s conduct.” Having thus defined 
the terms, appellants naturally found a “ self-contradic­
tion” in terms. What the District Court held was that, 
pursuant to Burton v. Wilmington Parking Authority, 365 
U. S. 715, appellee had a right to be free from racial dis­
crimination in a motel in which the State was to a significant 
extent involved.



15

Moreover, appellants misconstrue the Burton definition 
of state action by suggesting (Brief, p. 34) that they must 
be shown to have acted “ as an arm, branch, agency or in­
strumentality of the state in denying motel accommodations 
to the plaintiff.” The District Judge in Simkins v. Moses 
H. Cone Memorial Hospital, supra, fell into the same error 
and was reversed. The Court of Appeals for the Fourth 
Circuit said:

In the first place we would formulate the initial ques­
tion differently [from the District Judge] to avoid 
the erroneous view that for an otherwise private body 
to be subject to the antidiscrimination requirements 
of the Fifth and Fourteenth Amendments it must actu­
ally be “ render[ed an] instrumentality] of govern­
ment— .” [Quoting the District Judge]. In our view 
the initial question is, rather, whether the state or the 
federal government, or both, have become so involved 
in the conduct of these otherwise private bodies that 
their activities are also the activities of these govern­
ments and performed under their aegis without the 
private body necessarily becoming either their instru­
mentality or their agent in a strict sense.

In conclusion, appellee submits that in this case the gov­
ernment is so inextricably involved in assisting and con­
trolling the ultimate redevelopment that fairness to all 
the people represented by government requires use of the 
property unrestricted by consideration of race.



16

II

Did the District Court Have Power Under 28 U. S. C. 
§13-13 and 42 U. S. C. §1983 to Redress the Denial of 
the Plaintiff-Appellee’s Constitutional Right?

The District Court answered “ yes.”

The Plaintiff-Appellee contends the answer should be
“ yes.”

The district court properly held that appellee had been 
deprived of his constitutional right to be free from racial 
discrimination by a motel in which the state is to a signi­
ficant extent involved. Therefore, the district court held, 
without discussion, that it had power under 28 U. S. C. 
§1343 (3) and 42 U. S. C. §1983 to provide redress (App. 
pp. 43a, 57a). Discussion seemed hardly necessary, for 
Congress, through the enactment of the Civil Rights Acts, 
has mandated federal courts to redress deprivations of con­
stitutional rights.9

Appellants, however, challenge the power of the district 
court to redress the violation of the Fourteenth Amendment 
established in this case. They contend that they have not 
been shown to have acted “ under color of any State law, 
statute, ordinance, regulation, custom or usage” .

Appellee submits that precedent and policy make clear 
beyond cavil that the quoted term is not to be construed 
so as to prevent federal courts from redressing deprivations 
of constitutional rights.10 Rather, the term is to be con­

9 See Monroe v. Pape, 365 U. S. 167, 171:
Its [section 1983’s] purpose is plain from the title of the 
legislation, “An Act to enforce the provisions of the Four­
teenth Amendment to the Constitution of the United States, 
and for other purposes.” 17 Stat. 13.

10 See Monroe v. Pape, 365 U. S. 167, where that term was con­
strued to embrace defendants who acted in defiance of state law.



17

strued so as to impose a requirement that will be satis­
fied by the same nexus of state controls that satisfies the 
Fourteenth Amendment requirement of “ state action” .

Turner v. Memphis, 369 U. S. 350 is squarely in point. 
Turner was a suit brought under 28 U. S. C. §1343(3) and 
42 U. S. C. §1983 to enjoin the defendant restaurant, a 
lessee of the City of Memphis, from segregating its cus­
tomers. The suit was ordered held in abeyance in the dis­
trict court pending a state court suit. Plaintiff appealed 
this order to the United States Supreme Court. At oral 
argument before the Court the defendant conceded that it 
“was subject to the strictures of the Fourteenth Amend­
ment under Burton v. Wilmington Parking Authority” (369 
U. S. at 353). This concession ended the case. The Court 
said:

On the merits, no issue remains to be resolved. . . . 
[T]he case is remanded to the District Court with 
directions to enter a decree granting appropriate in­
junctive relief against the discrimination complained 
of. 369 U. S. at 353-354.

In short, once a violation of the Fourteenth Amendment 
was established, the power of the federal courts to afford 
relief was beyond question. This Court, on April 11, 1962, 
ordered the District Court for the Western District of 
Tennessee to enter an injunction against the defendant, 
which it did on May 11, 1962.

Appellants seek to escape the command of Turner v. 
Memphis by arguing that there the defendant made the 
mistake of invoking certain state statutes as a defense— 
thereby supplying the element of action “ under color o f” 
law— rather than having had the suit dismissed for lack of 
jurisdiction. This argument is fallacious. It is perfectly 
plain that those statutes had nothing to do with the power



18

of the federal court, for the unconstitutionality of those 
statutes, insofar as they applied to the case, was so patent 
as to raise a legal issue “ wholly insubstantial, legally 
speaking nonexistent” , 369 U. S. at 33.

Lower federal courts have had no difficulty in deciding 
that federal courts have power to enjoin racial discrimina­
tion by privately owned or operated public accommodations 
in which the state is to a significant extent involved.11 The 
decisions have generally been without discussion, but ab­
sence of discussion does not mean absence of decision. In 
Coke v. City of Atlanta, 184 F. Supp. 579 (N. D. Ga. 1960), 
a suit to desegregate a leased airport restaurant, the de­
fendants were both public and private parties. The court 
held, “ This Court has jurisdiction of this cause by virtue 
of the provisions of Title 28, U. S. C. §1343 and Title 42, 
U. S. C. §1983.” Id. at 583. See also, Plummer v. Casey, 
148 F. Supp. 326, 327 (S. D. Tex. 1955).

It is axiomatic that the jurisdiction of federal courts is 
always under scrutiny. It is wholly unrealistic to assume 
that the innumerable federal courts that have enjoined 
discrimination by private parties closely associated with 
the state have done so on the blind assumption that juris­
diction was present. Rather, it would appear that the issue 
is so well settled that extended discussion would be super­
fluous.

11 Adams v. City of New Orleans, 208 F . Supp. 427 (E . D. La. 
1962), aff’d 321 F. 2d 493 (5th Cir. 1963) (leased restaurant in 
municipal airport); Herrington v. Plummer, 240 F . 2d 922 (5th 
Cir. 1956), cert, denied 353 U. S. 924 (leased cafeteria in court­
house) ; City of Greensboro v. Simkins, 246 F . 2d 425 (4th Cir. 
1957), affirming 149 F. Supp. 562 (M. D. N. C. 1957) (leased golf 
course) ; Coke v. City of Atlanta, 184 F. Supp. 579 (N. D. Ga. 
1960) (leased restaurant in Municipal airport); Simkins v. Moses 
H. Cone Memorial Hospital (4th Cir., No. 8908, November 1, 1963) 
(hospital receiving government fu n d s); Hampton v. City of Jack­
sonville, 304 F . 2d 320 (5th Cir. 1962), cert, denied 371 U. S. 911 
(golf course in which city had reversionary interest).



19

The Civil Rights Acts and corresponding jurisdictional 
statutes were intended to empower federal courts to guar­
antee constitutional rights. They should be so construed. 
Specifically, the term “ under color of any State law, statute, 
ordinance, regulation, custom or usage” must be construed 
to impose a requirement which may be satisfied by the same 
pervasive governmental involvement which satisfies the re­
quirement of “ state action.” This is the most natural and 
reasonable construction of the term, for if the State is so 
involved in the motel as to render the motel’s actions im­
putable to the State, then the motel’s actions must be under 
color of State law, statute, ordinance, regulation, custom 
or usage.

Respectfully submitted,

A von N. W illiams, Jr.
Z. A lexander Looby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

A. W . W illis

588 Vance Avenue 
Memphis, Tennessee

Jack Greenberg

Constance Baker Motley

F rank H. H effron 
Suite 2030 
10 Columbus Circle 
New York, New York, 10019

Attorneys for Plaintiff-Appellee