Holmes v. City of Atlanta Brief for Appellants

    Itttteit ©curt nf Appeals
For the Fifth Circuit

No. 15,267

ALFRED HOLMES, OLIVER W. HOLMES and 
DR. H. M. HOLMES,

Appellants,
v.

CITY OF ATLANTA, et  al.
Appellees.

A ppe a l  F rom  t h e  U n it e d  S tates D istr ic t  C ourt for  t h e  
N o r th er n  D istr ic t1 of G eorgia

BRIEF FOR APPELLANTS

E. E. M oore, J r .,
S. S. R o bin so n ,
R. E . T h o m a s , J r.,

175 Auburn Avenue, N. E., 
Atlanta, Georgia,

R obert L. Carter ,
J ack  G reenberg ,
T httrgood M a rshall ,

107 West 43rd Street,
New York, New York,

Attorneys for Appellants.

Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3 -  2320



lultpfc States Olourt af Appeals
For the Fifth Circuit

No. 15,267

A lfred  H o lm es , Oliver , W. H olm es and Dr, H. M. H olm es ,
Appellants,

v .

C ity  o p  A tlanta , et al.,
Appellees.

A ppea l  F rom  t h e  U n ited  S tates D ist r ic t  C ourt  for t h e  
N o r th er n  D ist r ic t  of G eorgia

-------------------- o--------------------

BRIEF FOR APPELLANTS

Statement

There is no dispute as to the relevant facts which are 
as follows:

On July 19, 1951, appellants sought to use the Bobby 
Jones Golf Course maintained and operated by the City 
of Atlanta, Georgia, as a public golf course but were refused 
permission to play by the attendant thereon, appellee, Billy 
Wilson, solely because of their race and color (R. 8). Fol­
lowing this refusal appellants, on July 23, 1951, sought per­
mission of the Park Commissioners through appellee, 
George I. Simons, General Manager of the Parks of the 
City of Atlanta, to use and enjoy the facilities of the five 
or more golf courses owned and operated by the City on an 
equal basis and subject to the same terms and conditions 
applicable to all other citizens without regard to race. 
Such permission was refused.



2

Complaint was thereupon filed in the court below on 
behalf of the named appellants and other Negroes sim ila rly  
situated. The complaint alleged a denial of rights under 
the Fourteenth Amendment, sought a declaratory judg­
ment, an injunction restraining appellees from denying 
appellants and other Negroes similarly situated solely 
because of race and color the right to use the public golf 
courses on the same terms as all other persons, and money 
damages (R. 1-15). Certain amendments to the complaint 
were filed on July 6, 1954 (R. 17). Appellees filed a motion 
to dismiss (R. 17), and a motion for a more definite state­
ment (R. 21), both of which were denied (R, 25). Appellees 
filed an answer (R. 28). Subsequent amendments to their 
answer (R. 32-35) resulted in the admission of relevant 
facts.

A hearing was held in the court below on July 6, 1954. 
Appellants dropped their claim for damages (R. 37) and 
appellees withdrew their demand for jury trial (R. 39). 
It was stipulated by and between the parties that appellants 
represented 150 Negroes living in Atlanta who are organ­
ized into a club or association desiring to play golf and 
that the named appellants were only Negroes who had 
sought admission to play golf (R. 40).

Appellees introduced testimony of appellee, George I. 
Simons, who testified that the Park Commission was seek­
ing land to set aside a golf course for Negroes but none 
had been found (R. 42); and that appellee, Wilson, was an 
employee of the city (R. 51).

On July 8, 1954, the Court filed findings of fact and con­
clusions of law and its judgment (R. 56-62). The Court 
found that the City “ as a part of public parks set aside 
for the exclusive use of white persons, owns and maintains 
and provides as public facilities seven golf courses” 
(R. 58); that due and proper application had been made 
by appellants for use of the public golf course and that they



3

had been refused (R. 58-59); and that money has been set 
aside to build a golf course for Negroes, but “ the land has 
not yet been purchased and that it will take at least twelve 
months to prepare a 9 hole golf course” (R. 59). The 
court below concluded that appellants had been denied their 
right to the equal protection of the laws secured under the 
Fourteenth Amendment to the Constitution of the United 
States.

The following judgment was then entered:
“ Considered, Ordered and Adjudged that the 

defendants, and each of them, their agents, em­
ployees and servants be, and they hereby are re­
strained and enjoined from refusing to allow plain­
tiffs and other negroes similarly situated, because 
they are negroes, to make use, on a substantially 
equal basis with white citizens of the municipal 
facilities for playing golf. The effect of this judg­
ment will for a reasonable time and until the further 
order of this Court, be postponed in order that the 
defendants may be afforded a reasonable oppor­
tunity to promptly prepare and put into effect regu­
lations for the use of the municipal golf facilities 
which, while preserving segregation, will be in full 
and fair accord with its principles. This principle 
is that the admissibility of laws separating the races 
in the enjoyment of privileges afforded by the State 
rest wholly upon the equality of the privileges which 
the laws give to the separated groups within the 
State. In applying this principle, that equality of 
treatment of white and colored citizens must be 
afforded which will secure to both, complete and full 
recognition, that, under the Constitution and laws, 
there are not two classes of citizens, a first and 
second, but one class, with all of equal rank in re­



4

spect of their rights and privileges to use and enjoy 
facilities provided at public expense for public 
use” (R. 61-62).

On July 29,1954, appellants seeking- to remove all doubts 
that the judgment entered was final and appealable filed 
in the court below a motion for a final judgment. On 
August 3, the court below ruled that the judgment was final 
and stated in part: “ * * * the Court being of the opinion 
that the judgment as entered is final and appealable, the 
Court- declines to enter a further order in the case at this 
time * *' Appellants, thereupon, on August 6 filed their 
notice of appeal (R. 63).

Specification of Errors

The trial court erred:
1. In refusing to rule that appellees were required by 

the Fourteenth Amendment of the Constitution of the 
United States to admit appellants and other Negroes simi­
larly situated to public golf facilities subject only to the 
same rules, regulations and conditions applicable to all 
other persons.

2. In failing to enjoin appellees from refusing to admit 
appellants and other Negroes similarly situated, without 
more, to the Bobby Jones Golf Course and all other public 
golf course facilities subject only to the same rules, regula­
tions and conditions applicable to all other persons.



5

ARG UM ENT

The s ta te  has no pow er u n d e r th e  Fourteenth  
A m en d m en t to  su b jec t N egroes because  o f race and  
color to  rules, reg u la tio n s  or cond itions d ifferen t from  
those  ap p licab le  to  all o th e r persons w ith  resp ect to the 
use an d  en joym en t o f pub lic  go lf facilities.

The City of Atlanta is now maintaining and operating 
a number of golf courses for public use and refuses to admit 
Negroes to any of these golf courses solely because of race 
and color. Thus all the golf courses maintained by the 
City for the public are not available for use by appellants 
and other Negroes similarly situated. There is no question 
but that this is a violation of appellants ’ rights and appel­
lees ’ obligations under the Fourteenth Amendment to the 
Constitution of the United States. Beal v. Holcombe, 193 
F. 2d 384 (CA 5th 1951). While the state is under no 
obligation to provide golf facilities for the public, once it 
does so it must provide such facilities without discrimina­
tion based upon race or color. Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337. It is also elemental that laws requir­
ing sepai ation ot the races can provide no defense under 
these circumstances because the admissibility of such laws 
is dependent upon equality of facilities available. Missouri 
ex rel. Gaines v. Canada, supra. Appellants, therefore, 
were clearly entitled to an injunction restraining appel­
lees from refusing to admit them to parks to play golf 
where other persons were being admitted, and they were 
entitled to such injunctive relief at once. The rights they 
were seeking to enforce are personal and present, Missouri 
.ex rel. Gaines v. Canada, supra; Sweatt v. Painter, 339 
U. S. 629; McLaurin v. Oklahoma State Regents, 339 U. S. 
637, and appellants are entitled to the use and enjoyment of 
public golfing facilities as soon as such facilities are made 
available to other persons. Sipuel v. Board of Regents, 332



6

U. S. 631. Since no golfing facilities for Negroes were or 
are now available, appellants were entitled to the declara­
tory judgment and injunctive relief prayed for in their 
complaint. See Sweatt v. Painter, supra; Williams v. 
Kansas City, 104 F. Supp. 848 (W. D. Mo. 1952), aff’d, 205 
F. 2d 47 (CA 7th 1953), cert, denied, 346 U. S. 826.

The trial court’s opinion and judgment raises the ques­
tion of the validity of and application of the ‘1 separate but 
equal” doctrine in this area. We take the position that the 
state has no power under the Fourteenth Amendment to 
regulate or condition the use of public golf facilities on the 
basis of race and color. In our view appellants are en­
titled to use the golf facilities at once and without being 
subjected to racial segregation of any kind. We think, 
Sweatt v. Painter, supra; McLaurin v. Oklahoma State 
Regents, supra; Brown v. Board of Education, 347 II]. S. 
483; and Bolling v. Sharpe, 347 U. S. 497, are applicable, 
and as such bar segregation in this area.

It should be noted that the “ separate but equal” doc­
trine, while it had widespread and apparent unlimited 
application under decisions of lower federal and state 
courts, was applied by the United States Supreme Court 
at most in only two areas—intrastate commerce, Plessy v. 
Ferguson, 163 U. S. 537, and education, Gong Lum v. Rice, 
275 U. S. 78. Now the Court has repudiated the doctrine in 
the field of public education, and Morgan v. Virginia, 328 
U. S. 373; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 
and Henderson v. United States, 339 U. S. 816, have weak­
ened the doctrine’s application in intrastate commerce.

In the Brown case, the Court concluded that separate 
educational facilities were inherently unequal. It found 
that separation of children in the schools generated a feel­
ing of inferiority as to their status in the community that 
may affect their hearts and minds in a way unlikely ever 
to be undone. The Court’s finding of injury resulting from 
segregation was based upon psychological and sociological



7

findings, but the authorities cited, in support of this con­
clusion, in no way limit their finding as to segregation’s 
injury to the field of public education alone.1

In the Bolling case, the Court found that
“ Classifications based solely upon race must be 

scrutinized with particular care since they are con­
trary to our traditions and hence constitutionally 
suspect * * #

“ Although the Court has not assumed to define 
‘liberty’ with any great precision, that term is not 
confined to mere freedom from bodily restraint. 
Liberty under law extends to the full range of con­
duct which the individual is free to pursue, and it 
cannot be restricted except for a proper govern­
mental objective. Segregation in public education is 
not reasonably related to any proper governmental 
objective, and thus it imposes on Negro children of 
the District of Columbia a burden that constitutes 
an arbitrary deprivation of their liberty in viola­
tion of the Due Process Clause.”

1 The Court cited the following authorities: K. B. Clark, Effect 
of Prejudice and Discrimination on Personality Development (Mid­
century White House Conference on Children and Youth, 1950) ; 
Witmer and Kotinsky, Personality in the Making (1952), c. VI; 
Deutscher and Chein, The Psychological Effects of Enforced Segre­
gation: A Survey of Social Science Opinion, 26 J. Psychol. 259 
(1948) ; Chein, What are the Psychological Effects of Segregation 
Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Atti­
tude Res. 229 (1949); Brameld, Educational Costs, in Discrimina­
tion and National Welfare (Mclver, ed., 1949), 44-48; Frazier, The 
Negro in the United States (1949), 674-681. And see generally 
Myrdal, An American Dilemma (1944).

A reading of these authorities clearly shows that their conclusions 
relate to segregation as a whole.



8

Taking these two decisions together it seems clear that 
the City of Atlanta may not regulate the time and manner 
in which appellants and other Negroes similarly situated 
may use its public golf facilities based upon their race and 
color, but must make the facilities open and available to 
them on the same basis as they are open to other people.

There are no decisions by the United States Supreme 
Court approving the “ separate but equal” doctrine in the 
field of public recreation. Indeed, the only action by the 
Supreme Court touching this question indicates the Court’s 
belief that its decisions with respect to the scope and 
breadth of “ equal protection” and “ due process” in other 
areas has bearing on that question in the field of public 
recreation. Rice v. Arnold, 45 So. 2d 195 (Fla. 1950), judg. 
vacated and remanded, 340 U. S. 848, judg, aff’d, 54 So. 
2d 114 (1951), cert, denied, 342 U. S. 946; Sweeney v. 
Louisville, 102 F. Supp. 525 (W. D. Ky. 1951), aff’d per 
curiam sub nom. Muir v. Louisville Park Theatrical Assn., 
202 F. 2d 275 (CA 6t,h 1953, judg. vacated and remanded, 
347 U. S. 971.

Rice v. Arnold raised the same question raised here— 
the right of Negroes to use city owned and operated golf 
links under the same rules and conditions applicable to all 
other persons. The Supreme Court, after decisions in the 
Sweatt and McLaurin cases in 1950, granted certiorari, 
vacated the judgment below and remanded the cause for 
reconsideration in the light of the Sweatt and McLaurin 
decisions. On remand the Florida Supreme Court re­
affirmed its prior judgment and stated that in any event 
petitioner had misconceived his remedy, and that if he 
sought to challenge the reasonableness of the judgment, the 
proper procedure would have been a bill for declaratory 
judgment. It was on this state procedural ground that the 
Supreme Court based its refusal to grant certiorari when 
the case again reached the Supreme Court. Justices Black



9

and Douglas were of the opinion that certiorari should be 
granted.

In the Muir case a private theatrical organization oper­
ating in a public amphitheater was held both by the trial 
court and the Court of Appeals to be outside the reach of 
the Fourteenth Amendment when question was raised con­
cerning its policy of racial discrimination. The Supreme 
Court, however, granted certiorari, vacated the judgment 
and remanded the cause for “ consideration in the light of 
the Segregation Cases * * * and conditions that now pre­
vail. ’ ’2 These instances are certainly evidence that the 
Court does deem the segregation cases have application in 
the field of public recreation.3

It is very strained legal reasoning indeed which finds 
power in a state under the Fourteenth Amendment to re­
quire segregation with respect to public golf facilities and 
yet attempts to be consistent with the Supreme Court’s find­
ing of the absence of such power under both the equal pro­
tection clause of the Fourteenth Amendment and the due 
process clause of the Fifth Amendment with respect to pub­
lic education. Whatever the present status of the ‘ ‘ separate* 
but equal” doctrine in the United States Supreme Court, 
it is clear that public recreation is closer to public eduea-

2 On March 9, 1954, the Board of Directors of the Louisville Park 
Theatrical Assn, changed their policy and decided to sell tickets to 
the public without distinctions based upon color. For this reason
on remand the Court of Appeals, -----  F. 2d ------, on October 14,
1953 vacated its judgment and terminated the cause as moot.

3 The other cases in which the question of racial segregation in 
public recreational facilities was present were not reversed. Boyer V. 
Garrett, 183 F. 2d 582 (CA 4th 1950) (segregation upheld), cert, 
denied, 340 U. S. 912 (1951) (filed too late) ; Williams v. Kansas 
City, supra (injunction barring segregation in effect issue), cer­
tiorari was denied; Beal v. Holcombe, supra (the judgment was for 
plaintiff but conceded state’s right to maintain segregation). Cer­
tiorari denied on application of the state.



1 0

tion than to intrastate commerce and is more likely to be 
governed by law affecting public education than doctrines 
with respect to transportation facilities.

Conclusion

For reasons hereinabove stated, we respectfully submit 
that the judgment of the court below should be reversed and 
modified insofar as it gives appellees the right to subject 
the use of the public golf courses to rules, regulations and 
conditions which would preserve racial segregation.

E. E. M oore, J r .,
S. S. R o bin so n ,
R . E. T h o m a s , J r .,

175 Auburn Avenue, N. E., 
Atlanta, Georgia,

R obert L. Carter ,
J ack  G reen berg ,
T htjrgood M a rshall ,

107 West 43rd Street,
New York, New York,

Attorneys for Appellants.