City of Kansas City, Missouri v. WIlliams Brief for Respondents in Opposition

    (Emsrt of tlti' UnftoJt Stales
October Term, 1953

IN  THE

No. 203

CITY OF KANSAS CITY, MISSOURI, A Municipal 
Corporation, et al.,

Petitioners, 
v.

ESTHER WILLIAMS, et al.,

On P etitio n  foe. W rit  of Certiorari to t h e  U nited  S tates 
Court of A ppeals for t h e  E ig h t h  C ircu it

BRIEF FO R  RESPONDENTS IN OPPOSITION

R obert L. Carter,
Carl R . J o hnson , 
T hurgood M arshall, 

Attorneys for Respondents.

D avid E . P in sk y ,
of Counsel.

Supreme P rinting Co., I nc., 41 M urray Street, N. Y., BArclay 7-0349



1ST TH E

S>vtpxm t ( ta r t  nf %  luttrfr B M xb
O ctober Term , 1S53 

No. 203

------- ----------- 0--- -------- ----- -—
C ity  of K ansas. C ity , M issouri, A Municipal 

Corporation, et al.,
Petitioners, 

v.

E sther  W illiam s , et al.

On P etitio n  for W r it  of Certiorari to t h e  U nited  S tates 
Court of A ppeals for t h e  E ig h t h  C ircu it

■—  --------------------- ---------- 0 -------------------------------------

BRIEF FO R  RESPONDENTS IN O PPO SITIO N

O pinions Below

The opinion of the District Court (R. 24-44) is reported 
at 104 F. Supp. 848. The opinion of the Court of Appeals 
(R. 92-101) is not yet officially reported — F. 2d —.

Jurisdiction.

The jurisdictional requisites are adequately set forth in 
the petition.

Q uestion Presen ted

Whether the Fourteenth Amendment requires that peti­
tioners admit respondents and all other Negroes similarly



2

situated to the use of the public wading, swimming and div­
ing facilities afforded at Swope Park subject only to the 
same rules, and regulations applicable alike to all other 
persons?

S tatem ent

Respondents began this action in the district court seek­
ing to enjoin petitioners from refusing to admit them to 
the wading, swimming and diving facilities at Swope Park 
solely because of their race and color. A trial on the merits 
took place on February 15,1952 (R. 61 et seq.), and on April 
18, 1952, the district court entered a memorandum opinion, 
including findings of fact and conclusions of law (R. 24-44) 
104 F. Supp. 848. On May 7,1952, a final decree was entered 
in respondents’ favor restraining petitioners from refusing 
to admit them to Swope Park Pool and “ all facilities oper­
ated in connection therewith because of their race and 
color” (R. 46-47). The Court of Appeals affirmed the 
judgment of the district court (R. 92-101). Petitioners now 
seek review of that judgment on certiorari in this Court.

ARGUMENT

I.

Petitioners have m ade no show ing th a t the  tria l 
court w as in e rro r in concluding th a t respondents w ere 
no t afforded equal facilities for swim m ing enjoym ent.

The issue as raised and presented in the present posture 
of this case is too well settled to warrant review by this 
Court on certiorari. The decision of the court below that 
petitioners have denied respondents substantial equality 
with respect to public recreational facilities, as required by



3

the Fourteenth Amendment, is amply supported by the 
record adduced at the trial of this cause (R. 33-35, 75).

None of these evidentiary facts which are set forth in 
the memorandum opinion of the trial court (R. 25, 26, 27, 
30, 34) are in dispute. Thus, petitioners do not purport to 
■seek review of the evidentiary bases on which the judgment 
in this case rests. Petitioners .merely state in effect that 
while the trial court has the correct facts, its conclusions 
are in error.

The undisputed evidentiary facts may be summarized 
as follows: Swope Park is the main outdoor recreational 
center of Kansas City. I t is composed of some 1800 acres, 
contains a bathhouse, swimming pool, two golf courses, zoo, 
a theatre, band pavilion, picnic shelter and facilities. All of 
these facilities, except the swimming pool, are open to 
Negroes and white persons alike. The swimming pool, 
restricted to white persons, was constructed at a cost of 
$534,544.40. I t is divided into three separate parts— 
swimming pool, diving pool and wading pool. Three 
thousand persons may be accommodated at the same time, 
and there is no time limit on the individual’s use of the pool 
during the hours when it is open to the public. A refresh­
ment concession is operated in connection with the pool; 
there is a sun beach, automatic dryers, and a separate 
bath house. A fee for admission is charged.

The Parade Park Pool cost $60,000, and there are no 
separate facilities for diving, swimming and wading, no 
automatic dryers, no sun beach, no refreshment concession, 
and no admission charge. It can only accommodate 250 
people at a time, and its size is such that a time limit has 
to be set on each person’s use of the pool.

On the basis of these facts, the trial court concluded 
that the Parade Park Pool did not afford respondents 
facilities for enjoyment of swimming equal to those avail­



4

able at the Swope Park Pool. The facts would seem to 
warrant that conclusion. Petitioners attempt to modify 
these differences by emphasizing such factors as the acces­
sibility of Parade Park Pool to those residential areas where 
the Negro population is concentrated and the high percent­
age of Negroes using Parade Park Pool as compared with 
the low percentage of white population attracted to Swope 
Park Pool. This, however, is patently beside the point. 
The rights which respondents asserted are individual, 
Sweatt v. Painter, 339 U. S. 629. What must be determined 
is whether the individual, not the group, is afforded equal 
protection. Thus, those factors involving group advantages 
or disadvantages cannot be determinative of the issues in 
this case. The court below was required to disregard such 
factors in order to conform to the rulings of this Court, 
and quite properly refused to take such irrelevant and 
extraneous matters into account in deciding this case.

I I .

R espondents have been  den ied  equal trea tm en t.

The Court of Appeals found that respondents, in being- 
denied use of the Swope Park Pool, were denied equal 
treatment in the use and enjoyment of Swope Park Pool 
for the purposes for which it was designed—a center for 
recreational activities. The appellate court took a broader 
view of the question than did the trial court. It found 
that the public was encouraged to make use of Swope Park 
as a comprehensive outlet for recreation. One could picnic, 
lounge, play golf, go to theatre, visit a zoo, and Negroes 
were admitted to the Park to enjoy these facilities. How­
ever, the swimming pool which was a part of the compre­
hensive recreational program offered at the Park was off 
limits for Negroes. The court, viewing Swope Park in 
terms of the function it was designed to perform, concluded



5

that Negroes having been admitted to the Park were denied 
equal treatment in not being permitted to use all of its 
facilities on the same basis as all other persons. White 
people could go to Swope Park and indulge in its variety 
of recreational offerings, including use of the swimming 
pool. Negroes, on the other hand, could go to the park and 
indulge in all of its offerings except the swimming pool. 
Those desiring to swim had to leave Swope Park and go 
to Parade Park Pool on the other side of town. Without 
regard to a comparison of the two pools, on the basis of 
physical facilities alone, the court quite properly concluded 
that Negroes were not being accorded equal treatment with 
respect to the use and enjoyment for which Swope Park was 
designed. This, we think, is sound and accords with the 
rationale of this Court in McLcmrm v. Oklahoma State 
Regents, 339 U. S. 637.

Petitioners make no effort- to attack this reasoning but
take out of context the court’s statement that viewing the
case in this manner it was not necessary to make a detailed
comparison between the Parade Park Pool, some 4% to
6i/2 miles away with the Swope Park Pool on the basis of
mere physical facilities. The court was merely indicating
that the judgment of the trial court, enjoining petitioners
from refusing to admit respondents to the Swope Park
Pool on the basis of their race and color, could be sustained
without regard to the superiority of the Swope Park Pool
with respect to physical facilities. The Court of Appeals,
however, did not stop there. It went on to point to physical
differences between the two pools and concluded that such *
differences made it impossible for it to conclude that the 
trial court was in error in deciding that respondents could 
not enjoy equal facilities for swimming at the Parade Park 
Pool. In short, the court’s opinion indicates that judg­
ment for respondents could be rendered without a com­
parison of physical facilities, under the rationale it adopted 
which it preferred as a sounder approach to decision in



6

this case. However, if physical differences alone were 
regarded as proper basis for decision, its opinion clearly 
shows that it finds ample justification for judgment for 
respondents on that ground.

CONCLUSION

It IS  respectfu lly  subm itted  th a t no basis for review  
of th is judgm ent exists and  th e  petition  for certio rari 
should be denied.

R obert L . Carter,
Carr R . J o h nso n , 
T hurgood M arshall, 

Attorneys for Respondents.

D avid E. P in sk y ,
of Counsel.

Dated: August 21, 1953.



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