Smith v Hampton Training School for Nurses Appellants Brief

    In the

U n ite d  S ta te s  (U n u rt n f A p p e a ls
F ob the F ourth Circuit

No. 10,312

M ildred M. S m ith , A gnes L. S tokes, and 
Patricia L. Taylor,

Appellants,
v.

H ampton T raining S chool for Nurses,
a corporation, et al.,

Appellees.

ON APPEAL FROM TH E  UNITED STATES DISTRICT COURT FOR TH E 
EASTERN DISTRICT OF VIRGINIA, NEW PORT NEW S DIVISION

APPELLANTS’ BRIEF

Jack Greenberg 
Derrick A. B ell, Jr.
M ichael M eltsner

10 Columbus Circle 
New York, New York

W illiam A lfred S mith 
17 East Lincoln Street 
P. 0. Box 242 
Hampton, Virginia

Attorneys for Appellants



I N D E X

PAGE
Statement of the Case ...................................................... 1

Questions Presented .......................................................... 4

Statement of Facts ...........................................................  4

A rgument—

I—The Court below erred in dismissing the complaint 
on the ground that Negro nurses are without con­
stitutional rights if discharged solely on account 
of race by a Hill-Burton Hospital prior to the 
date of this Court’s decision in Simkins v. Moses
H. Cone Memorial Hospital (November 1, 1963) .. 10

A. The Constitutional Rights of the Nurses Ex­
isted Prior to November 1, 1963 ......................  11

B. Simkins v. Moses H. Cone Memorial Hospital
Applied, Rather Than Reversed, Prior Law .... 12

C. Dixie Hospital Was Specifically Obliged Not to
Discriminate on the Basis of Race as Early as 
1956 .........................................................................  16

D. Even if Simkins Reversed Prior Law it Would
Apply to the Nurses ............................................  18

II—Negro nurses, racially discharged from a Hill-Bur­
ton Hospital, prohibited from discrimination by 
the Fifth and Fourteenth Amendments, are en­
titled to injunctive relief ordering reinstatement 
with back pay ............................................................ 23

Conclusion 32



11

Admiral Corp. v. Admiral Employment Bureau, 161
F. Supp. 629 (N. D. 111. 1957) ...................................... 31

Alexander v. Hillman, 296 U. S. 222 ............................ 30,31
Alston v. School Board of City of Norfolk, 112 F. 2d

992 (4th Cir. 1940) .........................................................  28
Agwilines, Inc. v. National Labor Relations Board, 87 

F. 2d 146 (5th Cir. 1936) .............................................. 30

Bolling v. Sharpe, 347 U. S. 497 ......................................  18
Bradley v. School Board of the City of Richmond........ 29
Bridges v. Hampton Training School for Nurses ........ 8
Brown v. Board of Education, 347 U. S. 483 ....11,18, 20, 25 
Burton v. Wilmington Parking Authority, 365 U. S.

715 ............................................................13,14,15,16,20,25

Caddington v. United States, 178 F. Supp. 604 (Ct.
Cl. 1959) ...........................................................................  28

Cat’s Paw Rubber Co. v. Barlo Leather & Findings Co.,
12 F. R. D. 119 (S. D. N. Y. 1951) ..............................  10

Chappell & Co. v. Palermo Cafe Co., 249 F. 2d 77
(1st Cir. 1957) ...............................................................  31

Coca Cola Co. v. Old Dominion Beverage Corp., 271 F.
600 (4th Cir. 1921) .........................................................  31

Colorado Anti-Discrimination Comm. v. Continental
Airlines, 372 U. S. 714 .................... .....................H , 18, 25

Conley v. Gibson, 355 U. S. 41 ..........................................  27
Cooper v. Aaron, 358 U. S. 1 ............................................ 14
Cramp v. Board of Public Instruction, 368 U. S. 278 .... 25 
Crane Co. v. Crane, 157 F. Supp. 293 (W. D. Ga. 1957) 31

Dartmouth College v. Woodward, 4 Wheat. 518 ...........  16
Daub v. United States, 292 F. 2d 895 (Ct. Cl. 1961) .... 28 
Dawson v. Mayor and City Council of Baltimore, 350 

IT. S. 877 ...................................................

PAGE

18



Ill

Dixon v. Alabama State Board of Education, 294 F. 2d 
150 (5th Cir. 1961) cert, denied 368 U. S. 930 ........... 29

Eaton v. Grubbs, 261 F. 2d 521 (4th Cir. 1958) ....14,15,29
Eaton v. Janies Walker Memorial Hospital, 329 F. 2d 

710 (4th Cir. 1964) ....................................13,14,15, 20, 25

PAGE

Eskridge v. Washing-ton, 357 U. S. 214..........................  22
Ettelson v. Metropolitan Life Ins. Co., 137 F. 2d 62 

(3rd Cir. 1943) cert, denied 320 U. S. 777 ................... 31

Flemming v. South Carolina Electric and Gas Co., 239 
F. 2d 277 (4th Cir. 1956) ..............................................18,19

Gayle v. Browder, 350 U. S. 903 ......................................  18
Gideon v. Wainwright, 372 U. S. 325 ..............................  22
Gilliam v. School Board of City of Hopewell ............... 29
Great Northern R. Co. v. Sunburst Oil & Refining Co.,

287 U. S. 358 ...................................................................  19
Greene v. McElroy, 360 U. S. 474 ..................................  27
Griffin v. Illinois, 351 U. S. 1 2 ..........................................  22
Griffin v. School Board of Prince Edward County, 377 

U. S. 218 .........................................................................  30

Hampton v. City of Jacksonville, 304 F. 2d 320 (5th
Cir. 1962) ....................................................................... 13,15

Hirabayashi v. United States, 320 U. S. 81 ................... 30
Hirsch v. Glidden Co., 79 F. Supp. 729 (S. D. N. Y. 

1948) ................................................................................. 31

Jordan v. Hutcheson, 323 F. 2d 597 (4th Cir. 1963) .... 24

Khoury v. Community Memorial Hospital, Inc., 203
Va. 236, S. E. 2d 533 (1962) .....................................15,16

Knight v. State Board of Education, 200 F. Supp. 174 
(M. D. Tenn. 1961) 29



IV

Linkletter v. Walker, 381 U. S. 618 ........................ 21,22,29

McNeese v. Board of Education, 373 U. S. 668 ............. 28
Monroe v. Pape, 365 U. S. 167.......................................... 28
Mapp v. Ohio, 367 U. S. 643 ....................................21, 22, 28
Mosser v. Darrow, 341 U. S. 267 ....................................  19
Muir v. Louisville Park Theatrical Assn., 347 U. S.

971 ....................................................................................  18

PAGE

N. L. R. B. v. Jones & Laughlin S. Oorp., 301 U. S.
47 .................................................................................... 27,30

Peterson v. Greenville, 373 U. S. 244 ..............................  12

Rackley v. Orangeburg School District No. 5 (No. 8458,
E. D. S. C.) ...................................................................  29

Schware v. Board of Bar Examiners, 353 U. S. 232 .... 25
Service v. Dulles, 354 U. S. 365 ......................................  26
Simkins v. Moses H. Cone Memorial Hospital, 323 F.

2d 959 (4th Cir. 1963) ...................... 3, 4,10,11,12,14,15,
16,17,18,19, 20, 21, 

22, 23,25, 29
Smith v. Allwright, 321 U. S. 649 ................................12,19
Slochower v. Board of Education, 350 U. S. 551 ........... 27
Steele v. Louisville & N. R. Co., 323 U. S. 192..............  27

Thomas v. United States, 289 F. 2d 948 (Ct. Cl., 1961) 27
Todd v. Joint Apprenticeship Committee of Steel 

Workers, 223 F. Supp. 12 (N. D. Til. 1963), vacated
on other grounds, 332 F. 2d 243 (7th Cir. 1964) .... 27

Toreii (i v. Walkins, 367 U. S. 13S 25

Vitarelli v. Seaton, 359 U. S. 353 27



V
PAGE

Wickersham v. United States, 201 U. S. 392 ................. 27
Wieman v. Updegraff, 344 U. S. 183 ..............................  25
Williams v. Sumter School District No. 2 (No. 1534

E. D. S. C.) ............................................................. .......  29
Wolf v. Colorado, 338 U. S. 25 ......................................21, 28
Woods v. Wright, 334 F. 2d 369 (5tli Cir. 1964) ........... 29

T able of S tatutes and R egulations

28 U. S. C. §1343 ( 3 ) ...........................................................  2

42 U. S. C. 291e(f) 1958 ed.................................... 10,16,17,18

42 U. S. C. §1981.................................................................  2

42 U. S. C. §1983 (RS §1979) ............................................2, 28

42 U. S. C. §§2000(d) .......................................................... 17

National Labor Relations Act of 1935, §10(c) ............... 30

42 CFR §53.111 ...................................................................  17

42 CFR §53.112 ..................................................... 10,16,17,18

Federal Rules of Civil Procedure, Rule 12(b)(6) ........ 2

Federal Rules of Civil Procedure, Rule 3 8 .................... 2,31

Federal Rules of Civil Procedure, Rule 52(b) .............. 3

Federal Rules of Civil Procedure, Rule 54(c) ..............  26



I n  the

Mttiteii S ta te s  (Hm trt at A p p e a ls
F or the F ourth Circuit 

No. 10,312

M ildred M. S m ith , A gnes L. Stokes, and 
Patricia L. T aylor,

Appellants,
v.

H ampton T raining S chool for N urses, 
a corporation, et al.,

Appellees.

ON APPEAL FROM TH E  U N ITED  STATES DISTRICT COURT FOR TH E 
EASTERN DISTRICT OF VIRGINIA, NEW PORT NEW S DIVISION

APPELLANTS’ BRIEF

Statement of the Case

This is a suit for an injunction ordering the Dixie 
Hospital of Hampton, Virginia, to reinstate, with back 
pay, three Negro nurses who were dismissed from employ­
ment solely because they dined in the Hospital’s white- 
employee cafeteria (4a, 11a).

The complaint was filed in the United States District 
Court for the Eastern District of Virginia, May 25, 1964, 
along with motion for preliminary injunction alleging that 
August 9, 1963 appellants, three Negro nurses employed 
by the Hospital, ate lunch in the main cafeteria, reserved 
for white persons only, and for this reason were summar­
ily dismissed (6a-8a). Alleging that the Dixie Hospital



2

has received, and is receiving, federal funds under the Hill- 
Burton Program, the nurses brought this action pursuant 
to 28 U. S. C. §1343(3) and 42 U. S. C. §1983 to secure 
relief for deprivation of rights guaranteed by the due 
process and the equal protection clauses of the Fourteenth 
Amendment and the due process clause of the Fifth Amend­
ment to the Constitution of the United States and 42 
U. S. C. §1981 (4a, 5a, 10a). As defendants, the complaint 
named administrators of the Hospital, the corporate entity, 
and officers and directors of the corporation (5a, 6a).

On June 17, 1964, the Hospital filed an answer which 
admitted participation in the Hill-Burton Program and 
dismissal of the nurses because by eating in the white 
cafeteria they violated Hospital “ rules” , but contested that 
constitutional rights of the nurses were denied (15a-18a).

Interrogatories submitted by the nurses were answered 
by the Hospital July 24, 1964 (26a, 30a). On January 18, 
1965, the district court held an initial pre-trial conference 
and set the case for trial July 27, 1965 (35a). Also on 
January 18, the Hospital demanded a jury trial for all 
the triable issues pursuant to Rule 38(d) of the Federal 
Rules of Civil Procedure (37a). Motion to strike the Hos­
pital’s demand for a jury trial was filed by the nurses on 
February 15, 1964.

On April 14, 1965, the Hospital filed a motion to dismiss 
pursuant to Rule 12(b)(6) of the Federal Rules of Civil 
Procedure asserting that the complaint failed to state a 
claim upon which relief can be granted (40a). On July 20, 
1965, the district court filed an opinion considering the 
motion and, on August 20, 1965, entered an order dismiss­
ing the action on the basis of the opinion (41a-48a, 54a). 
The opinion is reported at 243 F. Supp. 403.



3

Treating the motion to dismiss as a motion for “ sum­
mary judgment on the pleadings” , the court granted it, 
“dismissing the action at the costs of the plaintiffs” on 
the ground that, at the time they were discharged, the 
nurses were without constitutional rights to non-racial 
treatment:

. . . public policy dictates that, whatever may be the 
rights of a Negro discharged from employment fol­
lowing the decision in Simkins by the Court of Appeals 
and the subsequent denial of certiorari, together with 
the passage of the Civil Rights Act of 1964, no rights 
are created which should be accorded retrospective 
effect (46a).

In addition, the court found that even if the nurses had 
constitutional rights to non-racial treatment they could not 
seek reinstatement, with back pay, but could only main­
tain an action for damages (47a).

On August 2, 1965, subsequent to receipt of the July 20, 
1965 opinion, but prior to the entry of an order, appellants 
moved the court, pursuant to Rule 52(b) of the Federal 
Rules of Civil Procedure, to amend its findings of July 20, 
1965, and, in light of such amendments, to reconsider its 
decision (49a-53a). Exhibits and affidavits were attached 
in support of the motion (54a-82a). On September 7, 1965, 
the court denied the motion.1

1 In denying the August 2, 1965 motion the court stated that the 
motion was one to reconsider the July 20, 1965 decision and not a 
motion to amend findings pursuant to Rule 52(b) o f the Federal Rules 
o f Civil Procedure and that it had entered an order granting summary 
judgment (August 20, 1965) with no reference to the August 2, 1965 
motion because the court had not been sent a copy o f the motion by 
appellants’ counsel at the time the motion was filed with the clerk (55a, 
56a). However, the court denied the motion on the merits stating: 
“ Irrespective o f the affidavits and exhibits attached to the ‘Motion,’ the 
fundamental principles guiding the Court’s decision are not altered”  (84a, 
85a).



4

Notice of appeal to this Court from the August 20, 1965 
and September 7, 1965 orders of the district court was 
filed September 17, 1965 (86a).

Questions Presented

1. Whether three Negro nurses may be denied employ­
ment on the basis of race at a non-profit, Hill-Burton Pro­
gram, hospital, subject to the restraints against racial dis­
crimination of the Fifth and Fourteenth Amendments, on 
the ground that their racial discharge from employment 
took place August 9, 1963 px-ior to this Court’s decision 
in Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 
959 (November 1, 1963).

2. (a) Whether Negro nurses discharged on account of 
race in violation of the Fifth and Fourteenth Amendments 
are entitled to an injunction ordering reinstatement, with 
back pay, or must maintain an action for damages before 
a jury; (b) Whether the prayer of the nurses for back pay 
from the time of the unconstitutional discharge must be 
submitted to a jury.

Statement of Facts

In 1958, the Dixie Hospital, a non-profit, tax-exempt 
facility and the only hospital in Hampton, Virginia, con­
structed a new hospital building with the assistance of 
over 1.7 million dollars received from the United States 
pursuant to the Hill-Burton Act, 42 U. S. C. §§ 291 et seq. 
(5a, 15a, 21a, 30a). The building housed a spacious cafe­
teria, complete with glass urall overlooking a scenic view 
of Chesapeake Bay and a seating capacity of approxi­
mately 200 (73a). White employees, regardless of rank or



5

station, dined in the cafeteria; white visitors were per­
mitted to eat there. Negro employees, however, were not 
free to eat in the cafeteria (7a, 16a-18a, 32a, 42a, 73a, 74a).

At the time the new building was opened a room had 
been set aside in the basement of the Hospital, across 
from the kitchen, for the use of Negro employees (6a, 
74a). Almost a year later, after several complaints, Negro 
employees were permitted to eat in a small converted class­
room situated down the hall from the main cafeteria (74a). 
In order to dine in this room Negro employees had to 
telephone their orders for food service to the cafeteria and 
wait until the food was delivered to the room set aside 
for their use. This procedure resulted in cold food and 
delays which exhausted the 30 minute lunch period (74a).

Nurse Mildred Smith describes subsequent events: 
“After several months of this practice, many of us signed 
and prepared a petition to the director of the hospital 
complaining about the eating facilities provided for Negro 
personnel. A meeting was held with the director of nurses 
and William C. Walton, the administrator of Dixie Hos­
pital, at which time Mr. Walton said he would present 
the matter to his board and give us a response within a 
month. At this meeting, Mr. Walton was insulting and 
indicated that we Negroes did not know when we were 
well off, that we were second class citizens, and that before 
coming to Virginia he had never called Negroes Mister or 
Mrs. No board action on our petition was ever reported 
to us.

“In May 1963 after more complaints, Negro nurses were 
permitted to pass through the main cafeteria line, but 
were forced to continue eating their meals in a small room 
located approximately 50 feet down the hall from the 
cafeteria. This room is a converted classroom and seats



6

perhaps 35 people. Because there are over 100 Negro 
personnel who must eat there, the room is frequently- 
crowded and persons must wait their turn for available 
chairs. This, combined with the necessity of leaving the 
main cafeteria and walking to the small room, necessitates 
rushing our lunch which frequently causes distress and a 
decrease in efficiency for the rest of the working day. 
In addition, the humiliation we experience when we see 
white persons, some of them maintenance personnel in 
dirty working clothes, seated in the main cafeteria while 
we are forced to leave because of our race, is impossible 
to explain” (74a-75a).

On August 8, 1963, Mrs. Smith, nurses Taylor and Stokes 
and another Negro employee ate their lunch in the main 
cafeteria instead of carrying their food down the hall to 
the “ Negro dining room” (7a, 75a). Thereafter, they were 
reprimanded for eating in the white-only cafeteria and 
cautioned not to do so again by the assistant administrator 
of the Hospital, Mr. Edward Bennett (17a). He informed 
them that their presence in the main cafeteria violated 
Hospital “ rules” and that “ so long as they were employees 
of Dixie Hospital they would have to abide by such rules” 
(17a).

The following day, August 9, 1963, the three nurses, 
along with two other Negro employees, again took their 
food from the serving line to a table in the cafeteria in­
stead of carrying it to the converted classroom set aside 
for Negro use (7a, 17a, 73a, 75a). The decision to eat 
lunch in the main cafeteria “resulted from a culmination 
of the humiliation and inconvenience . . . and a belief that 
we were both entitled to eat in the main cafeteria and that 
there would be no serious objection from white persons 
if we were to eat there” (75a). It “was not intended to



7

violate hospital regulations or create a disturbance, but 
was the latest in a series of efforts by . . . Negro personnel 
employed at Dixie Hospital to obtain equal working facili­
ties” (73a). There were no disturbances and, on the second 
day, many white persons welcomed the nurses and in­
dicated that they were glad to see them back (75a). How­
ever, later in the day nurses Smith, Taylor, and Stokes 
were discharged by the Hospital (7a, 18a).

On August 26, 1963, an attorney for the nurses wrote 
the administrator of the Dixie Hospital, Mr. Walton, re­
questing their reinstatement and also seeking to be in­
formed of any appellate procedure for reviewing their 
dismissal. In a letter dated September 4, 1963, Mr. Walton 
refused to reinstate the nurses and further stated that 
“No procedure exists for the redress of matters of this 
nature” (9a-10a).

The Hospital does not dispute that the only actions of 
the nurses which led to their discharge was their eating 
lunch in the white-only cafeteria (20a). There is no con­
tention that the three nurses were discharged August 9, 
1963 for any reason pertaining to their services as nurses, 
although it is said that one nurse, Mrs. Smith, “ inciting 
agitation among fellow workers concerning hospital poli­
cies” (20a). However, the Hospital alleges that dismissal 
of the Negroes for eating in the white cafeteria was “be­
cause of insubordination and violation of the rules, regula­
tions and policies of the Dixie Hospital” (18a).

The answer alleges that Mrs. Smith, who was a regis­
tered nurse at the Dixie Hospital earning $280.00 per 
month and whose employment by the hospital had begun 
in 1955, was not a “completely satisfactory” employee be­
cause she terminated her employment at various times 
between the period 1955 and 1963 due to health, family



8

responsibilities, child birth and other reasons2 (18a, 19a). 
There is, however, no attempt to connect these charges with 
her dismissal on August 9, 1963.

Agnes L. Stokes was, at the time of her dismissal, a 
licensed practical nurse at a salary of $210.00 per month. 
Patricia L. Taylor was employed as a general practical 
nurse also at a salary of $210.00 per month. The answer 
concedes that the services of nurses Stokes and Taylor 
were satisfactory, except that nurse Taylor had not ad­
vanced herself to the level of a licensed practical nurse 
(18a, 19a). There is no attempt to connect this charge 
with her dismissal on August 9, 1963.

The record shows that Dixie Hospital maintains racially 
discriminatory practices such as separate pediatrics wards 
for white and Negro children and separate floors for 
Negro and white patients and racial assignments of physi­
cians (31a, 32a, 77a, 78a).3 The cafeteria was finally opened 
to Negro employees October 2, 1963. In its answer Dixie 
Hospital concedes and attempts to justify racial segrega­
tion in general:

. . . certain forms of segregation are maintained in 
Dixie Hospital as in other hospitals, to wit: Negro

2 In addition, the answer characterizes her as follow s:
So far as her actual physical duties were concerned, they were satis­
factory and she was a competent and capable nurse. However, her 
general appearance, ability to work with others, her attitude and 
personality were only fair and were not up to the level expected of 
a person o f her ability and she incited agitation and insubordination 
among her fellow workers concerning hospital policies (19a, 20a).

3 A companion suit, Bridges v. Hampton Training School for Nurses, 
a corporation, Civil Action No. 1001 pending in E. D. Va., o f which the 
district court took judicial notice (43a) has as plaintiffs the three nurses 
and a Negro physician, a white minor and her next friend. In that suit 
plaintiffs seek injunctive relief against these and other racial policies 
o f the hospital including segregation o f white patients attended by Negro 
physicians.



9

patients and white patients are on separate floors, if 
that be segregation; males and females are segre­
gated into different wards; maternity cases are segre­
gated from other types of cases; pediatrics cases are 
segregated from other types of cases. The types of 
segregation referred to are in general practice in 
Virginia and in other states throughout the United 
States and is not in violation of the equal protection 
and due process clauses of the Fourteenth Amend­
ment and the due process clause of the Fifth Amend­
ment to the Constitution of the United States (20a-21a).

The hospital also alleged that funds contributed by 
white persons and organizations represented by them had 
been made to the hospital “with the specific understanding 
that the policy of Dixie Hospital of placing white and 
Negro patients on separate floors, which policy had existed 
for many, many years, would be maintained and such con­
tributions were conditioned upon that policy” (21a).

Dixie Hospital has received and is presently applying 
for large sums from the United States under the Hill- 
Burton Program for hospital construction. In 1956, the 
United States approved a grant to the hospital for approx­
imately $1,730,000 of a total construction cost of $3,600,000 
(55a-58a); the State of Virginia provided $173,000 towards 
construction of the new building (31a). It was in the 
building made possible by these funds that the events of 
August 9, 1963 took place. In its application for these 
funds Dixie Hospital represented to the United States 
“that the facility will be operated without discrimination 
because of race, creed or color” (58a).

Presently pending before the United States, and awaiting 
decision as to whether or not the hospital is in compliance 
with Title VI of the Civil Rights Act of 1964, is the hos­



10

pital’s application under the Hill-Burton Act for an addi­
tional grant of $585,000 for new hospital construction (15a, 
68a-72a, 77a, 78a). According to the Department of Health, 
Education and Welfare, as of July 13, 1965, the hospital is 
not in compliance with Title VI “ particularly in the areas 
of patient assignment to rooms and the use of separate ad­
mission lists for Negro and white patients” (78a).

A R G U M E N T

I

The Court below erred in dismissing the complaint 
on the ground that Negro nurses are without consti­
tutional rights if discharged solely on account of race 
by a Hill-Burton Hospital prior to the date of this 
Court’s decision in Simkins v. Moses H. Cone Memorial 
Hospital (November I , 1963).

In dismissing this action, the district court treated a 
motion to dismiss filed by the Hospital ten months after 
answer, as a motion for summary judgment on the plead­
ings and granted the motion. On review of such a deter­
mination, the facts alleged by the plaintiffs are accepted, 
the question here being whether, on such facts, the nurses 
are entitled to relief. See Cat’s Paw Rubber Co. v. Barlo 
Leather & Findings Co., and cases cited 12 F. R. D. 119, 121 
(S. D. N. Y. 1951).

The district court stated the dispositive issue of law in 
this case to be whether “acting under what was then deter­
mined to be ‘not State action’ and proceeding under wliat 
was assumed to be a valid statute [42 IT. S. C. §291e(f)] 
and regulation” [42 C. F. R. §53.112] Dixie Hospital is 
“ liable for back pay and . . . required to reinstate the plain­



11

tiffs to their former positions” (44a). (Emphasis supplied.) 
The court answered this question by holding “public policy 
dictates that, whatever may be the rights of a Negro dis­
charged from employment following the decision in Simkins 
by the Court of Appeals and the subsequent denial of cer­
tiorari, together with the passage of the Civil Rights Act 
of 1964, no rights are created which should be accorded 
retrospective effect” (46a).

A. The Constitutional Rights of the Nurses Existed 
Prior to November 1, 1963.

The idea that the nurses’ constitutional right to be free 
from racially nondiscriminatory treatment in their employ­
ment conditions in a governmentally supported hospital 
suddenly “vested” on the date this Court decided the 
Simkins case is alien to much of our constitutional juris­
prudence. Their rights derive from the Fourteenth Amend­
ment which became a part of our basic law in the last cen­
tury. But this case need not turn on any jurisprudential 
argument about whether judges “create” or “ discover” law 
in interpreting the Constitution. Ever since the Fourteenth 
Amendment was ratified state agencies have been on no­
tice that they are forbidden to discriminate racially. Since 
Brown v. Board of Education, 347 U. S. 483, they have been 
on notice that segregation was a denial of equal protection. 
In April 1963, some months before the appellants were 
fired, a unanimous Supreme Court pointed to its prior de­
cisions and said in Colorado Anti-Discrimination Comm. v. 
Continental Airlines, 372 U. S. 714, 721:

But under our more recent decisions any state or fed­
eral law requiring applicants for any job to be turned 
away because of their color would be invalid under the 
Due Process Clause of the Fifth Amendment and the



12

Due Process and Equal Protection Clauses of the Four­
teenth Amendment.

And in May 1963, the Court had made it crystal clear that 
state compelled segregation in restaurants violated the 
Constitution. Peterson v. Greenville, 373 U. S. 244.

The only issue was whether the Dixie Hospital was suf­
ficiently involved with government to be bound by the Con­
stitution. The Dixie Hospital between 1956 and 1959 ac­
cepted more than 1.9 million of the taxpayers’ dollars. Ac­
tion by the Hospital thereafter premised on the theory that 
it was unaccountable to standards of conduct governing the 
public was surely taken at its peril. This is particularly so 
where the Hospital had no basis for a claim that it acted 
in reliance on a prior precedent in its favor and should be 
exempt from the surprise effects of a change of law. Cf. 
Smith v. Allwright, 321 U. S. 649, 650, 665, 666. These con­
siderations require reversal of the judgment below.

However, it is also appellants’ belief that the specific 
premises relied upon below are erroneous, and, moreover, 
that even were they valid, the conclusion of the district 
court still would not follow, see infra, pp. 18-23.

B. Simkins v. Moses H. Cone Memorial Hospital 
Applied, Rather Than Reversed, Prior Law.

The first premise relied upon assumes that “at the time 
these causes of action now asserted by the plaintiffs arose, 
the state and federal law was clear and the plaintiffs had 
no cause of action,” for on August 9, 1963, the Hospital was 
“acting under what was then determined to be ‘not state 
action’ ” (44a-47a). In short, the district court, which ex­
pressed “ serious doubts” as to Simkins v. Moses H. Cone 
Memorial Hospital, 323 F. 2d 959 (4th Cir. Nov. 1, 1963), 
considered the decision a reversal of prior law as to the



13

scope of the state and federal action requirements of the 
Fifth and Fourteenth Amendments.

The conclusion will not bear examination of the Simkins 
opinion. Far from overruling previous decisions on the 
scope of the Fifth and Fourteenth Amendments, this Court 
expressly relied upon and applied such decisions, especially 
Burton v. Wilmington Parking Authority, 365 U. S. 715 
(1961).

The Court made this clear in unequivocal language: 
“Weighing the circumstances, we are of the opinion that 
this case is controlled by Burton” 4 (323 F. 2d at 967). 
(Emphasis supplied.) Therefore, when the district court 
states that “ There is nothing in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, [81 S. Ct. 856, 6 L. ed. 2d 
45] decided in 1961, which would give rise to the belief that 
the rule in Simkins was forthcoming” (46a) the court’s 
conclusion collides with the holding in Simkins itself that 
Simkins was “ controlled” by Burton. See also Hampton 
v. City of Jacksonville, 304 F. 2d 320, 323 (5th Cir. 1962) 
decided before Simkins and before August 9, 1963, the date 
of the racial discharge.

The district court’s erroneous view of Burton, supra, is 
further illustrated by another of this Court’s decisions, 
Eaton v. James Walker Memorial Hospital, 329 F. 2d 710 
(4th Cir. 1964) which found Burton and Simkins cut from 
the same cloth. In that case this Court refused to apply 
the rule of res judicata (asserted to arise from an earlier 
Eaton decision) to a constitutional violation because of the 
principles enunciated in “Burton and Simkins . . . ” (329 
F. 2d at 712).

4 Burton, supra, was decided by the United States Supreme Court on 
April 17, 1961, more than two years before the nurses were discharged. 
The refusal o f service to Mr. Burton took place in 1958.



14

In addition to Burton, the Court in Simkins expressly 
based relief on a host of decisions on the scope of Fifth and 
Fourteenth Amendments handed down prior to August 9, 
1963, the date on which this cause of action arose (323 F. 2d 
967-69) and the Court stressed language in Cooper v. 
Aaron, 358 U. S. 1, 4 (1958) that the Constitution forbids 
“ state participation through any arrangement, manage­
ment, funds or property,” which supports segregation. 
(Emphasis in original.) These decisions demonstrate be­
yond a doubt that, far from reversing prior law, Simkins 
applied existing principles to the “massive use of public 
funds and extensive state-federal sharing in the common 
plan” of the Hill-Burton Program (323 F. 2d at 967).

The district court cited only two cases to support its 
conclusion that Simkins was a reversal of prior law. These 
decisions do not establish the proposition. They were not 
overruled by Simkins. Nor do they detract from the force 
of Burton, supra, and other decisions handed down prior to 
August 9, 1963, and relied upon by the Court in Simkins.

Eaton v. Grubbs, 261 F. 2d 521 (4th Cir. 1958) cert, 
denied 359 U. S. 984 dealt with discrimination at a hos­
pital which did not participate in the Hill-Burton Pro­
gram. The narrow confines of this first Eaton case are 
demonstrated by language in Simkins, supra, and in the 
second Eaton case, a decision based on neAv and expanded 
allegations, Eaton v. James Walker Memorial Hospital, 
329 F. 2d 710 (4th Cir. 1964).

In Simkins this Court stated: “ . . . The Eaton case did 
uot involve any consideration of the Hill-Burton Program, 
with its massive financial aid and comprehensive plans. 
Moreover, no argument was presented in Eaton as to pos­
sible fulfillment by a private body of a ‘state function’ pur­
suant to an extensive state plan. And finally, the Eaton



15

case did not consider what effect overt state and federal 
approval would have on otherwise purely private discrimi­
nation” (323 F. 2d at 969). In the second Eaton case this 
Court stated: “ [t]he opinion of this court [in the first Eaton 
case] does not deal with [governmental construction sub­
sidies] and indeed shows no awareness of it; nor was this 
argued to the court” and “ . . . most importantly, the first 
Eaton case did not consider the argument . . . that the 
‘private’ hospital is fulfilling the function of the state” 
(329 F. 2d at 712, 713).

Even as confined to its own facts, the first Eaton decision 
was undermined in 1961 by Burton v. Wilmington Parking 
Authority, 365 U. S. 715, long before the August 9, 1963 
racial discharge. This Court stated in Simkins: “ In light 
of Burton, doubt is cast upon Eaton’s continued value as 
precedent” (323 F. 2d at 968). See also Eaton v. James 
Walker Memorial Hospital, 329 F. 2d 710, 712 (4th Cir. 
1964). The Fifth Circuit had taken the same view of the 
first Eaton case as early as May 17, 1962 when it decided 
Hampton v. City of Jacksonville, 304 F. 2d 320, 323 (5th 
Cir. 1962). Thus, even if Eaton correctly stated the law as 
to Hill-Burton hospitals when decided in 1958 (and it did 
not) it did not do so when the nurses were discharged in 
1963, two years after the Burton decision.

A decision of the Supreme Court of Appeals of Virginia, 
Khoury v. Community Memorial Hospital, Inc., 203 Va. 
236, 123, S. E. 2d 533 (1962), was also relied upon by the 
district court. In Khoury, a physician claimed he was dis­
charged in breach of contract by a hospital which had re­
ceived Hill-Burton funds, and he sought, inter alia, to es­
tablish that the hospital was a public rather than a private 
corporation. Although the opinion of the Supreme Court 
of Appeals does not state the significance of the distinction



16

to the physicians’ rights, the contention is rejected on the 
authority of Dartmouth College v. Woodward, 4 Wheat. 518 
(1819) and state decisions.

The court did not decide any question of the scope of 
the state or federal action requirement of Fifth and Four­
teenth Amendments. It could not have considered such 
questions pertinent because it nowhere mentions Burton, 
supra, 365 U. S. 715 (1961), the latest Supreme Court pro­
nouncement on the Fourteenth Amendment, or any other 
federal decision besides the Dartmouth College case which, 
of course, concerns itself with whether Dartmouth College 
was a public or private corporation within the meaning of 
the obligation of contract clause, Art. 1, §10 of the Consti­
tution. As the Simkins decision demonstrates, Burton, 
supra, and other federal decisions, and not Khoury, had 
stated the proper scope of the Fifth and Fourteenth 
Amendments long before August, 1963.

C. Dixie Hospital Was Specifically Obliged Not to 
Discriminate on the Basis of Race as Early as 
1956.

The second premise on which the decision below rests 
assumes the Hospital was proceeding under the “ separate 
but equal” provisions of the Hill-Burton Act at the time 
of the nurses’ racial discharge, August 9, 1963, and that 
these provisions constituted “a valid statute and regula­
tion.” 5 (44a, 47a) This is a serious error with respect to 
the obligations of the Hospital under the Hill-Burton Act, 
for Dixie Hospital had agreed to operate “without discrim­
ination because of race” as early as 1956 (58a).

Until 1964, when the Hill-Burton Act was amended to 
eliminate reference to discrimination in light of Title V I of

5 42 U. S. C. $291e(f) 1958 ed.; 42 C. F. R. $53,112.



17

the Civil Rights Act of 1964, 42 U. S. C. §$2000(d) et seq. 
the Surgeon General was authorized to permit state plans 
to meet the racial nondiscrimination requirement of 42 
U. S. C. 291e(f) 1958 ed. by approving in certain narrow 
circumstances separate facilities for “ separate population 
groups.” 6 It was this exception to a general nondiscrimina­
tion requirement which the Court declared unconstitutional 
in Simkins, supra (329 F. 2d at 969). A hospital which did 
not apply for and receive permission to maintain separate 
facilities for “ separate population groups” however, was 
always required to conform to the Hill-Burton Act re­
quirement that all facilities built under the Act be made 
available “without discrimination on account of race, creed 
or color” (42 U. S. C. §291e(f) 1958 ed.; 42 C. F. R. §53.112; 
see also §53.111).

The two hospitals involved in the Simkins case applied 
for and received federal funds pursuant to the “ separate 
but equal” exception, but as its application reveals plainly, 
Dixie Hospital did not (58a). The Simkins hospitals took 
federal funds pursuant to an exception to the nondiscrimi­
nation provision and might claim that they relied on “a 
valid statute and regulation” (44a) in denying the constitu­
tional rights of Negro patients and physicians (Even this 
argument, however, was rejected in Simkins, supra, 323 
F. 2d at 970), but Dixie Hospital has no such equity to 
assert. Dixie was never granted the “ separate but equal” 
exemption to the nondiscrimination clause of the Act. It 
received federal funds in 1 956 , seven years before the 
racial discharge on the basis of its assurance that it would 
not “discriminate on the basis of race, creed or color” 
(58a) pursuant to a statute which, except in one clearly

6 Waiver o f the nondiscrimination assurance required a specific finding 
by the Surgeon General and a state agency that there were equal facilities 
available in the community for Negroes. 42 C. F. R. 553.112.



18

defined instance, not applicable to Dixie Hospital, pro­
hibited racial and religious discrimination. 42 U. S. C. 
§291e(f) 1958 ed.; 42 C. F. R. §53.112. Dixie Hospital, 
therefore, had bound itself not to “ discriminate on the 
basis of race” long before this cause of action arose.

Of course, even if the “ separate but equal” exception had 
been granted to Dixie Hospital it had been rendered clearly 
unconstitutional long before 1963, Simkins, supra (323 F. 2d 
at 970). See Flemming v. South Carolina Electric and Gas 
Co., 239 F. 2d 277 (4tli Cir. 1956) a decision in direct con­
flict with the judgment below.7 See also Muir v. Louisville 
Park Theatrical Assn., 347 U. S. 971 (vacated in light of 
Brown v. Board of Education, 347 U. S. 483 (May 17,1954); 
Gayle v. Browder, 350 U. S. 903 (1956); Dawson v. Mayor 
and City Council of Baltimore, 350 U. S. 877 (1955); Colo­
rado Anti-Discrimination Comm. v. Continental Airlines, 
372 U. S. 714, 721 (1963).

D. Even if Simkins Reversed Prior Law it would 
Apply to the Nurses.

We have discussed those respects in which the judgment 
below must be reversed because founded on erroneous as­
sumptions regarding the state of the law prior to Simkins, 
supra, and the basis of the Simkins decision. Even assum­
ing the district court to be correct, however, its conclusion

7 There, the district court dismissed a damage action by a Negro ex­
cluded, June 22, 1954, from her seat on a bus operated by the defendant 
company on the ground that “ the separate but equal doctrine o f Plessy 
v. Ferguson as applied to the bus driver was not repudiated”  by the 
United States Court o f Appeals for the Fourth Circuit “ until after the 
event on which the suit is based; and that it would be unjust to apply the 
new rule retroactively and hold the bus company liable for damages for 
an act which was lawful when it was performed”  (239 F. 2d 278, 279). 
This Court reversed on the ground that Brown v. Board o f Education, 
347 U. S. 483 and Bolling v. Sharpe, 347 U. S. 497 (decided May 17, 
1954) “ left no doubt that the ‘separate but equal’ doctrine had been 
generally repudiated”  in all areas o f public life.



19

that Simkins is only prospective in application does not 
follow.

First, as this Court observed in Flemming v. South Caro­
lina Electric and Gas Company, 239 F. 2d 277, 279 (4th 
Cir. 1956) “In most jurisdictions it is held that reliance on 
a statute subsequently declared unconstitutional does not 
protect one from civil responsibility for an act in reliance 
thereon which would otherwise subject him to liability.” 
(Emphasis added.) The rule was applied in Flemming to 
facts indistinguishable from the instant case. Although a 
rule of prospective application is permissible to prevent 
hardship or injustice, Great Northern R. Co. v. Sunburst 
Oil & Refining Co., 287 U. S. 358, the general rule is that 
in civil cases reversal does not insulate one from liability, 
Smith v. Allwright, 321 U. S. 649, 650, 665, 666. See also 
Mosser v. Darrow, 341 U. S. 267 stating a new rule of lia­
bility for trustees in bankruptcy but, nevertheless, impos­
ing the burden of that rule retroactively.

Second, the Court in Simkins expressly rejected the only 
basis on which the case could be given only prospective ef­
fect. In Simkins, the hospitals argued with great force 
that as they had been affirmatively permitted to discrimi­
nate by Act of Congress and Executive decision relief as 
to them should be denied. The Court met this argument 
head-on and rejected it on the basis of the nature of the 
Constitution and the equities involved:

This court does not overlook the hospitals’ conten­
tion that they accepted government grants without 
warning that they would thereby subject themselves to 
restrictions on their racial policies. Indeed, they are 
being required to do what the Government assured 
them they would not have to do. But in this regard, 
the defendants, owners of publicly assisted facilities,



20

can stand no better than the collective body of South­
ern voters who approved school bond issues before the 
Brown decision or the private entrepreneur who out­
fitted his restaurant business in the Wilmington Park­
ing Garage before the Burton decision. The voters 
might not have approved some of the bond issues if 
they had known that the schools would be compelled 
to abandon their historic practice of separation of the 
races, and the restaurateur might have been unwilling 
to venture his capital in a business on the premises 
of the Wilmington Parking Authority if he had antici­
pated the imposition of a requirement for desegregated 
service. What was said by the Supreme Court in 
Burton in regard to the leases there in question is 
pertinent here:

[W]hen a State leases public property in the man­
ner and for the purpose shown to have been the case 
here, the proscriptions of the Fourteenth Amendment 
must be complied with by the lessees as certainly as 
though they were binding covenants written into the 
agreement itself. (Emphasis added.) 365 U. S. at 
p. 726.

We accord full weight to the argument of the de­
fendants, but it cannot prevail. Not only does the 
Constitution stand in the way of the claimed immunity 
but there are powerful countervailing equities in favor 
of the plaintiffs. Racial discrimination by hospitals 
visits severe consequences upon Negro physicians and 
their patients.

The Court in Simkins, therefore, conclusively rejected 
an attempt to limit that decision to the future.

Third, the Negro physicians and patients in Simkins 
were granted relief for causes of action which arose long



21

before the nurses’ racial discharge, August 9, 1963. The 
complaint in Simkins was filed February 12, 1962 and the 
acts of the two Greensboro, North Carolina hospitals which 
the court found to be unconstitutional took place prior to 
the filing of that complaint. If the view of the district 
court as to the prospective nature of the holding in Simkins 
is to be sustained, an exception must be carved out for the 
litigants in Simkins.

Fourth, in the Second Eaton decision, 329 F. 2d 710 
(4th Cir. 1964) Simkins already has been applied to a 
cause of action which arose prior to the date of the Simkins 
decision.8

Fifth, the case relied upon below to support application 
of Simkins prospectively, Linkletter v. Walker, 381 U. S. 
618, has been misapplied. Linkletter holds that Mapp v. 
Ohio, 367 U. S. 643 (which expressly overruled Wolf v. 
Colorado, 338 U. S. 25) would not be applied to cases 
finally decided prior to Mapp in which federal habeas 
corpus was not brought until subsequent to Mapp. In 
Mapp, the Court incorporated the rule which excluded 
evidence seized in violation of the Fourth Amendment into 
the Fourteenth Amendment. Linkletter found that the pur­
pose of the exclusionary rule is “ to deter the lawless action 
of police,” a purpose which could not be served by making 
Mapp retroactive (381 U. S. 636, 637). Here, the ends 
of the Fourteenth Amendment—to secure Negro rights to 
equal protection—are clearly served by applying Simkins.

Another consideration in the decision to apply Mapp 
prospectively was the probability that a large number of 
prisoners would go free, probably without trial. The Court

8 Tlie cause o f action in the second Eaton case also arose prior to 
August 9, 1963.



22

was concerned with the administration of justice and the 
integrity of the judicial process. “ To make the rule of 
Mapp retrospective would tax the administration of justice: 
hearings would have to be held on the excludability of 
evidence long since destroyed, misplaced, or deteriorated. 
If it is excluded, the witnesses available at the time of the 
original trial will not be available or if located, their 
memory will be dimmed. To thus legitimate such an 
extraordinary procedural weapon will seriously disrupt 
the administration of justice” {Ibid). None of these con­
siderations even remotely apply to the rights asserted by 
Negro nurses to relief against racial discharge. Moreover, 
the decision does not even have general application in the 
criminal field.9

Sixth, the equities in favor of these nurses are over­
whelming. They compel application of Simkins. The nurses 
sought merely to overcome the demoralizing and degrading 
effects of racial segregation by seating themselves at a 
table in the cafeteria rather than carrying their food 
from that cafeteria to the Negro “dining room” in a Hos­
pital which had pledged the United States, in order to 
receive over 1.7 million dollars, that it would not discrim­
inate on the basis of race. They caused no commotion or 
disturbance of any kind and they directed themselves to 
discrimination in hospitals, the severe consequences of 
which this Court has concluded are “powerful counter­
vailing equities” touching “health and life itself” Simkins, 
supra (323 F. 2d at 967, 970).

9 In the criminal field, aside from Linkletter supra, and its peculiar 
circumstances, there has been no reluctance to make new rules retroactive, 
see e.g., Griffin v. Illinois, 351 U. S. 12 (1958) applied to a 1925 convic­
tion in Eskridge v. Washington, 357 U. S. 214; Gideon v. Wainwright, 
372 U. S. 325 has also been applied retroactively.



23

Finally and fundamentally, the whole issue posed by the 
decision below—whether the rule of Simkins is to be “ retro­
spective”—has relevance only to the appellants claim for 
back pay, and no relevance at all to their claim for prospec­
tive relief based on the law as it is now clearly understood 
by all, i.e., for an order directing that they forthwith be 
put to work at the Hospital in the jobs of which they were 
unlawfully deprived. The familiar principle is that equity 
courts apply prospective relief on the basis of the law as 
it exists at the time the relief is granted. These nurses 
want the Court to order the hospital to give them their 
jobs now and for the future. That part of their claim for 
relief does not involve even a hint of ex post facto un­
fairness. As far as reinstatement is concerned, the entire 
debate about retrospectivity is beside the point.

II

Negro nurses, racially discharged from a Hill-Burton 
Hospital, prohibited from discrimination by the Fifth 
and Fourteenth Amendments, are entitled to injunc­
tive relief ordering reinstatement with back pay.

The district court also expressed “ serious doubts” 
whether Simkins, supra, “permits an action for wrongful 
discharge” against a Hill-Burton Hospital (47a). As­
suming arguendo that Dixie Hospital is prohibited from 
racially discharging employees, the district court held that 
the Simkins decision does not permit an action for an in­
junction ordering reinstatement, with back pay, but only 
an action for damages (47a).

The complaint prayed for an order reinstating the nurses 
and granting them back pay from the time of the racial 
discharge; money damages were not sought, the complaint



24

alleging “no plain, adequate or complete remedy to redress 
these wrongs other than this suit for an injunction.” Any 
other remedy would “deny substantial relief,” cause “ ir­
reparable injury and occasion damage, vexation and in­
convenience to plaintiffs” (4a, 10a, 11a).

By seeking reinstatement with back pay for the unconsti­
tutional discharge, the nurses pray for what is the only 
effective and meaningful remedy which secures their con­
stitutional rights. They desire the return of their rights 
through prospective relief: an order restoring their jobs 
for the future. They also seek back pay, traditional ac­
companiment to reinstatement, in order to restore status 
fully as if the wrongful discharge had not occurred. The 
nurses do not seek damages because, regardless of the 
recovery, they could not repair the wrong and return their 
jobs. Constitutional rights would be often empty promises 
if another needed only to pay damages in order to deprive 
them. This is especially true because the rights involved 
are “inherently incapable of pecuniary valuation” Jordan 
v. Hutcheson, 323 F. 2d 597, 601 (4th Cir. 1963).

The district court treated this action narrowly, as if it 
were merely another for breach of contract. The nurses, 
however, do not seek relief on any theory of contract or 
agency law; their right to relief is grounded in the Con­
stitution itself. The Hospital, having received massive sup­
port from federal and state governments by participating 
in the Hill-Burton program, was bound by the Constitution 
when it racially dismissed the nurses. They are entitled, 
therefore, to relief which secures the rights which the 
Hospital denied.

The notion, also suggested by the court below, that a 
Hill-Burton hospital is subject to the Constitution to the 
extent that it must treat Negro patients and accept Negro



25

physicians and dentists as staff members without discrim­
ination of any kind, but, on the other hand, is free to 
racially discharge Negro employees is unsupportable. 
When the restraints of the Constitution apply, a person 
may not be dismissed from employment for reasons which 
are patently arbitrary or discriminatory.10 In Simkins v. 
Moses H. Cone Memorial Hospital, 323 F. 2d 959 (4th 
Cir. 1963), and Eaton v. James Walker Memorial Hospital, 
329 F. 2d 710 (4th Cir. 1964), relying on a long line of 
decisions applying the principles of Brown v. Board of 
Education to every area of public life, this Court expressly 
held that Negro physicians and dentists were entitled to 
injunctive relief ordering their placement on the medical 
and dental staffs of Hill-Burton hospitals. Certainly Ne­
gro nurses are entitled to as much protection as that ac­
corded to Negro physicians and dentists. It is difficult 
to conceive the reasoning which would permit protection 
of the physicians and dentists in Simkins and Eaton, but 
deny it to the nurses here. As far as race is concerned, 
the Dixie Hospital is as bound to nondiscrimination as the 
United States and the State of Virginia, its partners in 
the Hill-Burton program. Colorado Anti-Discrimination 
Comm. v. Continental Airlines, 372 U. S. 714, 721. As the 
Supreme Court stated, when applying the principle to 
a restaurateur in Burton, supra (365 at 726), “ . . . the 
proscriptions of the Fourteenth Amendment must be com­

10 Wieman v. Updegraff, 344 U. S. 183, 192 (invalidation o f loyalty 
oath applied to teachers which based employability solely on the fact 
o f membership in certain organizations); Cramp v. Board o f Public 
Instruction, 368 U. S. 278, 288 (public school teacher may not be dis­
charged for failure to subscribe to unconstitutionally vague oath) ; 
Torcaso v. Watkins, 367 U. S. 488, 495-96 (appointee to the office of 
Notary Public may not be denied permission for failure to subscribe to 
religious oa th ); Schware v. Board o f Bar Examiners, 353 U. S. 232 
(applicant for admission to the Bar may not be excluded from practice 
when evidence does not support ground o f exclusion).



26

plied with by the lessee as certainly as though they were 
binding covenants written into the agreement itself.” 11

The district court recognized that the remedy of rein­
statement, with back pay sought by the nurses is one which 
is commonly granted to employeees wrongfully discharged 
by government as well as in the labor-relations field (47a), 
but concluded, without elaboration, that injunctive relief 
was not appropriate here.

The principle on which such remedy may be denied to 
employees protected by the Constitution because of govern­
mental action while granted to the employees of govern­
ment is not readily apparent. There is no reason suggested 
why an injunction, the only effective remedy, is not relief 
to which the nurses are “ entitled,” Federal Rules of Civil 
Procedure, Rule 54(c). On the contrary, the rule is that 
these nurses, having established their substantive rights, 
are “ entitled” in a federal court to any traditional remedy 
which offers the relief they seek.

Decisions permitting reinstatement, back pay, and other 
forms of injunctive relief which amounts to the same thing 
are many, and they are not limited to those occasions where 
a specific statutory provision reinstatement or back pay or 
both exists. In Service v. Dalles, 354 U. S. 365, the Supreme 
Court granted injunctive relief ordering reinstatement with 
back pay for a wrongfully discharged federal employee 
without reference to statutory authorization. Accord:

11 It should not be forgotten that it is state and federal responsibility 
which give rise to the prohibitions to the Fifth and Fourteenth Amend- 
mens. These Amendments are addressed to government and cast upon 
the states and the federal government the affirmative obligation to assure 
nondiscrimination. To permit Dixie Hospital to discriminate in employ­
ment is to permit the State o f Virginia and the United States to deny 
due process o f law and equal protection o f the laws because state and 
federal governments are deeply involved in the financing, regulation, and 
planning o f Dixie Hospital.



27

Vitarelli v. Seaton, 359 U. S. 353; Greene v. McElroy, 360 
U. S. 474, 491, 492 (Fifth Amendment protects employee of 
defense contractor from arbitrary interference with em­
ployment relationship).

It is settled beyond question that Negro employees sub­
ject to discriminatory practices based on race are entitled 
to relief by injunction as well as damages in the federal 
courts. Steele v. Louisville & N. R. Co., 323 U. S. 192; Con­
ley v. Gibson, 355 U. S. 41. In these and other, similar, de­
cisions injunctive relief was granted for breach of a duty 
arising from statute. Here, the right of the nurses is pre­
eminent, arising as it does directly from the due process 
and equal protection clauses of the Fifth and Fourteenth 
Amendments.

As early as IVickersham v. United States, 201 U. S. 392 
(1906) the Court exercised its inherent equitable powers to 
reinstate a federal employee with back pay although there 
was no statutory authority for back pay on the ground that 
the removal was without legal effect. In Slochoiver v. Board 
of Education, 350 U. S. 551, the Supreme Court found that 
a school teacher could not be removed from his position for 
exercise of his constitutional privilege against self incrimi­
nation. See also cases cited in note 10, supra p. 25. In 
N. L. R. B. v. Jones & Laughlin S. Cory., 301 U. S. 47, 48, the 
Supreme Court justified Congress’ power to authorize the 
National Labor Relations Board to reinstate employees, 
with back pay, on the basis of an established judicial power 
to do so. In Todd v. Joint Apprenticeship Committee of 
Steel Workers, 223 F. Supp. 12 (N. D. 111. 1963), vacated on 
other grounds, 332 F. 2d 243 (7th Cir. 1964), the district 
court ordered labor unions, subject to the restraints of the 
Constitution against racial discrimination because of fed­
eral and state support, to accept named Negro plaintiffs as 
apprentices. In Thomas v. United' States, 289 F. 2d 948,



28

949, 951 (Ct. Cl., 1961) the Court exercised its equitable 
power to grant back pay, there being no statutory authori­
zation. The Court also considered a statute which only 
allowed back pay if there was reinstatement, but stated that 
the court was empowered to grant back pay: “Even where 
no reinstatement has been ordered judgment for back pay 
may be given if the facts of the case justify such action 
[citing cases].” Similarly, Daub v. United States, 292 F. 2d 
895 (Ct. Cl., 1961) gave recovery for back pay lost between 
discharge and reinstatement even though the employee was 
not entitled to recover under any statute. Accord: Cad- 
dington v. United States, 178 F. Supp. 604 (Ct. Cl., 1959) 
(equity demands relief).

This Court is also authorized by the provisions of 42 
U. S. C. §1983 to grant broad relief “ in equity or other 
proper proceeding for redress.” Congress in enacting 
§1983 (RS§1979: §1 of the Ku Klux Act of 1871) intended 
to provide a comprehensive, federal remedy for depriva­
tions of the Fourteenth Amendment by those, such as the 
Dixie Hospital, acting “under color of law.” McNeese v. 
Board of Education, 373 U. S. 668, Monroe v. Pape, 365 U. S. 
167. Literally thousands of civil actions have been brought 
under §1983 to redress deprivation of the constitutional 
rights; the experience of this jurisprudence demonstrates 
beyond question the broad discretion of this Court to secure 
constitutional rights. See e.g., Alston v. School Board of 
City of Norfolk, 112 F. 2d 992 (4th Cir. 1940) (Board re­
strained from making racial distinction in fixing salary of 
Negro and white teachers).

When a constitutional violation is involved the reasons 
for granting just relief are all the more pressing; effective 
remedies for constitutional deprivations are as important 
as constitutional rights themselves. Compare Mapp v. Ohio, 
367 U. S. 643 with Wolf v. Colorado, 338 U. S. 25. One of 
the primary grounds for overruling Wolf, and elevating the



29

exclusionary rule to the level of constitutional principle, 
was the discovery that remedies other than the exclusionary 
rule were ineffective protections of Fourth Amendment 
rights. See Linkletter v. Walker, 381 U. S. 618, 634.

Unless the nurses are taken back into the employ of the 
Hospital, the plain inference is that institutions subject to 
the Constitution such as Dixie Hospital may racially dis­
criminate at no greater sanction than damages awarded by 
a jury. Such a conclusion is directly inconsistent with Sim- 
kins, supra and Eaton, supra, where the hospitals were 
ordered to accept Negro physicians and dentists without 
regard to race, for it would permit them, there being no 
significant distinction in this regard between doctors and 
nurses, to dismiss the physicians and dentists because of 
race and pay whatever damages a jury would assess. A 
school board might entertain hopes of removing Negro 
teachers only subject to the same sanction.12 Cf. Bradley v. 
School Board of the City of Richmond-, Gilliam v. School 
Board of City of Hopewell, (U. S. Sup. Ct., No. 415 and 
No. 416, October Term 1965 vacating and remanding 345 
F. 2d 310 (4th Cir. 1965); 345 F. 2d 325 (4th Cir. 1965)).13

12 This Court may soon be called upon to review racial discharge of 
Negro teachers. See Rackley v. Orangeburg School District (No. 8458,
E. D. S. C .) ; Williams v. Sumter School District (No. 1534 E. D. S. C .).

13 A  number of other decisions invoke the specific remedy sought here 
to safeguard constitutional rights. In Dixon v. Alabama State Board of 
Education, 294 F. 2d 150 (5th Cir. 1961) cert, denied 368 U. S. 930, the 
Fifth Circuit enjoined expulsion o f Negro college students from a tax 
supported college without constitutional safeguards o f notice and hearing. 
Although the “ misconduct”  for which the students had been expelled was 
not definitely specified, all o f them had participated in a peaceful protest 
against racial segregation at a lunch counter in the basement o f the 
Montgomery County Courthouse. In Knight v. State Board o f Educa­
tion, 200 F. Supp. 174 (M. D. Tenn. 1961) 13 Negro students had been 
arrested as “ freedom riders”  in Jackson, Mississippi. Their reinstate­
ment was ordered on the authority o f the Dixon case. See also Woods 
v. Wright, 334 F. 2d 369 (5th Cir. 1964) reinstating thousands o f 
Birmingham, Alabama public school children expelled because they par­
ticipated in peaceful protests against racial segregation.



30

The consequence of such a rule to the public interest in pre­
venting racial distinctions, which are “by their very nature 
odious to a free people,” could not be more disastrous.14

These unpleasant examples will not occur because this 
Court has the power to frame decrees which provide effec­
tive relief for denial of constitutional rights. See e.g. 
Griffin v. School Board of Prince Edward County, 377 U. S. 
218, 234 (federal courts have broad powers to enter a decree 
which will enjoin state supported segregation); Alexander 
v. Hillman, 296 U. S. 222, 239.

There is no suggestion in the cases described above, 
where the remedy sought here was granted, that a jury is 
required to order back pay. However, the district court 
suggested, without deciding, that a jury might be required 
on the issue of back pay or of the extent to which the nurses 
have minimized loss of earnings (48a). But back pay has 
always been recognized as equitable relief, issued to restore 
status, or as an incident to reinstatement which protects 
against wrongful discharge, without conferring the right 
of trial by jury. When §10(c) of the National Labor Rela­
tions Act of 1935, which authorizes the National Labor 
Relations Board to grant “ reinstatement of employees with 
or without back pay,” was challenged as abrogating trial 
by jury under the Seventh Amendment, the constitutional­
ity of the section was upheld on the ground that such 
awards are equitable in nature, N. L. R. B. v. Jones & 
Laughlin S. Cory., 301 U. S. 1, 47, 48; Agwilines, Inc. v. 
National Labor Relations Board, 87 F. 2d 146, 151 (5th Cir. 
1936):

They provide for public proceedings, equitable in their 
nature. They exert power to restore status disturbed 
in violation of statutory injunction similar to that ex­

14 Hirabayashi v. United States, 320 U. S. 81, 100.



31

erted by a chancellor in issuing mandatory orders to 
restore status.

Nor do the Federal Rules of Civil Procedure, Rule 38(a) 
require a jury trial on the back pay issue, for the Rules 
do not enlarge the scope of the constiutional right to a jury 
trial. Ettelson v. Metropolitan Life Ins. Co., 137 F. 2d 62, 
65 (3rd Cir. 1943) cert, denied 320 U. S. 777.

Moreover, the issue of mitigation of loss of earnings does 
not entitle the Hospital to a jury trial. Even in cases, unlike 
this, where the relief sought is not solely equitable, “ there 
is no right to trial by jury on an issue of damages that is 
incidental to the equitable relief sought by plaintiff [s], the 
general rule being that equity having acquired jurisdiction 
of a cause it should dispose of the entire controversy” 
Crane Co. v. Crane, 157 F. Supp. 293, 295 (W. D. Ga. 1957). 
Equity often grants relief in the form of money damages as 
an adjunct to equity jurisdiction without trial by jury on 
the issue of damages. See e.g. Coca Cola Co. v. Old Domin­
ion Beverage Corp., 271 F. 600, 602, 604 (4th Cir. 1921); 
Chappell & Co. v. Palermo Cafe Co., 249 F. 2d 77, 81 (1st 
Cir. 1957); Hirsch v. Glidden Co., 79 F. Supp. 729, 730 
(S. D. N. Y. 1948); Admiral Corp. v. Admiral Employment 
Bureau, 161 F. Supp. 629 (N. D. 111. 1957).

In conclusion, Alexander v. Hillman, 296 U. S. 222, 239 
is apposite. Federal courts of equity, the Supreme Court 
said, may “ suit proceedings and remedies to the circum­
stances of cases and formulate them appropriately to safe­
guard, conveniently to adjudge and promptly to enforce 
substantial rights of all parties before them.” Appellants, 
racially discharged in violation of the Constitution, despite 
representations by the Hospital to the United States that 
it would not discriminate, are entitled to the relief prayed.



32

CONCLUSION

Wherefore, for the foregoing reasons, appellants 
pray the judgment below be reversed.

Respectfully submitted,

Jack Greenberg 
Derrick A. B ell, Jr.
M ichael M eltsner 

10 Columbus Circle 
New York, New York

W illiam A. S mith

17 East Lincoln Street 
P. 0. Box 242 
Hampton, Virginia

Attorneys for Appellants



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