Moses H. Cone Memorial Hospital v. Simkins Brief in Opposition to Certiorari

    I n  THE

(Emtrt 0! %  IntteJi B tn tm
O ctober T erm , 1963 

No. 776

T h e  M oses H . C one M emorial H ospital, et al.,
Petitioners,

— y.—

G. C. S im k ir s , et al., 
and the

U nited S tates oe A merica.

BRIEF IN OPPOSITION TO CERTIORARI ON BEHALF 
OF RESPONDENTS G. C. SIMKINS, ET AL.

J ack  Greenberg 
J ames M. N abrit, III 
M ichael  M eltsher 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019

C onrad O. P earson
203% East Chapel Hill Street 
Durham, North Carolina

Attorneys for G. C. Simhins, et al.





I N D E X

PAGE

Statement ................................................  1

Federal Funds for Hospital Construction............... 4

General Facts About Hill-Burton Program ........... 5

Tlie North Carolina State P lan ................................  5

Division of Federal and State Controls.................. 6

Opinions of the Courts B elow .................................. 6

A rgum ent  ...............      9

I. The Decision of the Court Below Enjoining 
Racial Discrimination at Hospitals Closely Regu­
lated and Controlled by Government and Receiv­
ing Large Amounts of Public Funds as Part of a 
State Plan for Hospital Construction Was 
Clearly Correct and Presents No Questions Cog­
nizable Under Rule 19(1)(b) of the Rules of 
This Court ......................      9

II. Those Portions of Title 42 U.S.C. §291e(f) and 
42 C.F.R. §53.112 Which Authorize Racial Dis­
crimination Are Clearly Unconstitutional..........  15

C onclusion  ............    18

T able of Cases

Ashwander v. Tenn. Valley Authority, 297 II. S. 288 .... 16

Bailey v. Patterson, 369 U. S. 3 1 ......................................  15
Baker v. Carr, 369 U. S. 186..............................................  17



11

Baldwin v. Morgan, 287 F. 2d 754 (5th Cir. 1961) .......  16
Bolling v. Sharpe, 347 U. S. 497 ...................................... 9,15
Brown v. Board of Education, 347 U. S. 483 ....... 9,10,15,16
Burton v. Wilmington Parking Authority, 365 U. S.

715 ......................................................................... 9,10,13,16

Civil Rights Cases, 109 U. S. 3 ........................................ 9,14
Cooper v. Aaron, 358 U. S. 1 ............................................ 9,14

Dawson v. Mayor and City Council of Baltimore, 220 
F. 2d 387 (4th Cir. 1955) aff’d 350 U. S. 877 ...............  15

Gantt v. Clemson Agricultural College of S. Car., 320
F. 2d 611 (4th Cir. 1963) cert. den. 375 U. S. 814.......  16

Gayle v. Browder, 352 U. S. 903 ......................................  15

Hirabayashi v. United States, 320 U. S. 8 1 ................... 9
Holmes v. City of Atlanta, 350 U. S. 879 ....... ...............  15

PAGE

Johnson v. Virginia, 373 U. S. 6 1 ....................................  15

Lombard v. Louisiana, 373 U. S. 267 ..............................  16

McCabe v. Atchison Topeka and S. F. R. Co., 235 U. S.
151 .....................................................................................  16

New Orleans City Park Improvement Association v. 
Detiege, 358 U. S. 5 4 ......................................................  15

Simkins, et al. v. Moses Cone Memorial Hospital, 323
F. 2d 959 (4th Cir. 1963) .......................... 7, 8,10,11,13,14

State Athletic Commission v. Dorsey, 359 U. S. 533 .... 15

Turner v. Memphis, 369 U. S. 350 15,17



Ill

PAGE

S tatutes and R egulations I nvolved

21 Fed. Reg. 9841 .....

42 C.F.R. §53.111.......
42 C.F.R. §53.112 .....

42 U.S.C. §291 ...........
42 IT.S.C. §291a.........

42 U.S.C. §291e(f) .... 

42 U.S.C. §291f(a)(7) 

42 U.S.C. §2911 (d) ....

42 U.S.C. §291h(d) ....

42 U.S.C. §2911i(e) ..... 

42 U.S.C. §291m .......

...................  1

...............    5

...... 1, 5, 7, 10,15

.....................  1

......................  8

5, 7, 8, 10, 14,15
.....................3,12
..................... 3,12
.....................  12

..................... 12

......................  11

S tate S tatutes

N. C. Gen. Stats. §131-120 5





In t h e

^uprmp (tort nf %  Intfrft
O ctober T erm , 1963 

No. 776

T he  M oses H . Cone M emorial H ospital, et al.,
Petitioners,

— v.—

Gr. C. S im k in s , et al., 
and the

U nited  S tates of A merica.

BRIEF IN OPPOSITION TO CERTIORARI ON BEHALF 
OF RESPONDENTS G. C. SIMKINS, ET AL.

Statement

Plaintiff, a group of Negro physicians, dentists and 
patients, brought this class action to enjoin two hospitals in 
Greensboro, North Carolina (The Moses H. Cone Memorial 
Hospital and Wesley Long Community Hospital, herein­
after called Cone and Long hospitals) and their adminis­
trators from continuing to deny them and other Negroes 
admission to staff and treatment facilities on the basis of 
race. They also sought declaration that a portion of the 
Hill-Burton Act (Hospital Survey and Construction Act of 
1946, Act of August 13, 1946, 60 Stat. 1941, as amended; 
42 U. S. C. §§291, et seq.) and a regulation pursuant thereto 
(42 C. F. R. §53.112; 21 Fed. Reg. 9841) were unconstitu­
tional. These provisions authorize racial segregation or 
exclusion of Negroes from hospitals receiving grants under



2

the Act on a separate but equal theory, as an exception to 
a statutory requirement of racial nondiscrimination.

Long is a charitable hospital governed by a self-perpetu­
ating board of twelve trustees (60a, 200a).* Cone too is a 
charitable hospital governed by fifteen trustees chosen for 
four year terms, as follows (50a-52a) :

(a) Three by Governor of North Carolina;

(b) One by Greensboro City Board of Commissioners;
(c) One by Board of Commissioners of Guilford County, 

North Carolina;

(d) One by Guilford County Medical Society;

(e) Eight were appointed by Mrs. Bertha Cone until her 
death in 1947; now they are elected by entire Board 
of fifteen;

(f) One appointed by Board of Commissioners of Wa­
tauga County, North Carolina until 1961 amendment 
to charter; now elected by entire Board.

Both hospitals are licensed to operate under the North 
Carolina “ Hospital Licensing Act” and regulations (122a- 
157a) which prescribe the management and operations of 
hospitals in great detail.* 1 Enactment of the licensing law

* Citations are to appellant’s 'Appendix in the Court of Appeals.
1 For example, the rules provide among other things for medical 

staff organization (123a) ; standards for facilities, organization, 
and procedures in surgical operating rooms (125a-126a) ; equip­
ment, organization, and procedures for the obstetric department 
(126a-131a) ; separation of pediatric facilities from those for adults 
and the newborn nursing service (132a) ; circumstances for ad­
ministration of anesthesia (132a) ; clinical pathological laboratories 
and blood tests (133a) ; that hospitals have adequate diagnostic 
x-ray and fluoroscopic examination facilities (134a) ; designated 
treatment facilities for emergency or outpatient service (134a);



3

was a prerequisite to participation in the Hill-Burton pro­
gram (42 U. S. C. §§291f(a) (7), 291f(d)).

- Both hospitals are exempt from ad valorem taxes as­
sessed by the City of Greensboro and Guilford County at 
tax rates of $1.27 and $0.82 per $100 evaluation respectively. 
The cost of the Hill-Burton construction projects for the 
two hospitals set forth in this record (Cone: $7,367,023.32; 
Long: $3,927,385.40) indicates that their property is ex­
tremely valuable and that the value of the tax exemption 
is substantial for each hospital.2

Both hospitals have a variety of contacts with govern­
ment3 as a result of their involvement in the Hill-Burton 
hospital construction program. In summary, both hospitals 
have received large amounts of public funds, paid by the 
United States to the State of North Carolina and then by 
North Carolina to the hospitals. They received the funds 
as a part of a “ State Plan” for hospital construction, which 
contemplates and authorizes them to exclude Negroes. This 
plan was approved by the Surgeon General of the United 
States. They are subject to a complex pattern of govern­
mental regulations and controls arising out of Hill-Burton 
participation.

isolation rooms (135a) ; regulation of hospital pharmacies (135a- 
136a) ; and records (136a-138a); organization of the nursing staff, 
including minimum numbers (133a-139a); detailed provision for 
hospital food service (139a-145a).

2 Assuming assessment at 50% of actual value, and given the 
combined city-county rate of $2.09 per $100, Cone’s exemption is 
worth about $76,985 per annum and Long’s is worth about $40,681 
per annum.

• 3 Cone Hospital also participates in a nurses training program 
with two tax supported, state schools, the Woman’s College of the 
University of North Carolina and the Agricultural and Technical 
College of North Carolina (an all Negro school). Student nurses 
at the schools receive part of their training at Cone (55a-57a) 
and carry out assignments at the hospital under the supervision 
of their teachers, including assisting doctors and nurses, treating 
patients, keeping hospital records, etc.



4

Federal Funds for Hospital Construction

When this action was commenced, the United States had 
appropriated $1,269,950.00 to Cone and $1,948,800.00 to 
Long. Cone’s allocation amounted to about fifteen percent 
of the total construction expenses involved in its two proj­
ects. Long’s share constituted about fifty percent of the 
total cost of its three projects (203a-204a).

The following table summarizes the various grants.4

CONE HOSPITAL
Project No. Federal Funds

and Year Appropriated
_ Approved Purpose 5/8/62
NC-86
(1954) General hospital con­

struction ........... . $ 462,000.00
NC-330
(1960) Diagnostic and treat­

ment center; gen­
eral hospital con­
struction ...............  807,950.00

Federal
Total Cost %  of
of Project Cost

$5,277,023.32

2,090,000.00

T otal ...... ...... ....... ............

NC-311
(1959) New hospital 

struction
NC-353
(1961) Laundry 
NC-358 
(1961)

........  $1,269,950.00*
LONG HOSPITAL

con-
$1,617,150.00 

66,000.00

H o s p i t a l  Nurses
Training School .. 265,000.00

$7,367,023.32 17.2%*

$3,314,749.40 ----

120, 000.00 --------

492,636.00 -— -

Total ...... -........................ -.......  $1,948,800.00** $3,927,385.40 49.6%*
* The District Court found “approximately” 15% for Cone and “approxi­

mately” 50% for Long.
**A11 funds to Cone had been paid as of 5/8/62; $1,596,301.60 had been 

paid to Long by that date.

. 4 ^ee, generally, Findings 11 through 17 (201a-204a). Further details appear 
m the original record, Exhibits A through E to plaintiffs’ Motion for Summary 
Judgment. (Parts of Exhibit B appear at 93a-103a.)



5

General Facts About Hill-Burton Program

The Hill-Burton program requires that states wishing to 
participate must inventory existing facilities to determine 
hospital construction needs and develop construction prior­
ities under federal standards. State agencies designated to 
perform this function are to adopt state-wide plans for 
hospital construction to be approved by the Surgeon Gen­
eral of the United States. The Act provides for grants of 
federal funds to construct new or additional facilities for 
government owned and voluntary nonprofit hospitals.6

The Surgeon General has authorized state plans to meet 
the racial nondiscrimination requirement of 42 U. S. C. 
§291e(f) by approving plans for separate facilities for 
“ separate population groups” (42 C. F. It. §53.112). When 
state plans are submitted on this basis, the state agency 
and the Surgeon General may waive the requirement that 
facilities built under the Act “be made available without 
discrimination on account of race, creed or color, to all per­
sons residing in the area to be served by that facility” (42 
C. F. R. §53.112; see also, §53.111).

The North Carolina State Plan

In North Carolina the state agency authorized to operate 
under the Hill-Burton program is the North Carolina Medi­
cal Care Commission (N. C. Gen. Stats. §131-120). The 
Medical Care Commission has adopted and periodically re­
vised a “ State Plan” for separate facilities for Negroes 
and whites in the Greensboro area (120a) :

Existing
Acceptable Beds

Area Name of Facility Location White
Non-

White

B-6 L. Richardson Memorial 
Hospital ____________ Greensboro 0 91

Wesley Long Hospital .. Greensboro 220 0
Moses H. Cone Hospital Greensboro 482 0

Subtotals .. 702 91

5 A useful description of the over-all program and of the various types of 
hospitals is contained in the “Affidavit and Report” of the General Counsel of



6

Accordingly, when the various project applications were 
made by Cone and Long, the required assurance against 
racial discrimination was waived by the Medical Care Com­
mission and this was approved by the Surgeon General.* * * 6

Division of Federal and $tate Controls

The overall plan of the Hill-Burton program reflects a 
division of power and responsibility between federal and 
state governments for control and supervision of various 
matters affecting participating hospitals. These provisions 
may be sorted into seven categories: (1) control over con­
struction contracts and the construction period; (2) con­
trol over details of hospital construction and equipment;
(3) control over future operation and status of hospitals;
(4) control over details of hospital maintenance and opera­
tion; (5) control of size and distribution of facilities; (6) 
rights of project applicants and state agencies; and (7) 
regulation of racial discrimination. The character of this 
“ intricate pattern of governmental regulations, both state 
and federal” is summarized by the Court of Appeals at 
323 F. 2d 964-65.

Opinions of the Courts Below

The district court found that racial discrimination was 
“ clearly established” (205a) and that the “ sole question” 
was whether “defendants have been shown to be so im-

the Department of HEW who was the principal technical drafts­
man of the law (173a-188a). This Report was filed in the district
court by the United States.

6 On Projects NC-86 and NC-330, the Cone Hospital initially 
gave an assurance of nondiscrimination, but this was withdrawn 
with the approval of the Medical Care Commission and the Sur­
geon General, on the ground that “ the non-discrimination agree­
ment was erroneously executed as a result of clerical inadvertence” 
for which the Commission was responsible (104a-106a, 201a-202a).



7

pressed with a public interest as to render them instru­
mentalities of government, and thus within the reach of the 
Fifth and Fourteenth Amendments . . . ” (206a-207a). 
After examining defendants’ various relationships with 
federal and state governmental agencies, the court con­
cluded that defendants were not subject to constitutional 
restraints against discrimination (221a). For this reason, 
the court refused to decide the validity of the separate 
but equal provision of the Hill-Burton Act (220a).

On November 1,1963 the Court of Appeals for the Fourth 
Circuit, sitting en banc, reversed the decision of the District 
Court, 323 F. 2d 959 (4th Cir. 1963). The Court, per 
Sobeloff, Chief Judge, found the necessary “ ‘degree of 
state [in the broad sense, including federal] participation 
and involvement’ ” , 323 F. 2d at 967,7 present as a result of 
the participation by the hospitals in the Hill-Burton pro­
gram. The court emphasized massive use of public funds, 
“ extensive state-federal sharing” in a common plan for 
state hospital development, and that the Hill-Burton pro­
gram was not limited to the granting of aid to individual 
hospitals: “ It shows rather a Congressional design to in­
duce the states upon joining the program to undertake the 
supervision of the construction and maintenance of ade­
quate hospital facilities throughout their territory. Upon 
joining the program a participating state in effect assumes 
as a state function the obligation of planning for adequate 
hospital care.” 323 F. 2d at 967-69. In addition, the court 
emphasized that the challenged discrimination had been 
sanctioned affirmatively by state and federal governments 
pursuant to federal law and regulation, 323 F. 2d at 968; 
42 U. 8. C. §291e(f); 42 C. F. R. §53.112.

The court also held that the constitutionality of the pro­
visions of the Hill-Burton Act which authorized racial

7 The brackets are in the court’s opinion.



8

discrimination was properly before it. Finding in the legis­
lative history of the Act a desire on the part of Congress to 
permit the states to develop programs of hospital construc­
tion that would provide adequate service “ to all their 
people” 42 U. S. C. §291a, the court held, “ it served the 
dominant Congressional purpose best to prune from the 
statutory provision only that language which adopted what 
is now known to be an unconstitutional means of establish­
ing a constitutional end.” 323 F. 2d at 969. The court, 
therefore, let stand the general prohibition against dis­
crimination in 42 IT. 8. C. §291e(f) and found unconstitu­
tional the exception tolerating separate but equal facil­
ities :

. . . but an exception shall be made in cases where sep­
arate hospital facilities are provided for separate pop­
ulation groups if the plan makes equitable provisions 
on the basis of need for facilities and services of like 
quality for each such group . ..



9

A R G U M E N T

I.

The Decision of the Court Below Enjoining Racial 
Discrimination at Hospitals Closely Regulated and Con­
trolled by Government and Receiving Large Amounts 
of Public Funds as Part of a State Plan for Hospital 
Construction Was Clearly Correct and Presents No Ques­
tions Cognizable Under Rule 1 9 ( l ) ( b )  of the Rules of 
This Court.

Decisions of this Court leave little doubt that govern­
mental action as broad, significant, and effective as that 
found in this case involves Fifth Amendment due process8 
and Fourteenth Amendment due process and equal pro­
tection9 strictures against racial discrimination. Racial 
discrimination is constitutional only when “unsupported 
by State authority in the shape of laws, customs, or ju­
dicial, or executive proceedings” or when “ not sanctioned 
in some way by the State.” 10 Discrimination is forbidden 
when the State participates “ through any arrangement, 
management, funds or property” 11 or when the State 
places its “power, property or prestige” behind the dis­
crimination.12

In this case racial segregation, which repeatedly has 
been held to constitute discrimination per se since Brown

8 Bolling v. Sharpe, 347 U. S. 497; Hirabayashi v. United States, 
320 U. S. 81, 100.

9 Brown v. Board of Education, 347 U. S. 483: Cooper v. Aaron, 
358 U. S. 1,19.

.10 Civil Bights Cases, 109 U. S. 3,17.
11 Cooper v. Aaron, 358 U. S. 1, 4, 19.
12 Burton v. Wilmington Parking Authority, 365 U. S. 715, 725.



10

v. Board of Education, 347 U. S. 483, has been explicitly 
authorized by a federal statute13 antedating Brown. The 
discrimination has been approved by agencies and officials 
of North Carolina and the United States (93a, 99a, 113a, 
120a). Large sums of public moneys have been expended 
by government to support the hospitals. They have sub­
mitted to a comprehensive pattern of state and federal 
controls in return for these funds and have become part 
of a state master plan for hospital construction on a state­
wide basis. The hospitals are aided by the state because 
they fulfill a public function which the state would have to 
perform if the hospitals did not. North Carolina has 
granted these hospitals the power to operate and the privi­
lege of receiving federal aid.14 See 323 F. 2d at 967-68.

The petition for certiorari filed by the hospitals sug­
gests that the Court of Appeals determined that the hospi­
tals should be restrained from racial discrimination solely 
on the ground that they have received money from the 
United States. Reasoning from this faulty premise, peti­
tioners urge that the court below sanctioned a rule of limit­
less application which would apply the Constitution to 
every area of human endeavor. The parade of “horribles” 
suggested by petitioners (see Petition for Certiorari, pp. 
8-10) bears, however, no relationship to the carefully 
worded and limited opinion of the Court of Appeals. In 
their zeal to obtain review before this Court, petitioners 
have asked the Court to review a decision never rendered.

Applying the principles of Burton v. Wilmington Park­
ing Authority, 365 U. S. 715, the Court of Appeals found

13 42 U. S. C. §291e(f) ; 42 C. F. R., §53.112.
14 In addition, as to Cone, two other factors should be noted: 

(1) the State has passed legislation directing public officials to 
appoint members of its governing Board and (2) the State has 
chosen to train students enrolled at public colleges at the hospital.



11

that receipt of large sums as part of a complex statutory 
plan15 for the construction of hospitals on a state-wide 
basis resulted in application of the Fifth and Fourteenth 
Amendments, 323 F. 2d at 965-67. The court also relied on 
the Congressional purpose (as shown in the legislative 
history of the Hill-Burton Act) to induce the states to as­
sume the responsibility for planning the construction, 
financing, and regulation of adequate hospital facilities 
throughout the state, and the affirmative sanction of the 
hospitals’ racial discrimination given by Hill-Burton Act 
and regulations, 323 F. 2d at 968.

The decision of the Court of Appeals is rooted in the 
peculiar soil of the Hill-Burton program. For example, 
these hospitals are subject to a variety of government con­
trols by virtue of their participation in the federal-state 
hospital construction program. The character of the physi­
cal facilities and the equipment of the hospitals is closely 
controlled by both federal and state governments. The 
effect of this regulation of construction and equipment on 
the future operations of the hospitals is manifest. Bequir- 16

16 Petitioners earnestly contend that the Hill-Burton Act itself 
expressly disclaims any federal right to exercise supervision or 
control over the administration of any hospitals receiving funds 
under the Act and rely on 42 U. S. C. §291m. Section 291m states: 

State control of agencies.— Except as otherwise specifically 
provided, nothing in this subchapter shall be construed as 
conferring on any federal officer or employee the right to 
exercise any supervision or control over the administration, 
personnel, maintenance, or operation of any hospital, diag­
nostic or treatment center, rehabilitation facility, or nursing 
home M'ith respect to which any funds have been or may be 
expended under this subject.

_ Petitioners’ reliance on this provision is misplaced. The provi­
sion states, “except as otherwise specifically provided,” and the 
Hill-Burton Act and regulations specifically provide for a great 
amount of control, 323 P. 2d at 964, 965. Secondly, the provision 
is entitled, “State control of agencies,” and can at the most be 
taken to mean that where there is possible conflict between state 
and federal agencies, state regulation should prevail.



12

ing that a hospital build and arrange a particular depart­
ment and stock it with approved equipment obviously de­
termines the character of the service the hospital will 
render in the future. Beyond this, the federal statute re­
quires that the states must directly regulate the details of 
hospital maintenance and operation. In order to partici­
pate in the Hill-Burton program North Carolina had to 
undertake an elaborate regulatory and licensing scheme 
(42 U. S. C. §§291f(a)(7), 291f(d)). This state control 
over the defendant hospitals’ operation is exact and de­
tailed (see footnote 1, supra).

The funds paid to these hospitals under the Hill-Burton 
Act are to be used solely for carrying out the project as 
approved by the State and Surgeon General.16 If the hos­
pitals sell or transfer ownership within twenty years to 
anyone not qualified under the Act to apply for funds or 
not approved by the state agency, or if the hospitals cease 
to be nonprofit, the United States is authorized to recover 
the present value of the federal share of the approved 
project.16 17

Under Hill-Burton, the number and distribution of hos­
pital beds in an area is decided by State and Federal Gov­
ernments. Once funds are granted bringing an area up to 
the standard of hospital beds considered adequate for the 
population, no further beds can be programmed. If North 
Carolina had chosen to build publicly owned hospitals in 
Greensboro, Cone and Long could have been denied all 
federal aid. On the other hand, the aid granted them now 
prohibits the construction of duplicating city, county, or 
other nonprofit facilities with federal aid. The participat-

16 42 U. S. C. §2911i (d).
17 42 U. S. C. §291h(e).



13

ing hospitals have become the chosen and exclusive instru­
ments to carry out governmental objectives.

In addition to operating “ as integral parts of comprehen­
sive joint or intermeshing state and federal plans,” 323 F. 
2d at 967, the Cone and Long hospitals are the bene­
ficiaries of approximately 1.2 and 1.9 million dollars, re­
spectively, paid to them through the Treasurer of the State 
of North Carolina, from the United States of America 
under the Hill-Burton program. Prior to receipt of Hill- 
Burton assistance, Long Hospital operated a 78-bed hos­
pital considered obsolete by North Carolina (160a) and 
unsuitable by the United States of America (93a). Long 
has now constructed and operates a 220-bed modern hos­
pital, a nurses training school and has a $120,000 laundry 
constructed under Hill-Burton with 50 per cent federal 
funds. Cone Hospital has completed construction of a 
300-bed hospital, a 182-bed addition, and a diagnostic and 
treatment center with the assistance of the United States 
and the State of North Carolina under the Hill-Burton 
program.

These federal grants in excess of a million dollars to 
each hospital distributed in accordance with state and fed­
eral priorities obviously are substantial. (The tax exempt 
status of the hospital’s property increases the financial 
subsidy. Cf. Burton v. Wilmington Parking Authority, 365 
U. S. at 724.)

The effect of governmental subsidy upon an otherwise 
private entity is highly relevant in deciding whether the 
restraints of the Constitution should apply. The argument 
of petitioners that the effect of three million dollars of 
public funds on the hospitals is insignificant for purposes 
of the Fifth and Fourteenth Amendments is erroneous. 
Here, there is a governmental participation through an 
“ arrangement,” “ funds,” and “property” calling for the ap-



14

plication of constitutional principles against discrimina­
tion. Cooper v. Aaron, 358 U. S. 1, 4, 19. It would be diffi­
cult to know what Cooper v. Aaron means if it does not 
embrace contributions of funds in the million dollar range 
to build tax exempt property.

Affirmative Governmental Sanction of Discrimination

In addition to the interrelation of the hospitals with gov­
ernment, an additional factor compels the conclusion that 
the discrimination practiced is within the purview of the 
Constitution. This discrimination was sanctioned affirma­
tively by a federal statute and regulations, and by a state 
plan for hospital construction on a segregated basis. The 
conduct of private persons is insulated from constitutional 
requirements only insofar as it is “ unsupported by State 
authority in the shape of laws, customs, or judicial or ex­
ecutive proceedings” or is “not sanctioned in some way by 
the State.” Civil Rights Cases, 109 U. S. 3, 17. Here the 
affirmative state sanction of racial segregation (the state 
plan for segregation in the Greensboro area) enables the 
hospitals to avoid giving an assurance not to discriminate 
as a condition of receiving the funds. This is in accord 
with the Hill-Burton Act (42 IT. S. C. §291e(f)) which al­
lows the states to authorize segregation in either govern­
ment hospitals or nonprofit hospitals. As segregation is 
supported by federal statute and regulations and by state 
executive decisions, i.e., the state plan, the decision of the 
Court of Appeals enjoining discrimination is clearly cor­
rect. See 323 F. 2d at 968 n. 16, and cases cited.



15

II.

Those Portions of Title 42 U. S. C. §29Ie(£ )  and 
42 C. F. R. §53 .112  Which Authorize Racial Discrimina­
tion Are Clearly Unconstitutional.

The provisions of the Hill-Burton Act and regulations 
declared unconstitutional by the court below authorize hos­
pitals receiving federal funds to segregate or exclude Ne­
groes on a separate but equal basis as an exception to a 
general statutory policy of nondiscrimination.

Since Brown v. Board of Education, 347 U. S. 483, the 
“ separate but equal” doctrine has been repudiated in re­
gard to every type of facility to which it was applied.18 * * In­
sofar as the Hill-Burton Act and federal regulations 
authorize the defendants as agencies of the state and fed­
eral governments to engage in racial discrimination, these 
provisions obviously conflict with the Fifth and Fourteenth 
Amendments. Bolling v. Sharpe, 347 U. S. 497; Brown v. 
Board of Education, supra.

The hospitals seek to avoid the massive weight of this 
authority by contending that the act does not require dis­
crimination but simply provides that a nondiscrimination 
assurance will be waived when separate facilities are pro­
vided for Negroes in the community. That the provision is 
cast in terms of a waiver permitted by government in no 
way changes its unconstitutionality. The Kansas statute 
ruled unconstitutional by this Court in Brown v. Board of

18 Dawson v. Mayor and City Council of Baltimore, 220 F. 2d
387 (4th Cir. 1955), aff’d 350 U. S. 877; Holmes v. City of Atlanta, 
350 U. S. .879; Gayle v. Browder, 352 U. S. 903; Bailey v. Patterson, 
369 U. S. 31; Turner v. Memphis, 369 U. S. 350; New Orleans 
City Park Improvement Association v. Detiege, 358 U. S. 54; 
State Athletic Commission v. Dorsey, 359 U. S. 533; Johnson v.
Virginia, 373 U. S. 61.



16

Education, supra, authorized and did not require racial 
discrimination.19

As the act and regulations authorize the discrimination 
which the Court of Appeals found unconstitutional and en­
joined, the constitutionality of the act and regulations are 
necessarily presented for decision. To the extent that the 
Constitution forbids racial discrimination by the hospitals, 
it also forbids statutory authorization of such discrimina­
tion.

To argue as do the hospitals that even if their conduct 
is subject to constitutional responsibility, respondents are 
not entitled to declaratory relief—declaring the statute 
which authorized such conduct unconstitutional—would be 
inconsistent as well as potentially confusing.20 To be sure, 
settled principles of constitutional construction reflect judi­
cial concern with unnecessary decisions of constitutional 
questions.21 But there is no suggestion in the cases—and 
more important in the theory of judicial restraint under­
lying them—that a statute authorizing invalid conduct will

19 See also Burton v. Wilmington Parking Authority, 365 U. S. 
715, 726-27, Mr. Justice Stewart concurring; McCabe v. Atchison 
Topeka and S. F. R. Co., 235 U. S. 151; cf. Lombard v. Louisiana, 
373 U. S. 267; Baldwin v. Morgan, 287 F. 2d 754 (5th Cir. 1961) ; 
Gantt v. Clemson Agricultural College of 8. Car., 320 F. 2d 611 
(4th Cir. 1963), cert. den. 375 U. S. 814.

20 The United States argued forcefully in the district court that 
failure to adjudicate the constitutionality of the Act in such a 
context would subject the administration of the Act to uncer­
tainty and subject the United States to possible liability for 
maladministration. “Not only is it unseemly for a high executive 
official of the United States to continue administering a statute 
which under the decisions of the courts seems clearly unconsti­
tutional, but if the Surgeon General misconceives his legal obli­
gations under the Act he may well subject himself to suit by those 
injured by his conduct.”  (Memorandum in support of Conclu­
sions of Law Proposed by the United States, p. 21.)

21 See Ashwander v. Tenn. Valley Authority, 297 U. S. 288, 345 
et seq.



17

not be declared unconstitutional when the conduct itself 
is held unconstitutional. Such a result would turn a rule 
of avoidance of unnecessary constitutional decisions into 
a rule of abdication. Failure to declare the separate but 
equal provisions of the Hill-Burton Act unconstitutional 
would not be avoidance of a decision of “ gravity and 
delicacy” 22 for fundamental reasons of political organi­
zation but a simple failure to articulate an inescapable 
conclusion. In Turner v. Memphis, 369 IT. S. 350, relied on 
by the hospitals, a state statute might have, under a 
strained construction, permitted the conduct enjoined and 
the court was merely applying settled principles of com­
ity in not construing the statute. Here, a federal statute 
authorizes unequivocally the racial segregation enjoined. 
Secondly, in Turner Negro plaintiffs did not seek a dec­
laration of the unconstitutionality of the statute.

Apart from vague notions of judicial restraint, the hos­
pitals suggest no viable theory upon which failure to 
adjudicate the constitutional question should be based. 
Negro physicians, dentists and patients surely have “ such 
a personal stake in the outcome of the controversy as to 
assure that concrete adverseness which sharpens presen­
tation of issues” which was said in Baker v. Carr, 369 U. S. 
186, 204, to be the “ gist of the question of standing.” And 
it is not material that the hospitals did not rely explicitly 
on the Hill-Burton Act provision authorizing segregation. 
They have received the benefit of and acted in accordance 
with its terms, and they have defended the practice which 
the statute authorizes. The constitutionality of a statute 
of the United States is inescapably bound up in this litiga­
tion, and the question is not avoided because it is not 
fully articulated in a defensive pleading. The hospitals 
did not defend explicitly on the basis of the validity of

22 Ibid.



18

their statutory authorization to segregate because deci­
sions of this Court made the success of such an argument 
improbable. Any suggestion that this constitutional ques­
tion is not shaped by the record is without merit.

In summary, the decision below accords with principles 
recently articulated by this Court. There is no conflict of 
circuits; nor is there any other persuasive reason why 
certiorari should be granted.

CONCLUSION

W herefore, f o r  the fo re g o in g  reasons, respondents p ra y  
that the w rit o f  ce r tio ra ri be denied.

B esp ectfu lly  subm itted,

J ack  Greenberg
J ames M. N abrit, III
M ichael  M eltsner 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019

C onrad O. P earson
203% East Chapel Hill Street 
P. O. Box 1428 
Durham, North Carolina

Attorneys for G. C. Simkins, et at.