Greenberg, Jack; and Others, 1995, undated - 67 of 114

    &upmte (Limit at tire lutW
October Term, 1962 

No.............

Isr t h e

I. A. W atson , Jr., T. W. N obthgeoss, S r ., W. D. S peig h t , 
Jr., A. E. H orne, S r ., M elvin  M alunda , J o h n n y  G hols- 
ton , H arold Gholston , A lfred H aynes , Jr., J o h n  
R ogers, T hom as P u gh  and C urtis K in g , on  beh a lf o f  
them selves and  others sim ila rly  situated,

Petitioners,
—v.—

C it y  of M e m ph is , a p u b lic  b o d y  corp ora te , et al.,
Respondents.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

J ack  Greenberg 
C onstance B aker  M otley 
D errick  B ell  
N orman  A m aker

10 Columbus Circle 
New York 19, New York

A. W. W illis , Jr.
588 Vance Avenue 
Memphis, Tennessee

Attorneys for Petitioners
B. L. H ooks
C. 0. H orton 
B. F. J ones 
H . T . L ockard
R. B. S ugarm on , J r .

Memphis, Tennessee
Of Counsel



I N D E X

PAGE

Citation to Opinions Below .......... ..... ..... ........................  1

Jurisdiction ...............................    2

Question Presented .............................      2

Constitutional Provision Involved ...................................  2

Statement of the C ase........................................................  2

Beasons for Granting the Writ ......................................  7

The Decision Below Conflicts With Prior Decisions 
of This Court Declaring Constitutional Bights to 
Be Personal and Present; the Delay Contemplated 
by the School Segregation Cases Is Not Applicable 
Here.

Co n c l u s io n .........................................................................................  10

A p p e n d ix .........................................................................................   11

Opinion of United States Court of Appeals for 
the Sixth Circuit........... ............................    11

T able op C a ses :

Brown v. Board of Education, 347 U. S. 483 ...............  9
Brown v. Board of Education, 349 U. S. 294 ...............  8
Buchanan v. Warley, 245 U. S. 60 ..................................  9



11

PAGE

Cooper v. Aaron, 358 U. S. 1 ......................................... 9
Cummings v. City of Charleston, 288 F. 2d 817 (4th 

Cir. 1961) ........................................................................  9

Detroit Housing Commission v. Lewis, 226 F. 2d 180 
(1955) ................................................................................  9

Florida ex rel. Hawkins v. Board of Control, 350 U. S.
413 (1956) ........................................................................  8

McLaurin v. Oklahoma State Regents, 339 U. S. 637 .... 7

Pennsylvania v. Board of City Trusts of Philadelphia,
353 U. S. 230 (1957) ......................................................  10

Sipuel v. Board of Regents of University of Oklahoma,
332 U. S. 631 ....................................................................  7

Sweatt v. Painter, 339 U. S. 629 ........................................  7



I n  th e

I h t p m n p  C o u r t  0 !  tb{t  U n i t e d  ^ t a t r o
October Term, 1962 

N o............

-------------------------------------------------------------- — i ^ > - ------------------------------------------- --------------------

I. A . W atson , J b ., T. W . N obthcboss, S r ., W . D. S peig h t , 
J b ., A. E. H orne, S r ., M elvin  M alunda , J o h n n y  G hols- 
ton , H arold G holston , A lfred H ayn es , J r ., J o h n  
R ogers, T hom as  P u gh  and C urtis K in g , on behalf of 
themselves and others similarly situated,

Petitioners,

C it y  of M e m p h is , a p u b lic  b o d y  corp ora te , et al.,

Respondents.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners in the above entitled cause pray that a writ 
of certiorari issue to review the judgment of the United 
States Court of Appeals for the Sixth Circuit entered on 
June 12,1962.

Citation to Opinions Below

The District Court did not render an opinion. Its judg­
ment was filed on June 20, 1961 and appears in the certified 
record at p. 118a, et seq. Its formal Findings of Fact and 
Conclusions of Law were filed on June 27, 1961 and appear



2

in the record at p. 105a.* The opinion of the United States 
Court of Appeals for the Sixth Circuit is reported at 303 
F. 2d 863. It is appended hereto at p. 11.

Jurisdiction

The opinion and judgment of the Court of Appeals was 
rendered on June 12, 1962 (App. 11). The jurisdiction of 
this Court is invoked pursuant to 28 U. S. C. §1254(1).

Question Presented

Whether the courts below erred in holding that principles 
stated in Brown v. Board of Education, 349 U. S. 294, which 
allow delay in desegregating public schools, apply to this 
case which involves desegregating public recreational facili­
ties.

Constitutional Provision Involved

This case involves Section One of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement of the Case

On May 13, 1960, petitioners for themselves and other 
Negro citizens residing in Memphis, filed suit in the United 
States District Court for the Western District of Tennessee, 
Western Division, for a declaratory judgment and per­
manent injunction restraining the Memphis Park Commis­
sion and others from operating public recreational facilities

* Petitioners in addition to the certified record, have filed nine 
copies of the record as printed for the use of the court below pursu­
ant to Rule 21(4) of the Rules of this Court.



3

on a racially segregated basis. Jurisdiction was based on 
28 U. S. C. §1343(c), 28 U. S. C. §§2201, 2202 and 42 U. S. C. 
§§1981,1983.

In substance they complained that defendants maintained 
some facilities exclusively for white and others exclusively 
for Negro citizens. Petitioners further alleged that they 
and other members of the class attempted to use facilities 
restricted to white persons and were barred or arrested on 
account of race or color contrary to the equal protection 
clause of the Fourteenth Amendment and 42 IJ. S. C. §1981 
(E. 2a-9a).

July 1, 1960 defendants answered (E. 10a-14a). The 
answer did not deny operating segregated recreational fa­
cilities. Eather, defendants asserted in justification: that 
facilities for Negroes were equal to those for whites; that 
Memphis provided a system of neighborhood parks desig­
nated for whites or Negroes according to the racial makeup 
of the area and that “ [i]n other than residential areas, the 
parks are used generally by all the citizens of Memphis” 
(E. 1 1 a ) t h a t  certain lands upon which recreational facili­
ties were situated were acquired under restrictive conditions 
relating to use solely by white persons; that “ problems” of 
the nature of “ riots, violence, and disharmony” (E. 12a) 
would be the likely consequence of immediate court ordered 
desegregation of all facilities and, therefore, these defen­
dants in discharge of their duties as public officers and in 
exercise of their police power felt it necessary to maintain 
the system as constituted; that a loss of revenue would

\ Evidence, however, showed that the neighborhood policy is not 
uniformly adhered to in that in some previously white but now 
predominantly Negro neighborhoods, the parks or playgrounds 
were still maintained exclusively for whites (B. 89a-90a). More­
over, at least one city-wide facility, Crump Stadium, was still op­
erated on a segregated basis (E. 91a).



4

result from a loss of attendance caused by fear of dis­
orders; that the expense of operating the parks would be 
prohibitive because of the extra police protection required, 
since “ the incidence of violence, vandalism and disorders 
among visitors to the parks of the City of Memphis is 
greatly increased in those parks frequented by Negro citi­
zens of the City of Memphis” (E. 14a).

The cause came on for trial on June 14-15, 1961. The 
facts were established substantially as plaintiffs alleged: 
The City of Memphis, through its Park Commission, oper­
ated and maintained a public recreational system of 131 
parks and facilities on a racially segregated basis. Of these 
131, 108 were “ developed,” 25 were “ undeveloped” (i.e., on 
raw land); 25 of the developed facilities were restricted to 
use by whites (R. 44a, 46a, 77a, 80a). Forty “ neighborhood” 
playgrounds were restricted to white persons, 21 to Negroes, 
8 community centers were restricted to whites and 4 to 
Negroes, and there were 5 white and 2 Negro golf courses 
and 2 “ city-wide” white stadiums (E. 73a-74a, 80a, 81a).2 
Negroes who attempted to use “ white” facilities were denied 
admission and in some cases were arrested if they refused 
to leave when ordered (E. 22a, 88a-89a).

The Park Commission’s policy was to open up parks 
from time to time for all citizens (R. 46a). It had recently 
removed racial restrictions at three “ city-wide” facilities 
as part of its gradual desegregation plan (R. 47a)3 and 
other facilities throughout the city were scheduled to be

2 In addition, the Park Commission operates 56 playgrounds and 
facilities on property owned by various churches; 30 designated as 
“white,”  the rest restricted to Negroes (R. 80a-81a).

3 At at least one of these facilities, however, racial bars had 
not been completely removed; the toilet facilities at Overton 
Park Zoo were still segregated at the time of trial (R. 96a). Testi­
mony also revealed that at one of the older “ integrated” facilities, 
Court Square, there were toilets for whites only (R. 86a).



5

desegregated on a gradual basis in accordance with that 
plan (R. 47a-50a). Commission officials and the local chief 
of police testified that, in their opinion, any desegregation 
in public recreational facilities taking place in any manner 
other than that proposed by the Commission’s gradual plan 
would produce turmoil, confusion, and perhaps bloodshed 
in the City of Memphis (R. 49a, 55a, 62a, 101a-103a), al­
though there had not been any violence in the past due to 
the integration of facilities nor had any “ agitators” ap­
peared (R. 64a, 95a~96a, 103a). The belief that immediate 
integration of all facilities would lead to violence was based 
only on anonymous letters and phone calls that were re­
ceived when facilities had been integrated in the past (R. 
62a). They further testified that Memphis having been 
“ singularly blessed by the absence of turmoil up to this 
time,” the Park Commission, “ consistent with good rela­
tions,” desired to make all City-wide facilities available to 
Negroes “with all deliberate speed” (R. 50a).

There was evidence relating to an art gallery and museum 
known as the “ Pink Palace” in support of defendants’ 
assertion that certain lands upon which public recreational 
facilities had been built had been acquired pursuant to 
deeds containing racially restrictive covenants; it was 
urged, therefore, that complete integration should await 
construction of this deed by the Tennessee courts (R. 39a- 
43a).4

On June 20, 1961 the District Court, the Honorable 
Marion Boyd, entered judgment denying petitioners’ appli­
cation for permanent injunction as prayed in the complaint, 
approving the Park Commission’s gradual plan (R. 118a- 
119a), requiring defendants to submit a further plan with 
respect to integration of playgrounds and community

4 However, the Pink Palace Museum has been opened for Negro 
use one day per week (R. 59a) without objection from the corporate 
grantor or its successors (R. 58a-60a).



6

centers within a period of six months,5 and staying decision 
with reference to the Pink Palace Museum until the Chan­
cery Court of Shelby County, Tennessee had opportunity 
to determine the effect of integration of the races upon the 
title of the City of Memphis to this property (R. 118a- 
121a). The Court in its Findings of Fact and Conclusions 
of Law (R. 105a-117a) found that because of the local con­
ditions in Memphis, additional time was needed to accom­
plish full desegregation of the public recreational facilities 
and that the gradual plan was in the public interest and 
was “ consistent with good faith implementation of the gov­
erning constitutional principles as announced in Brown v. 
Board of Education [349 U. S. 294 (1955)]” (R. 117a).

Petitioners on July 7, 1961 appealed to the United States 
Court of Appeals for the Sixth Circuit. On June 12, 1962 
that Court affirmed the judgment of the District Court on 
the Findings of Fact and Conclusions of Law of the District 
Judge. The Court of Appeals stated that the sole issue 
tendered by petitioners on their appeal was whether the 
allowance of any delay in total desegregation of all Mem­
phis recreational facilities deprived them of their constitu­
tional rights, i.e., whether the decision in the second Brown 
case applied to public recreational facilities as well as to 
public schools. In deciding this issue, the Court said:

We are of the view that the principle stated in Brown 
v. Board of Education, supra, relating to the desegrega­
tion of schools, is applicable to the present case, involv­
ing the desegregation of recreational facilities of the 
City of Memphis. In our opinion the Brown decision 
is not limited to cases involving public schools, as is 
here contended by appellants. Detroit Housing Com­

5 Under the provisions of this plan which was submitted on oral 
argument in the Court of Appeals at that Court’s request, complete 
integration of all facilities would not occur until 1971. The plan, 
however, was not made part of the record.



7

mission v. Lewis, 226 F. 2d 180, 194, 185 (CA 6 ); see 
also Cummings v. City of Charleston, 288 F. 2d 817 
(CA4)  (App. p. 22).

REASONS FOR GRANTING THE WRIT

The Decision Below Conflicts With Prior Decisions o f 
This Court Declaring Constitutional Rights to Be Per­
sonal and Present; the Delay Contemplated by the School 
Segregation Cases Is Not Applicable Here.

Previous decisions of this Court have stressed the present 
nature of constitutional rights. In Sweatt v. Painter, 339 
U. S. 629, 635, this Court said, “ [i]t is fundamental that 
these cases concern rights which are personal and present” 
(emphasis added). In McLaurin v. Oklahoma State Regents, 
339 U. S. 637, a case involving the admission of a Negro to 
a state-supported institution of higher education, this Court 
declared: “ [w]e concluded that the conditions under which 
this appellant is required to receive his education deprives 
him of his personal and present right to the equal protec­
tion of the laws,” at p. 642 (emphasis added). See, also, 
Sipuel v. Board of Regents of University of Oklahoma, 
332 U. S. 631, 632-33:

The petitioner is entitled to secure legal education 
afforded by a state institution. To this time, it has 
been denied her although during the same period many 
white applicants have been afforded legal education 
by the State. The State must provide it for her in 
conformity with the equal protection clause of the Four­
teenth Amendment and provide it as soon as it does 
for applicants of any other group. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, 83 L. ed. 208, 59 S. Ct. 
232 (1938) emphasis added).



8

Notwithstanding this undeviating line of authority, the 
Court below in reliance on Brown v. Board of Education, 
349 U. S. 294, sanctioned delay here. But shortly following 
the second Brown decision this Court made clear that it 
did not apply outside the area of elementary and high 
school education. Florida ex rel. Hawkins v. Board of 
Control, 350 U. S. 413 (1956). By extending Brown beyond 
the area indicated as permissible by this Court, the Court 
of Appeals ignored the reasons for that ruling.

Because of the complexity of the issues involved, the 
need to completely overhaul the public educational systems 
of numerous states, and because attendance at such public 
schools was compulsory and involved very large numbers 
of people, it was deemed a proper exercise of equitable 
jurisdiction to allow for some delay in the implementation 
of the rights that had been declared. Hence, the Brown 
decision was determined by the special problems with which 
it dealt. The Court made it quite clear that it was con­
cerned with the “ solution of varied local school problems” 
which would arise because of its decision. 349 U. S. 299 
(emphasis added). Declaring that, “ [a]t stake is the 
personal interest of the plaintiffs in admission to public 
schools as soon as practicable on a nondiscriminatory 
basis,”  349 IT . S. 300 (emphasis added), the Court pointed 
out with extreme care that delay was attributable to prob­
lems relating to school administration. Even as to this, 
the Court recognized only five such problems.6

Florida ex rel. Hawkins v. Board of Control, supra, under­
scored the limited reach of the second Brown opinion. This

61) The physical condition of the school plant; 2) the school 
transportation system; 3) personnel; 4) revision of school districts 
and attendance areas into compact units to achieve a system of de­
termining admission to the public schools on a nonracial basis; 
5) revision of local laws and regulations where necessary. 349 U. S. 
300-301.



9

Court’s remand of a suit by a Negro seeking admission to 
graduate school for reconsideration in. light of Brown v. 
Board of Education, 347 U. S. 483 (1954) “ did not imply 
that decrees involving graduate study present the problems 
of public elementary and secondary schools.” “ Thus,”  the 
Court continued, “ our second decision in the Brown case . . .  
had no application to a case involving a Negro applying 
for admission to a state law school.” 350 U. S. 413. The 
problems involved in the desegregation of public recrea­
tional facilities, even further removed from lower school 
education and obviously less complex, do not compel a 
different conclusion.

Moreover, the cases cited below in support of the judg­
ment do not justify making an exception to the settled 
rule of this Court. Detroit Housing Commission v. Lewis, 
226 F. 2d 180 (1955), another Sixth Circuit case, upheld a 
District Court order to integrate forthwith public housing 
units, but held that the order contemplated only a gradual 
not immediate change in occupancy. Yet, the order of the 
District Court did require defendants to cease immediately 
the use of separate waiting lists for housing applicants. 
Obviously, as a practical matter, nonsegregated occupancy 
could not be accomplished immediately. And in Cummings 
v. City of Charleston, 288 F. 2d 817 (4th Cir. 1961), the 
only delay approved was that agreed upon by the parties. 
Any further delay was struck down.

Moreover, the justification proposed in support of delay 
here was avoidance of racial conflict (R. 49a, 55a, 62a, 101a- 
103a). But wherever this claim has been urged, this Court 
has rejected it. Buchanan v. Warley, 245 U. S. 60, 81 
(1917); Cooper v. Aaron, 358 U. S. 1, 16.

The court below decided the case contrary to the holdings 
of this Court in another respect in affirming that part of 
the District Court’s judgment which stayed adjudication



10

with respect to the Pink Palace Museum and allowed defen­
dants to have determined in the courts of Tennessee the 
effect of integration on the City’s title to the property. 
A finding by the Tennessee courts that racial integration 
would cause reversion to the grantor would not relieve the 
District Court of its duty under the Fourteenth Amend­
ment since the City of Memphis cannot give scope to a 
racially restrictive grant in its operation of the museum. 
See Pennsylvania v. Board of City Trusts of Philadelphia, 
353 U. S. 230 (1957).

CONCLUSION

W herefore, f o r  the fo re g o in g  reason s p etition ers  re ­
sp ectfu lly  request that the p etition  fo r  ce r tio ra r i be 
granted .

Respectfully submitted,

J ack  G reenberg 
Constance B aker  M otley 
D errick  B ell 
N orman  A m aker

10 Columbus Circle 
New York 19, New York

A. W. W illis , Jr.
588 Vance Avenue 
Memphis, Tennessee

Attorneys for Petitioners
B. L. H ooks

C. 0. H orton 
B. F. J ones 
H. T. L ockard

R. B. S ugarm on , Jr.
Memphis, Tennessee

Of Counsel



APPENDIX

Opinion of United States Court of Appeals 
For the Sixth Circuit

No. 14662

UNITED STATES COURT OF APPEALS 

F ob th e  S ix t h  C ibcuit

I. A. W atson , J r ., et al.,

Plaintiffs-Appellants,

Citt  o f  M e m p h is , et al.,

Defendants-Appellees.

ON A PPE A L FROM  T H E  U N IT E D  STATES D ISTR IC T COURT FOR T H E  

W E ST E R N  DISTRICT OF T E N N E SSE E , W E ST E R N  DIVISION

Decided June 12,1962.

B e f o r e  :

M cA llister  and O ’S u llivan , Circuit Judges, 
and S tarr, Senior District Judge.

M cA llister , Circuit Judge. This is an appeal from a 
judgment of the district court denying a permanent injunc­
tion restraining the Memphis Park Commission and others 
from operating and maintaining certain public recreational 
facilities on a racially-segregated basis; approving a plan 
proposed by appellees for a gradual desegregation of cer­



12

tain of these facilities; and ordering the Memphis Park 
Commission to file, within a six-months’ period, a further 
plan for the desegregation of all recreational facilities of 
the City.

In the complaint filed in this class action on behalf of 
appellees and others, it was alleged that the City of Mem­
phis had denied certain of the appellants access to the Pine 
Hill Golf Course, the McKellar Lake Boat Hock, the 
Brooks Art Gallery, the John Rogers Tennis Court, and 
the Pink Palace Museum, solely because of the fact that they 
were Negroes. Prior to the hearing of this case in the dis­
trict court, the City of Memphis had already desegregated 
the McKellar Lake Boat Dock and the Brooks Art Gallery; 
and the Pine Hill Golf Course had been desegregated prior 
to the time of the argument of this appeal. At the time of 
the hearing in the district court, the City of Memphis was 
undecided whether it would sell the John Rogers Tennis 
Court, because it was such valuable property. However, 
it has since been desegregated. As to the Pink Palace 
Museum, it was given to the City on the condition that it 
should be used only by white people, with a provision of 
reverter in the deed, in case of violation of this condition; 
and the district court ordered the City, within ninety days, 
to file suit in the courts of Tennessee for a declaratory 
judgment in order to secure a full adjudication of all mat­
ters that might affect the use, and reversion, and to deter­
mine what effect integration of the races at the Museum 
would have upon the title of the City of Memphis to the 
property.

It may be generally said, then, that the complaint of 
appellants as to the refusal of the City to permit them to 
use the parks specified in their allegation on the ground of 
racial discrimination has been remedied by the City 
through its action in desegregating the recreational facili­
ties in question. However, appellants rest their claim on 
the other allegation of their complaint to the effect that



13

the City of Memphis is violating their constitutional rights 
in maintaining and operating all of its other parks, play­
grounds, and recreational facilities upon a racially- 
segregated basis. It was in regard to these facilities that 
the district court issued an order requiring the City to sub­
mit, within a six-months’ period, a plan for the total de­
segregation of all of its recreational facilities.

Appellants’ contention is that the law permits of no 
delays on the part of the City of Memphis in effecting the 
desegregation of all its parks and recreational facilities, 
and that the district court was in error in not ordering all 
of the parks and recreational facilities of the City of Mem­
phis to be immediately desegregated. Specifically, appel­
lants claim that the district court committed reversible 
error “ in holding that the decision in Brown v. Board of 
Education, 349 U. S. 294, which contemplates allowing a 
delay in the desegregation of public elementary and sec­
ondary schools, where certain conditions exist, is applicable 
in any action involving public recreational facilities.” As 
contended by appellants, “ logic as well as law requires lim­
iting approval of delay to litigation involving public ele­
mentary and secondary schools, for attendance in such 
schools is compulsory almost everywhere whereas no one 
is compelled to utilize public recreational facilities.”

The background of the case is as follows: The City of 
Memphis has a population of approximately 500,000 peo­
ple, of whom 63% are white, and 37% are Negro. Approxi­
mately 100,000 children participate in one or more of the 
recreational activities sponsored by the Memphis Park 
Commission and carried on through its Recreational De­
partment. This is a remarkable civic achievement on the 
part of the City of Memphis and its citizens. Of the 
100,000 children participating, approximately 65,000 are 
white, and 35,000 are Negro. The Department sponsors 
many and varied types of recreational activities, including,



14

but not limited to, competitive sports, such as baseball and 
basketball, as well as dancing and similar activities. The 
Recreational Department headquarters is itself operated 
on an integrated basis. All Negro Supervisors and Direc­
tors are paid on the same salary schedule as the white 
Supervisors and Directors; and the qualifications of white 
and Negro Supervisors and Directors are the same. The 
Recreational Department of the Memphis Park Commission 
is rated by competent authorities as the best in the South; 
and its recreational program for Negroes as the finest in 
the country.

Upon the trial, it appeared that the City of Memphis, 
through its Park Commission, operates and maintains 131 
parks and facilities, of which 108 are developed, and 23 are 
undeveloped, or “ raw” land, that 25 of the developed facili­
ties are restricted to Negroes; 25 are open to both races; 
and 58 are restricted to white persons; that the facilities 
operated on a racially-segregated basis include 40 neigh­
borhood playgrounds for white persons, and 21 for 
Negroes; 8 white, and 4 Negro community centers; 5 
white, and 5 Negro swimming pools; 5 white, and 2 Negro 
golf courses; and 2 “ city-wide” white stadiums. It appears 
that, over the years of the past, it has been the policy of the 
Park Commission to designate parks and playgrounds as 
white or Negro, according to the racial character of the 
neighborhood. Pursuant to this policy, at the time of the 
trial, the district court found that 6 facilities would be 
changed from white to Negro use in the near future and 
that, as a result, the ratio for community centers would 
be changed from 8 white and 4 Negro centers to, 1 inte­
grated, 7 white, and 4 Negro centers; and for swimming 
pools, the ratio would be changed from 5 white, and 5 
Negro swimming pools, to 4 white, and 6 Negro swimming 
pools. It appeared on the trial that the Park Commission 
had recently removed all racial restrictions at 3 “ city-wide”



15

facilities, namely: Overton Park Zoo, the Art Gallery in 
Overton Park, and the McKellar Lake Boat Dock. In June, 
1961, the Park Commission’s plan, which was approved by 
the court in the instant case, proposed to desegregate Fair­
grounds Amusement Park at the end of 1961. This park, 
at the time of the hearing of this appeal, had already been 
desegregated. The Park Commission’s plan also proposed, 
beginning in January 1962, to desegregate all 7 public golf 
courses on a three-year schedule. Four golf courses had 
already been desegregated at the time of the hearing of 
this appeal.

From the testimony of the Director of Parks of the City 
of Memphis, it appeared that, as each park and facility was 
desegregated, more recreational directors and supervisors 
were necessary and were appointed, and more policemen 
were required to patrol the parks and playgrounds. As an 
instance, the opening of the zoo on a desegregated basis 
made it necessary to increase the police protection there. 
The Director of Parks further testified that if there were 
immediate desegregation of all parks and playgrounds, the 
City would be obliged to reduce the number of available 
playgrounds in order to give the children full protection, 
and that such action would result in a denial of recrea­
tional facilities to a great number of children, both white 
and Negro. The Director also testified that one of the 
chief purposes of the recreational program was to cut down 
on juvenile delinquency of all children; and that one of 
the objectives, in this regard, was to keep as many children 
as possible “ off the streets,” during the summer vacation 
period. This objective would obviously be frustrated if 
numerous playgrounds were closed.

The Superintendent of the Recreational Department of 
the Memphis Park Commission, with thirty-six years of 
experience in the field of public recreation, testified that if 
there were immediate and total integration of parks and



16

playgrounds of Memphis, “many, many of the playgrounds 
would have to be closed down” ; more supervisors would be 
needed; there would be much additional violence and con­
fusion; and, in his opinion, the playground system would 
be ruined. He had previously studied the matter of de­
segregation of golf courses in a number of southern cities, 
including Atlanta, Nashville, Dallas, and New Orleans, 
where he had learned that there had been some trouble 
during the integration progress but no bloodshed or vio­
lence. However, he did state that with regard to the play­
grounds in Memphis, they had been obliged, on occasion, 
to call the police because of rowdies and trouble-makers, 
at the Negro parks, as well as at the white parks.

In explaining what he meant by “ confusion,” the Super­
intendent alluded to an experience which they had in Mem­
phis where, because of the large numbers congregating for 
certain events, at “ one of the closing exercises for Negroes 
at Lincoln Park, we had bloodshed, and shootings, and 
knifings, and it became necessary to break that down into 
separate closing exercises because of the trouble we had.” 
This was an instance of what the Superintendent called 
“ confusion” resulting from exercises participated in by 
great numbers of people at parks and playgrounds; and 
this “ confusion” had nothing to do with desegregation, 
since all of those taking part in the exercises were Negroes. 
The difficulty obviously arose from a congregation of 
toughs, juvenile delinquents, and criminal elements, who, 
out of all proportion to their numbers, can cause trouble, 
violence, fighting, and bloodshed, among a great crowd of 
innocent people.

James C. Mcdonald, Chief of Police of the City of Mem­
phis, who had been with the Police Department twenty-one 
years, stated that he had given several years of thought 
and consideration, since the decision in the Brown case, to 
the problems of desegregation in Memphis, from the stand­



17

point on the preservation of law and order; that when 
trouble resulted from “ sit ins” and desegregated seating 
in busses, the Police Department, as soon as it received a 
call, would send three or four police cars “ to get there as 
quickly as possible to keep down any violence.” He fur­
ther stated that he had been consulted by the Park Commis­
sion, that he thought its plan was good, and that since the 
Brown case was decided in 1954, a number of facilities in 
Memphis had been opened on a non-segregated basis, in­
cluding libraries, the zoo, and other facilities. In the 
opinion of the Chief, the key to the solution of the problem 
was the timing—“where it would be on a gradual basis 
where the hot heads wouldn’t have a chance to act. . . . 
We will have a little idea of what is coming off and can lay 
our groundwork for it and hope to be able to handle the 
situation.”

Chief Macdonald put it succinctly: “ You have a few in 
any bunch that will agitate trouble. I have seen it a lot of 
times that a few will cause a lot of people to get in trouble.” 
He stated that he thought they had been, very fortunate 
with so-called agitators in Memphis as compared to other 
communities, and that they did not have the agitation in 
Memphis that there had been in other places. In his opin­
ion, the police could not handle the situation if all the park 
facilities were integrated at one time.

Mr. Harry Pierotti, Chairman of the Memphis Park 
Commission, stated that the City of Memphis had been 
singularly blessed by the absence of turmoil on the race 
question up to the date of the hearing of this case, and that 
he felt it was one of the Park Commission’s duties to all 
the people of Memphis, white and Negro, to keep it that 
way. He stated: “ I am going to abide by the rules of this 
court or get off the Park Commission, because I want no 
instance here like they have had in other parts of the 
South. And I believe that we can live better as a people



18

if you permit us to desegregate these things on a gradual 
basis. . . . Not only have I, but the other members of the 
Commission have, given this a long, hard look, and a lot 
of serious thought. This plan which we are evolving, and 
which we are asking the court to approve, is not one which 
was gotten up overnight. It was the result of a good many 
conferences with the members of my Commission and with 
other people. . . . Among other people, we have conferred 
with the law-enforcing officials and have gotten their opin­
ion in the matter.” He further stated that, upon integrat­
ing any facility, it, of course, involves additional personnel 
to make the transition period a smooth one, and that the 
consideration of avoiding confusion and turmoil in the 
community was a very strong factor in their determination 
as to when and what facilities should be integrated. In 
addition to the avoidance of confusion and violence, the 
city officials also took into consideration the effect of imme­
diate or gradual desegregation upon the question of revenue 
from concessions operated by others for the Commission, 
and by the Commission itself.

The concessions, for certain amusement devices, oper­
ated by individuals, are granted by the Commission for 
rentals based upon gross receipts. The Commission felt 
that if it were to desegregate the Fairgrounds Amusement 
Park in the middle of the year, it would be unfair to such 
concessionaires and detrimental to the Commission. This 
amusement park was, however, to be desegregated six 
months after the hearing in the district court, or on Janu­
ary 1, 1962, and it has been desegregated since that date. 
The income from concessions, or similar operations, aggre­
gated three quarters of a million dollars a year, or a third 
of the budget, and the Park Commission is obliged to earn 
this amount in order to operate the various facilities. If a 
large number of the facilities were closed down, the oper­
ating income would be seriously curtailed. Mr. Pierotti



19

stated that one of the reasons for his favoring the plan of 
a more gradual desegregation, rather than immediate in­
tegration of all the parks and recreational facilities, was 
what he stated to be the rather peculiar situation and loca­
tion of Memphis,—a city of a half a million people, with 
more than one-third of its population consisting of Negro 
citizens; with the State of Arkansas just across the river 
from Memphis; and the State of Mississippi, five miles 
south of the city limits of Memphis; where such surround­
ing area was predominantly Negro; and where those people 
from this surrounding area made use of the recreational 
facilities. He felt that since the taxes used to maintain 
these parks and recreational facilities were paid by the 
citizens of Memphis, the predominance of a colored popula­
tion, composed not only of Negro citizens in Memphis, but 
including many in the adjoining areas of Mississippi and 
Arkansas, wrho used the parks, would “ promote”  violence 
on the part of both Negroes and whites, in case of imme­
diate desegregation of all of the parks, playgrounds and 
recreational facilities of the City of Memphis; and he 
based his opinion on his consultations with the park offi­
cials, the police officers, and his knowledge of the City and 
its people.

None of the evidence introduced on behalf of the City of 
Memphis is questioned. Whether the system of organized 
play in which these thousands of children take part, may 
be greatly curtailed or put in jeopardy by immediate de­
segregation of all the parks and playgrounds, is deemed 
irrelevant by appellants. The probable closing down of 
many of these facilities is considered equally irrelevant by 
appellants, as are any questions of orderly transition, police 
protection, maintenance of the present friendly and peace­
ful relations between all of the white and colored citizens 
of Memphis.



20

The evidence before us shows that what the City of Mem­
phis proposes is not a mere promise to do something, some­
time in a remote or uncertain future. On the trial it 
submitted a plan for the desegregation for a number of the 
parks and recreational facilities of the City, of which a 
substantial part had already been carried out after the 
plan was prepared, and before the hearing in the district 
court. It was further shown that the City had also deseg­
regated a further substantial number of recreational facili­
ties, subsequent to the hearing in the district court, and 
before the arguments in this court on the present appeal; 
and, from the statements made during arguments on 
appeal by counsel for the City as to the plan and intention 
of the City, which apparently were not doubted by counsel 
for appellants, it would appear that a substantial part of 
a specified program of desegregation has been carried out 
since the arguments on appeal. We therefore have before 
us a program of desegregation that has been carried out, 
is being carried out at the present time, and will be carried 
out in the future until all of the City’s parks, playgrounds, 
and recreational facilities are desegregated.

The plan for the desegregation of all of the City’s recrea­
tional facilities, which the district court ordered to be filed 
within a six-months’ period after the hearing, is not, of 
course, in the record before us, nor has the district court 
had, as yet, the opportunity of approving it as a proper 
plan to effect the desegregation, with all deliberate speed, 
of all the parks, playgrounds, and recreational facilities 
of the City of Memphis. This plan, which, it appears, has 
been formulated, but which has not yet been filed with the 
district court, because of this intervening appeal, is not 
before us, therefore, for consideration.

The plan of the Memphis Park Commission, which was 
before the district court for integration of certain recrea­



21

tional facilities, provided for the desegregation of the 
Fairgrounds Amusement Park by the end of 1961; for the 
desegregation of three golf courses by March 1, 1962; for 
the desegregation of three more golf courses (one, used at 
present exclusively by Negroes) before March 1, 1963; and 
for the desegregation of the last of the seven municipal 
golf courses at the end of 1963. Moreover, in the plan, the 
Memphis Park Commission stated that it proposed to 
accelerate this program where judged practicable.

The foregoing was the plan which the district court 
approved; the court also directed that the City should file 
a further plan for the integration of all of the parks, play­
grounds, and recreational facilities within a period of six 
months from the date of its judgment; and the court ex­
pressly retained jurisdiction of the case for such further 
proceedings as might be necessary from time to time.

Appellants made no specified objections to the plan which 
the district court approved. As the court stated in its 
opinion:

“ No valid objection to this plan in the Court’s opin­
ion is offered in this case. The plaintiffs merely say 
they want all of these facilities fully integrated now. 
Nothing else seems to matter.”

This court is not in a position, at the present time, to 
adjudicate concerning the preliminary plan which the dis­
trict court approved at the hearing. No objection has 
been made to any of its terms. The only complaint before 
us is that all of the parks, playgrounds, and recreational 
facilities of the City of Memphis were not immediately 
desegregated by order of the district court. As to the 
preliminary plan approved by the court, we know that four 
of the seven municipal golf courses are presently available 
to colored people, as well as the principal amusement park. 
There may be others. There may have been an acceleration



22

of the program; but appellants, as far as this case goes, 
are not interested in that question. Their claim is that no 
delay whatever is permissible; and that the allowance of 
any delay in the total desegregation of all Memphis recrea­
tional facilities deprives them of their constitutional 
rights.

As to the plan which the district court directed appellees 
to file, there is no objection to the approval of such plan, 
as it has not yet been filed, and the district court, neces­
sarily, has been unable either to approve or disapprove such 
plan before the appeal was taken to this court.

We return, then, to the sole issue in the case raised by 
appellants: that the law permits of no delay on the part of 
the City of Memphis in effecting the desegregation of all 
of its parks and recreational facilities; that the district 
court was in error in not ordering all of the parks and 
recreational facilities to be immediately desegregated; and 
that the decision in Brown v. Board of Education, 349 IT. S. 
294, is inapplicable to a case involving public recreational 
facilities.

We are of the view that the principle stated in Brown v. 
Board of Education, supra, relating to the desegregation 
of schools, is applicable to the present case, involving the 
desegregation of recreational facilities of the City of Mem­
phis. In our opinion the Brown decision is not limited to 
cases involving public schools, as is here contended by 
appellants. Detroit Dousing Commission v. Lewis, 226 
F. 2d 180, 184, 185 (CA 6 ); see also Cummings v. City of 
Charleston, 288 F. 2d 817 (CA 4).

In its findings of fact and conclusions of law, the district 
court said :

“ Full implementation of the constitutional princi­
ples as announced in the Brown Case requires solution 
of varied local problems. Local authorities, and in this 
case the responsible Park Commission officials, have



23

the primary responsibility of elucidating, assessing 
and solving these problems. The District Courts have 
the obligation of determining whether the action of 
local authorities constitutes good faith implementation 
of the governing constitutional principles; and in 
fashioning and effectuating decrees, the Court is 
guided by equitable principles. Traditionally, equity 
has been characterized by a practical flexibility in shajj- 
ing its remedies and by a facility for adjusting and 
reconciling public and private needs.”

“ In determining whether defendants are acting in 
good faith in recognizing the constitutional rights of 
Negro citizens to make use of the Park Commission 
facilities on a nonsegregated basis, it is proper for the 
Court to consider (1) local conditions and local prob­
lems as to facilities, and teacher or supervisory per­
sonnel, as well as local problems of maintaining, dur­
ing the transition period, maximum recreational 
facilities for all citizens, White and Negro; (2) im­
portance of time to accomplish change-over from a 
partially segregated system to an integrated one; (3) 
good will and understanding heretofore obtaining be­
tween the races, and (4) avoidance of confusion and 
turmoil and maintenance of law and order in the com­
munity during the transition period.”

“ Defendants have shown by a preponderance of the 
evidence that additional time is necessary to accom­
plish full desegregation of all facilities operated by 
the Memphis Park Commission, and defendants have 
further shown that their plan and program for grad­
ual desegregation is necessary, in the public interest, 
and is consistent with good faith implementation of 
the governing constitutional principles as announced 
in Brown v. Board of Education, supra, taking into 
account all of the local conditions and problems herein­



24

above set out; and the Court has concluded, in the 
exercise of its discretion, that the prayer for the declar­
atory judgment and injunctive relief should be denied.”

Considering the great number of parks, playgrounds, 
and recreational facilities maintained by the City of Mem­
phis; the remarkably large number of children—65,000 
white children and 35,000 Negro children—participating in 
the program under the guidance of trained supervisors 
and directors of planned recreation; the circumstances 
showing a substantial desegregation of many of the City’s 
recreational facilities, prior to the hearing in the district 
court, and a continuing program of desegregation since 
that time; the evidence that immediate desegregation of 
all of the City’s parks, playgrounds, and recreational facili­
ties would result in great damage to the organized system 
of play for many children, and the probable closing of a 
number of recreational facilities, due to the necessity of 
providing considerable additional police protection and park 
supervision; the past and present success of the continuing 
plan of desegregation now being peacefully and harmoni­
ously carried out by the City; the unquestioned good faith 
of the officials of the City and Park Commission in attempt­
ing to comply, in the field of recreation, with the opinion 
of the Supreme Court in Brown v. Board of Education, 
both before the hearing of this case in the district court, 
and since that time; the requirement that the Park Com­
mission file a plan for desegregation of the City’s park and 
recreational system to be subject to the approval of the dis­
trict court; the fact that this appeal was taken before the 
plan, ordered by the court, was filed, and that the district 
court has never had an opportunity to approve or dis­
approve such a plan—these considerations require a deter­
mination that, under the circumstances of this case, there



25

was a proper exercise of discretion by the district court in 
denying injunctive relief, in providing for a plan of de­
segregation to be filed by the Park Commission with the 
court, and in reserving jurisdiction for further proceedings 
in the case; and in accordance with the foregoing, the judg­
ment of the district court is affirmed on the findings of 
fact and conclusions of law of Judge Boyd.



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