Rhett v Carnegie Center Associates Petition Writ of Certiorari

    I n  t h e

Bmteit $5>UteB ©curt of
F oe t h e  F if t h  Cikcuit

No. 21,968

F lagler H ospital, Inc. and Claude L. W eek s ,

Appellants,
—v.—

R obert B. H ayling, et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA

BRIEF FOR APPELLEES

J ack Greenberg 
M ichael  M eltsner  
Charles S t e p h e n  R alston 
L eroy D. Clark

10 Columbus Circle 
New York, New York

E arl M. J ohnson

625 West Union Street 
Jacksonville, Florida

Attorneys for Appellees



IN D E X

Statement of Case ................-........................................  1
A. General Facts About Hill-Burton Program ........  4
B. The Florida State Plan .......................................  5
C. Division of Federal and State Controls .............. 6

A rgum ent

I. Flagler Hospital’s Contacts With Government 
Are Sufficient to Place It Under the Restraints 
of the Fifth and Fourteenth Amendments 
Against Racial Discrimination .........................  12

II. Plaintiffs Have Standing to Obtain the Relief 
Granted by the Court Below............................  24

III. The Maintenance of Racially Segregated Wards 
Is in and of Itself Such a Denial of Plaintiffs’ 
Constitutional Rights as to Require Relief, and 
the Relief Granted Was Proper........................  28

Co n c l u s io n ...................................................................... 35

Certificate of Service.....................................................  36

A ppen dix  ...................        37
Federal and Florida Statutes and Regulations Gov­

erning the Receipt of Hospital Funds .................  37
Hill-Burton Act and Regulations ........................  37
Civil Rights Act of 1964 ..........................................  38
Assurance of Compliance With the Department of 

Health, Education, and Welfare Regulations ........  39
Florida Statutes Annotated: Public Health ........... 44

PAGE



11

T able of Cases

page

Allen v. County School Board of Prince Edward 
County, 198 F. Supp. 497 (E. D. Va. 1961) ...... ....... 17

Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963)    26
Bailey v. Patterson, 369 U. S. 31 (1962) ....... .............  27
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ...... 19, 22
Bass v. Hoagland, 172 F. 2d 205 (5th Cir. 1949), cert.

denied 338 U. S. 816 (1949) ....... .............. ................. 24
Betts v. Easley, 161 Kan. 459, 169 P. 2d 831..............18,19
Board of Public Instruction of Duval County, Fla. v.

Braxton, 326 F. 2d 616 (5th Cir. 1964) ......... ...........  27
Bolling v. Sharpe, 347 U. S. 497 (1954)........................ 15, 28
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ....................... ..................................... 18,19, 22
Brown v. Board of Education, 347 U. S. 483 (1954) 16, 23, 28 
Burton v. Wilmington Parking Authority, 365 U. S. 715 

(1961) .......................................... ...16,17, 20, 21, 22, 23, 28

Civil Bights Cases, 109 U. S. 3 (1883)............................  16
Cooper v. Aaron, 358 U. S. 1 (1958) ............................ 16,17

Eaton v. Board of Managers of the James Walker 
Memorial Hospital, 261 F. 2d 521 (4th Cir. 1958),
cert, denied 359 TJ. S. 984 (1959) ...............................  20

Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ....13,16,17,
20, 29

Flemming v. South Carolina Electric & Gas Co., 224 F.
2d 752 (4th Cir. 1955), appeal dismissed, 351 U. S.
901 (1956) ............. .......................................... ..........  22

Gayle v. Browder, 352 U. S. 903 (1956) ..................... 28
Goss v. Board of Education, 373 U. S. 683 (1963) ..........  28



I l l

Hampton v. City of Jacksonville, 304 F. 2d 320 (5th Cir. 
1962), cert, denied sub nom. Ghioto v. Hampton, 371
IT. S. 911 (1962) ........ .......... ....................................19, 20

Henderson v. United States, 339 U. S. 816 (1950) ......  28
Hirabayashi v. U. S., 320 U. S. 81 (1943) .......... ....... 15
Hogan v. O’Neil, 255 U. S. 52 (1921) ..........................  13

Johnson v. Virginia, 373 U. S. 61 (1963) ..................... 28

McCabe v. Atchison Topeka and S. F. R. Co., 235 U. S.
151 (1914) ................................................... ................. 22

McLaughlin v. Florida,-----  U. S .----- , 13 L. Ed. 2d
222 (1964) .................................................................. 28, 32

Ming v. Horgan, 3 Race Rel. L. Rep. 693 (Cal. Super.
Ct. 1958) ....................................................................  18

Nasif v. United States, 165 F. 2d 119 (5th Cir. 1947) .... 34

Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) ..............25, 26
Public Utilities Commission v. Poliak, 343 U. S. 451 

(1952)...............................................      17

Rackley v. Board of Trustees of Orangeburg Regional
Hospital, 310 F. 2d 141 (4th Cir. 1962) ....... ......... 27, 30

Railroad Trainmen v. Howard, 343 U. S. 768 (1952) .... 18 
Railway Employees Dept, v, Hanson, 351 U. S. 225

(1956) .......................................................................... 18
Russell C. House Transfer & Storage Co. v. United 

States, 189 F. 2d 349 (5th Cir. 1951) ......................... 34

Siinkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 
959 (4th Cir. 1963), cert, denied, 376 U. S. 938
(1964) ________ 3, 9,12,13,14,15,17,18, 20, 21, 23, 29, 31

Smith v. Holiday Inns, 336 F. 2d 630 (6th Cir. 1964) ....17, 20

PAGE



IV

Steeley v. Louisville N. R.R. Co., 323 IT. S. 192 (1944) .... 18 
Stell v. Savannah-Chatham County Board of Educa­

tion, 318 F. 2d 425 (5th Cir. 1963) ............................  34
Syres v. Oil Workers Int’l Union, 223 F. 2d 739 (5th 

Cir. 1955), rev’d per curiam, 350 U. S. 892 (1955) .... 18

Thaxton v. Yaughan, 209 F. Supp. 106 (W. D. Va.,
1962) , aff’d 321 F. 2d 474 (4th Cir. 1963) .............. 27, 31

United States v. City of Jackson, 318 F. 2d 1 (5th Cir.
1963) ................................................ ...........................

United States v. City of Shreveport, 210 F. Supp. 708
(W. D. La. 1962), aff’d 316 F. 2d 928 (5th Cir. 1963)

Virginia v. Hamm, 230 F. Supp. 156 (E. D. Va. 1964),

PAGE

aff’d ----- U. S .------ , 13 L. Ed. 2d 91 (1964)    29

Watson v. City of Memphis, 373 U. S. 526 (1963) ......  28
Williams v. Hot Shoppes, 293 F. 2d 835 (D. C. Cir. 

1961) ............................................................................. 23

34

34

F ederal S tatutes

42 U. S. C. >291 i> ........         5
42 U. S. C. $291(a), (c) .........................................     9
42 U. S. C. i291c(l)) ...............         7
42 U. S. C. §291d(7) ____        9
42 U. S. C. §291d(9) .........     9
42 U. S. C. (291 e ............        6
42 U. S. C. §291e(b) .......... ...........................................  5
42 U. S. C. §291e(f) ......................................................29,37
42 U. S. C. §291e(f) 1958 Ed..................... ......5,10,11,13,15
42 U. S. C. >291 f(a) (4) (D) 1958 Ed........ ........................  10



V

PAGE

42 U. S. C. §291f(d) 1958 Ed........    9
42 U. S. C. §291h............         10
42 U. S. C. §2911i(a) 1958 Ed..............................   10
42 U. S. C. §291i....... ......................... ........................... 8
42 U. S. C. §29In, ____       8
42 U. S. C. §292g .................................... ................ ......8,10
The Health Research Facilities Act of 1956; 42 U. S. C. 

§§292 et seq..................... ................................. ......... 8

Title VI of the Civil Rights Act of 1964, 42 U. S. C.
§§2000d et seq......... ............................... ............. ........5,11

44 U. S. C. §307 .......... ............... ........... .............. ..........  13

F ederal R egulations

41 C. F. R. §53-7 (V) ........... ..........................................  21
42 C. F. R. §53.11 .........................................................  9
42 C. F. R. §53.13 ............     10
42 C. F. R. §§53.71-53.80 ......................    10
42 C. F. R. §53.111__           10
42 C. F. R. §53.112.................. ......................5,10,11,15, 29
42 C. F. R. §53.124 ................       7
42 C. F. R. §53.125 ..........    7
42 C. F. R. §53.127(b) ......... ....................... .......... . 10
42 C. F. R. §53.127(c) (l)-(9) ............. .................... . 6
42 C. F. R. §53.127 (d)(1) ....................       8
42 C. F. R. §53.127(d) (4) ......................     10
42 C. F. R. §53.127(d) (5) ..........................    9
42 C. F. R. §53.127(d) (6) .....       10
42 C. F. R. §53.128 .........................................     6
42 C. F. R. §53.130 .........       8
42 C. F. R. §53.134 ______        7



VI

42 C. F. E. §§53.150(a), 53.151............ ............... ...........  7
42 C. F. R. §§53.131-53.155 ........................................... 7

S tate S tatutes

F. S. A. §288.03(17) ........................................... ......... 5
F. S. A. §380.01(1) ...... ........................... ......................  5
F. S. A. §§395.01 et seq......... ..................... ............... .....  9
F. S. A. §§395.07, 395.09 ............................ ...................  7
Florida Licensing Act, Laws of Florida, 1947, c. 24091 9

Ot h er  A utho rities

H.R. 10041, Report No. 1274, Senate Labor and Public 
Welfare Comm., 88th Cong., 2nd Sess..... .............. . 4

110 Cong. Rec. 2398, daily ed. February 7, 1964 ..........  31
110 Cong. Rec. 6325, daily ed. March 30, 1964  ...... ......  31

PAGE



I n  THE

United #tatrn (Emixt of A ppals
F or t h e  F if t h  C ircuit

No. 21,968

F lagler H ospital, I n c . and Claude L. W eek s ,

— v .—
Appellants,

R obert B. H ayling, et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA

BRIEF FOR APPELLEES

Statement of Case

Appellees are four Negro citizens of the United States 
and the State of Florida, residing in the City of St. Augus­
tine, Florida. Having been subjected to racial segregation 
as patients in Flagler Hospital they brought this action in 
the United States District Court for the Middle District of 
Florida, Jacksonville Division, on behalf of themselves and 
other Negroes similarly situated (R. 2).

Appellant Flagler Hospital, Inc., is a non-profit corpora­
tion, organized and operating under the laws of the State 
of Florida (R. 9). It owns and operates Flagler Hospital, 
a charitable, tax exempt institution located in St. Augus­
tine (R. 7, 9). Claude L. Weeks is the Administrator of



2

Flagler Hospital. It is undisputed that in 1959, Flagler 
Hospital applied for and received Federal Funds under 
the Hill-Burton Act (Title VI of the Public Health Service 
Act of 1946; 42 H. S. C. §§291, et seq.) (E. 3, 7). The funds, 
in the amount of $629,545.95, were used for construction 
of additional hospital facilities and replacement or mod­
ernization of old facilities, the total cost of which wTas 
$1,398,991.00.

In their complaint, plaintiffs alleged that they had been 
subjected to racial segregation as patients in Flagler Hos­
pital, that they intend to use the hospital in the future, 
and that they brought this action in their own behalf and 
as representatives of the class of Negro persons who would 
be similarly treated (E. 2). The complaint alleged that the 
hospital,

. . .  is pursuing a policy, practice, custom and usage of 
segregating Negro patients from white patients in 
treatment areas solely on the basis of race. Defendant 
also requires Negro student nurses to use dining and 
toilet facilities separately from white student nurses 
(E.3).

The hospital in its answer admitted that plaintiffs were 
Negro residents of St. Augustine, that they had been 
patients at Flagler Hospital, and that as such they had 
been assigned rooms in the “Negro unit” of the Hospital. 
Defendants said that they were without knowledge as to 
whether plaintiffs intended to use the Hospital in the future 
and as to the allegation that plaintiffs represented other 
Negroes similarly situated (E. 7). The Hospital first de­
nied that Negro patients were segregated in “treatment 
areas” (E. 8), but then qualified the denial by limiting the 
term only to non-ward and non-room areas. Defendants 
did admit that Negro patients as a class were segregated



3

in rooms and wards in a “Negro unit” and that “waiting 
rooms and public restrooms are maintained for Negroes 
separate from waiting rooms and public restrooms main­
tained for white persons” (E. 8, 9). In addition, the Hos­
pital conceded that “separate dining rooms and toilet facil­
ities are maintained for Negro student nurses and em­
ployees of the Hospital.”

On August 13, 1964 the District Court, in response to 
Negro plaintiffs’ motion for judgment on the pleadings, 
found that the Hospital admitted receipt of federal Hill- 
Burton funds and operation of “segregated dining rooms 
and toilet facilities for Negro student nurses and employees 
and racially segregated rooms, wards and restrooms for 
Negro patients” (R. 13). The District Judge concluded 
that the Hospital’s admission of segregation and partici­
pation in the Hill-Burton program justified injunctive re­
lief under the theory of Simkins v. Moses II. Cone Memorial 
Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 373 
IT. S. 938 (1964); and entered an order enjoining defen­
dants from continuing to operate the Hospital on a segre­
gated basis, and from “denying the Plaintiffs and the class 
they represent admission to, conditioning or abridging 
their admission to, or conditioning use of the facilities and 
services of, the Defendant Hospital, on the basis of race” 
(E. 14-16).

Hill-Burton Program

Flagler Hospital has a variety of contacts with govern­
ment as a result of its involvement in the Hill-Burton Hos­
pital construction program. In summary, it has received 
$629,545.95 in public funds; it received these funds as part 
of a “state plan” for allocation of hospital facilities which 
contemplated and authorized Flagler Hospital to provide 
segregated facilities for Negroes, which was so approved



4

by the Surgeon General of the United States under statu­
tory authorization; and it is subject to a complex pattern 
of governmental regulations and controls arising out of 
Hill-Burton participation.

A. G eneral Facts A b o u t H ill-B u rto n  P ro g ra m

The Hill-Burton program requires that states wishing 
to participate must inventory existing facilities to deter­
mine hospital construction needs and develop construction 
priorities under federal standards. State agencies are des­
ignated to perform this function and to adopt state-wide 
plans to be submitted for the approval of the Surgeon 
General of the United States. The Act establishes grants of 
federal funds for construction of new or additional facili­
ties for governmentally owned hospitals and voluntary non­
profit hospitals. In 1964, the Hill-Burton program wras 
expanded to apply to hospital modernization, long-term 
care facilities and area planning by the “Hospital and 
Medical Facilities Amendments of 1964.” Public Law 88- 
443, 78 Stat. 447. The “Amendments,” which did not modify 
the basic Hill-Burton structure, are summarized in the 
Report to accompany H. R. 10041, Report No. 1274, Senate 
Labor and Public Welfare Comm., 88th Cong., 2nd Sess.

In the first seventeen years of the program (1947-1964), 
approximately $2.1 billion of federal funds were approved 
for such projects. Slightly more than half of the total went 
to voluntary nonprofit hospitals. In the same period state 
and local funds (governmental and nongovernmental) to­
taled about $4.6 billion; thus, the federal share of Hill- 
Burton projects was about thirty per cent of their total 
cost. About 311,000 additional hospital beds were made 
available by the program.1 It is generally agreed that “the

1 See Report to Accompany H. R. 1004, Report No. 1274, Senate 
Labor and Public Welfare Comm., 88th Cong., 2nd Sess.



5

program has had a marked effect in raising State licensing 
standards and in improving the design, maintenance and 
operations of health facilities in every state.” 2

The allotment of federal funds among the states is de­
termined by a mathematical formula based on population 
and per capita income (42 U. S. C. §291b).3 The “federal 
share” of costs of particular projects within a state is gov­
erned by federally approved state plans (42 U. S. C. §291e 
(b))-

Until 1964 when the Act was amended to eliminate refer­
ence to discrimination in light of Title VI of the Civil 
Rights Act of 1964, 42 U. S. C. §§2000d, the Surgeon Gen­
eral was authorized to permit state plans to meet the racial 
non-discrimination requirement of 42 U. S. C. §291e(f), 
1958 ed., by planning separate facilities for “separate pop­
ulation groups” (42 C. F. R. §53.112). When state plans 
were submitted on this basis (as was the Florida Plan 
(R. 7)), the state and the Surgeon General were permitted 
to waive the requirement that facilities built under the Act 
“be made available without discrimination on account of 
race, creed or color, to all persons residing in the area to 
be served by that facility” (42 C. F. R. §53.112; see also, 
§53.111).

B. The Florida State Plan

In Florida, the state agency authorized to administer the 
Hill-Burton program is the Florida Development Commis­
sion (F. S. A. §380.01(1)). The Commission is authorized 
to prepare and revise a state plan for hospital facilities 
complying with the provisions of §291d of the Hill-Burton 
Act (F. S. A. §288.03(17)).

2 Ibid.
3 Citations are to 42 U. S. C. 1964 ed. unless otherwise indicated. 

Citations to the Code of Federal Regulations (C. F. R.) are to the 
1962 revision of the Public Health Service Regulations unless 
otherwise indicated.



6

C. D ivision  o f  F ederal and  S ta te  C ontro ls

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. The following 
description of the statutory and regulatory framework 
applicable to defendant hospital divides the provisions into 
seven categories: (1) controls over construction contracts 
and the construction period; (2) controls over details of 
hospital construction and equipment; (3) controls over 
future operation and status of hospitals; (4) controls over 
details of hospital maintenance and operation; (5) control 
of size and distribution of facilities; (6) rights of project 
applicants and state agencies; and (7) regulation of racial 
discrimination. The following is designed to enumerate 
and describe the statutes and regulations which are too 
lengthy conveniently to be set out in full.

1. Controls over construction contracts and the con­
struction period. (Federally imposed rules.)

The Surgeon General is authorized by 42 U. S. C. §291e 
to enforce certain requirements. Applicable regulations 
are in 42 C. F. R. §53.127(c) (l)-(9 ),4 5 and in §53.128.6

4 To briefly summarize the requirements, hospitals must give 
assurances that: (1) “fixed price” construction contracts will be 
used, with competitive bidding and awards to the lowest respon­
sible bidder; (2) construction laborers will be paid federally 
prescribed minimum wages; (3) contracts will provide against 
“kick-backs” ; (4) bidding advertisements will await the Surgeon 
General’s approval of final drawings and specifications; (5) Sur­
geon General must approve of any contracts in excess of approved 
costs; (6) contractors agree to furnish performance bonds and 
insurance; (7) contract changes increasing costs must be approved 
by Surgeon General; (8) Surgeon General and State agency will 
have access to inspect work during progress; and (9) competent 
architects and engineers supervise construction work.

5 This provision governs the details of installment payments and
provides for State agency inspection of work and certification 
that federal payments are due.



7

2. Control over details of hospital construction and 
equipment. (Federal minimum standards, and allowance 
for states to impose higher standards.)

The Act authorizes the Surgeon General to prescribe 
“General standards of construction of hospitals and equip­
ment for facilities of different classes and in different types 
of location” (42 U. S. C. §291c(b)). The Surgeon General 
has adopted detailed regulations—Subpart M of the Public 
Health Service Regulations, “General Standards of Con­
struction and Equipment” (42 C. F. R. §§53.131 to 53.155). 
He has provided that plans and specifications for each 
project must be in accord with them (42 C. F. R. §53.125). 
In Florida, additional standards for hospital physical facil­
ities are authorized by F. S. A. §§395.07, 395.09, enacted 
in order to permit the State to participate in the Hill- 
Burton program, see infra, p. 9.

The federal construction and equipment standards are 
designed “to insure properly planned and well constructed 
hospital[s] . . . which can be maintained and efficiently 
operated to furnish adequate service” (42 C. F. R. §53.131).6

3. Control of future status and operations of hospitals. 
(Federal requirements.)

6 The federal standards of Subpart M are so detailed that they 
can be described here only in very general terms as regulating hos­
pital sites, the departments required in hospitals and the type of 
facilities to be available in each department, and other require­
ments for all hospitals. There is detailed description of the types, 
sizes, locations, contents, arrangements, equipment and other char­
acteristics of almost every hospital area. To illustrate the detail, 
in all hospitals there are required door widths, corridor widths, 
stair widths, elevator standards, and rules pertaining to laundry 
chutes, nurses call systems, fire safety, ray protection, radioisotopes, 
x-ray equipment, ceiling heights, insulation, parking space, and 
floor, wall, and ceiling finishes (42 C. F. K. §§53.150(a), 53.151). 
See the detailed regulation of each general hospital department, 
42 C. F. R. §53.134.



The Act provides that if within 20 years after completion 
of a project a hospital is sold to anyone who is not qualified 
to file an application under the Act or is not approved by 
the State agency, or if the hospital ceases to be “nonprofit,” 
the United States can recover a proportionate share of its 
grant to the hospital (42 U. S. C. §291i). The State agency 
is required to give notice of any such changes of status 
(42 C. F. E. §53.130).

In addition, the State agency is required to certify that 
an application “contains reasonable assurance as to title, 
payment of prevailing rates of wages, and financial support 
for the non-federal share of the cost of construction and 
the entire cost of maintenance and operation when com­
pleted” (42 C. F. R. §53.127(d)(l)). Hospitals are required 
to submit proposed operating budgets and other financial 
data relating to the two year period following completion 
of a project “to assure the availability of funds for main­
tenance and operation” (id.).

4. Control over details of hospital maintenance and oper­
ation. (State control of operations required by federal 
law.)

The Hill-Burton Act has a provision entitled “State 
control of operations” which denies federal officers “the 
right to exercise any supervision or control over the admin­
istration, personnel, maintenance, or operation” of facili­
ties receiving grants, “except as otherwise provided” (42 
U. S. C. §291m).7 But, the Act says that State Plans must 
“provide minimum standards (to be fixed in the discretion 
of the State) for the maintenance and operation of hos­

7 Another slightly different provision, 42 U. S. C. §292g, relates 
only to research facilities aided under another law (“The Health 
Research Facilities Act of 1956” ; 42 U. S. C. §§292 et seq.) and does 
not apply to hospitals under Hill-Burton.



9

pitals” which receive Federal aid (42 U. S. C. §291d(7)).8 
No federal grants may be allotted to any state which does 
not enact “legislation providing that compliance with min­
imum standards of maintenance and operation shall be re­
quired . . . ” (see 42 U. S. C. §291f(d) 1958 ed.). Federal 
regulations require the State agency to certify that each 
project application “contains an assurance that the ap­
plicant will conform to the State standards for operation 
and maintenance . . . ” (42 C. F. E. §53.127(d) (5)).

Accordingly, after the passage of the Hill-Burton Act, 
Florida enacted a Hospital Licensing and Regulation Act 
(F. S. A. §§395.01 et seq.) authorizing the adoption of 
regulations governing hospital maintenance, operation, and 
inspection and requiring all hospitals to obtain a license. 
The Hill-Burton Act set an initial deadline of July 1, 1948, 
for states wishing to participate to enact such requirements 
(42 U. S. C. §291f(d) 1958 ed.), and Florida enacted its 
Licensing Act in 1947 (Laws of Florida, 1947, c. 24091).

5. Size and distribution of facilities. (Federal and State 
control.)

The Act provides for federal decision as to the number of 
general hospital beds and other facilities required to pro­
vide “adequate facilities” in a State, for general methods 
of distribution in areas of a State, and for the general 
manner in which a State agency shall determine priorities 
of projects based on relative need (42 IT. S. C. §291c(a), 
(c)). State allowances in terms of number of beds per 
thousand population have been fixed by regulation (42 
C. F. E. §53.11), as have the methods to be used by State

8 “These provide in detail for the management of hospitals under 
general headings such as administration, clinical services, auxiliary- 
services, nursing service and food service.” Simkins v. Moses H. 
Cone Memorial Hospital, 323 F. 2d 959, 964 (4th Cir., 1963).



10

agencies in distributing hospitals in a State (42 C. F. R. 
§§53.12, 53.13). Federal standards governing the state 
agencies’ determination of the priority of projects are set 
out in 42 C. F. R. §§53.71 to 53.80. See also 42 C. F. R. 
§53.127(b), and 42 C. F. R. §53.127(d)(6).

6. Rights of project applicants and State agency. (Fed­
eral requirements.)

A project applicant is granted the right to “a fair hear­
ing before the State agency” if “dissatisfied with any action 
of the State agency regarding its application” (42 C. F. R. 
§53.124; see 42 U. S. C. §291d(9)).

The Act provides that before the Surgeon General may 
withhold payments for any project, the State agency shall 
be accorded a hearing by the Surgeon General (42 U. S. C. 
§291g). A State agency dissatisfied with action of the 
Surgeon General on a project application may obtain re­
view of his decision in the United States Court of Appeals 
for the Circuit (42 U. S. C. §291h). 7

7. Regulation of racial discrimination. (States formerly 
allowed to plan racial separation as exception to federal 
non-discrimination requirement.)

Until the 1964 “Amendments,” the Hill-Burton Act pro­
hibited racial discrimination in general terms, providing 
that State Plans “shall provide for adequate hospital facil­
ities for the people residing in a State without discrimina­
tion on account of race, creed or color” (42 U. S. C. §291e(f) 
1958 ed.). Both state plans (42 U. S. C. §291f (a) (4) (D) 
1958 ed.) and project applications (42 U. S. C. §291h(a) 
1958 ed.) were subject to the nondiscrimination require­
ment. The parallel regulations are 42 C. F. R. §§53.111, 
53.127(d)(4).



11

However, the Act authorized the Surgeon General to 
make regulations permitting State Plans to provide an ex­
ception to the racial nondiscrimination rule by establishing 
separate hospital facilities for separate population groups 
if there is “equitable provision” for each group in the area 
(Title 42 U. S. C. §291e(f) 1958 ed.). The Surgeon General 
promulgated such a regulation (42 C. F. R. §53.112), per­
mitting the State agency to waive assurances of nondis­
crimination from a hospital if the State Plan otherwise 
makes equitable provision for each group, and this finding 
is approved by the Surgeon General.9 It also includes the 
Surgeon General’s standard for determining if “equitable 
provision” is made for such groups (id.).

When the 1964 “Amendments” to the Hill-Burton pro­
gram were enacted reference to discrimination was elim­
inated apparently because such a provision would duplicate 
Title VI of the Civil Rights Act of 1964, 42 U. S. C. §§2000d 
et seq. providing that “No person . . .  be excluded from par­
ticipation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving 
Federal financial assistance.”

9 See R. 7.



12

A R G U M E N T

I.

Flagler Hospital’s Contacts With Government Are 
Sufficient to Place It Under the Restraints of the Fifth 
and Fourteenth Amendments Against Racial Discrimina­
tio n .

The District Court found Flagler Hospital subject to 
constitutional restraints against racial discrimination on 
the basis of the hospital’s admission that it received ap­
proximately $629,000.00 from the United States for con­
struction of additional facilities and replacement and mod­
ernization of old facilities (R. 8) and on the authority of 
■Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 
959 (4th Cir. 1963), cert, denied 376 U. S. 938, holding hos­
pitals receiving federal funds under the Hill-Burton pro­
gram forbidden to discriminate.

The Hospital urges that the District Court erred for the 
reason that (1) the Simkins decision, supra, does not apply 
to the present ease, and (2) if applicable should not be 
followed by this Court.

The Hospital seeks to distinguish the Simkins decision 
on the ground that a more detailed record was before the 
Fourth Circuit in that case, but such an argument misses 
the mark. Admission of Hill-Burton participation by Flag­
ler Hospital placed all material facts before the District 
Court, for, in Simkins, the Court of Appeals found two 
nonprofit hospitals subject to the Fifth and Fourteenth 
Amendments because they received federal funds “as inte­
gral parts of comprehensive, joint, or intermeshing state 
and federal plans or programs designed to effect a proper 
allocation of available medical and hospital resources” on a



13

nationwide and statewide basis, 323 F. 2d at p. 967. The 
operation of the Hill-Burton program is set forth in federal 
and Florida statutes and regulations promulgated by the 
Surgeon General of the United States, all of which are 
always before a court of the United States.10 (Plaintiffs 
have attempted to summarize the operation of the Hill- 
Burton program in the statement, supra, pp. 3-11. An 
admirable description appears in the opinion of the Court 
of Appeals in Simkins, 323 F. 2d at pp. 962-965.)

Significantly, the Hospital fails to indicate what facts 
relied upon in Simkins are not present here. The Hospital 
makes the assertion11 that the court below did not consider 
whether the Florida programmed exclusion of certain “pop­
ulation groups” from Flagler Hospital pursuant to 42 
U. S. C. §291e(f) 1958 ed. This statement is flatly contra­
dicted by the answer of the Hospital which explicitly admits 
federal funds were sought and obtained to operate separate 
facilities for separate population groups (R. 7). The record 
also refutes the claim that the district judge had noth­
ing before him “on the subject of the proportionate 
degree or extent of state or federal financial participa­
tion,” 12 for the answer clearly reveals the total cost of the 
project and the proportion provided by the United States 
(R. 8). The Hospital urges that the hospitals in Simkins 
received over $3 million in federal funds (1.2 million to 
one; 1.9 million to the other) where it has received a 
meager $629,000.00. But even assuming such a difference 
had some constitutional significance (see Eaton v. Grubbs, 
329 F. 2d 710 (4th Cir. 1964)), it would be more than com­

10 See, e.g., Hogan v. O’Neil, 255 U. S. 52, 55; the Surgeon Gen­
eral’s Regulations are judicially noticeable by statute, 44 U. S. C. 
§307.

11 Appellants’ Brief, p. 23.
12 Ibid.



14

pensated by the fact that one of the Simkins hospitals re­
ceived only 17.2% of the total cost of its projects from the 
federal government. The funds received by Flagler account 
for about 45% of the total construction costs.

The Simkins decision rests on an appraisal of the hospital 
construction program created by the Hill-Burton Act and 
Regulations. Indeed, it is clear that the Fourth Circuit 
relied on the general character of the statutory scheme and 
not its effect on a particular hospital: “ ‘ . . . emphasis on 
the creation of a state-wide system of hospitals for the pro­
vision of hospital service to all the people of the state 
[which] indicates that the Hill-Burton program was not 
limited to the granting of financial aid to individual hos­
pitals (emphasis in original).’ ” 18

An alternative ground of decision in Simkins—that dis­
crimination was sanctioned by federal law—requires for 
its application to defendant nothing but the admission of 
Flagler Hospital that federal funds were received “pur­
suant to an application approved by the Surgeon General 
of the United States which provided:

“the requirement of nondiscrimination has been met 
because this is an area where separate facilities are 
provided for separate population groups and the state 
plan otherwise makes equitable provision on the basis 
of need for facilities and services of like quality for 
each such population group in the area” (R. 7). 13

13 “ ‘It shows rather a congressional design to induce the states 
upon joining the program to undertake the supervision of the con­
struction and maintenance of adequate hospital facilities through­
out the territory. Upon joining the program a participating state 
in effect assumes as a state function the obligation for planning for 
adequate hospital care. And it is, of course, clear that when a state 
function or responsibility is being exerted, it matters not, for 
Fourteenth Amendment purposes, that the . . . [institution actually 
chosen] would otherwise be private: the equal protection guarantee 
applies.’ ” 323 F. 2d at 968.



15

Here, as in Simkins, the record clearly establishes that 
“the challenged discrimination has been affirmatively sanc­
tioned by both the state and the federal law and regula­
tions, 42 U. S. C. A., §291e(f) [1958 ed.]; 42 C. F. K. 
§53.112.” Simkins, supra, 323 F. 2d at 968.

The decision of the Court of Appeals for the Fourth 
Circuit supports the judgment of the district judge. So 
does the denial by United States Supreme Court of timely 
petition for certiorari to review that decision, 376 U. S. 
938. While denial of certiorari is not always accorded 
weight as precedent, it is quite evident that the Supreme 
Court’s failure to review the Simkins decision is of great 
significance, for by refusing to grant the writ the Court 
upheld a declaration of the unconstitutionality of an Act 
of Congress.14 The Fourth Circuit decision and the denial 
of certiorari “occasioned a reevaluation” of the Act by its 
Administrator and repeal of regulations permitting “sep­
arate but equal” facilities to be programmed, 42 C. F. E. 
§53.112 (filed May 18,1964).

The holding in Simkins that the state and federal gov­
ernments are significantly involved in the conduct of Hill- 
Burton hospitals such as to invoke the restraints against 
racial discrimination of the Fifth and Fourteenth Amend­
ments to the Constitution is clearly correct. Decisions of 
the United States Supreme Court leave little doubt that 
such governmental action results in the application of the 
due process clause of the Fifth Amendment,15 and the due 
process and equal protection clauses of the Fourteenth

14 The strength of the decision is further attested by the inter­
vention of the United States in support of the position of Negro 
physicians and patients.

15 Bolling v. Sharpe, 347 U. S. 497; Hirabayashi v. U. S.. 320 
U. S. 81.



16

Amendment.16 Racial discrimination is constitutional only 
when “unsupported by state authority in the shape of 
laws, customs, or judicial, or executive proceedings” or 
when “not sanctioned in some way by the state.” 17 Discrim­
ination is forbidden when the state participates “through 
any arrangement, management, funds, or property” 18 or 
when the state places its “power, property or prestige” 
behind the discrimination.19

In this case, racial segregation was explicitly authorized 
by a federal statute. The discriminatory practices have 
been approved by agencies and officials of Florida and the 
United States (R. 7; see supra pp. 10, 11). A large amount 
of public funds have been expended by government to sup­
port the hospital which in turn has submitted to a compre­
hensive pattern of state and federal controls. Florida has 
granted the hospital the power to operate and the privilege 
of receiving federal aid. The hospital is aided by the state 
because it fulfills a public function which the state would be 
obliged to perform under its Hill-Burton responsibility if 
the hospital did not. The interrelation of these factors 
creates a relationship of “benefits mutually conferred” 
sufficient to invoke the Constitution. Burton v. Wilmington 
Parking Authority, 365 U. 8 . 715, 724.

First. The federal grant in excess of $600,000.00 to 
Flagler Hospital, distributed in accordance with state 
and federal priorities and plans is obviously substantial. 
The tax exempt status of the hospital increases the financial 
subsidy granted by the government, cf. Burton v. Wilming­
ton Parking Authority, 365 U. S. 715, 724; Eaton v. Grubbs,

16 Brown v. Board of Education, 347 U. S. 483; Cooper v. Aaron, 
358 U. S. 1.

17 Civil Bights Cases, 109 U. S. 3,17.
18 Cooper v. Aaron, 358 U. S. 1, 4,19.
19 Barton v. Wilmington Parking Authority, 365 U. S. 715, 725.



17

329 Fed. 710, 713 (4th Cir. 1964); Allen v. County School 
Board of Prince Edward County, 198 F. Supp. 497, 503 
(E. D. Ya. 1961). Thus there is government participation 
through an “arrangement,” “funds,” and “property” call­
ing for application of constitutional principles against dis­
crimination. Cooper v. Aaron, 358 U. S. 1, 4, 19. It would 
be difficult to know what the Cooper v. Aaron principle can 
mean if it does not embrace contribution of over $600,000.00 
amounting to 45% of the cost of tax exempt property.

Second. Hill-Burton hospitals are subject to a variety 
of governmental controls by virtue of and participation in 
the federal-state hospital program. The character of the 
physical facilities and hospital equipment is closely con­
trolled by federal and state governments. See, supra, pp. 
6, 7. The effect of this regulation of construction and 
equipment on the future operations of the hospital is mani­
fest. Requiring that a hospital build and arrange a par­
ticular department and stock it with approved equipment 
obviously determines the character of the service the hos­
pital will render in the future. Beyond this, the Hill-Burton 
Act requires that the states directly regulate the details of 
hospital maintenance and operation in order to participate 
in the Hill-Burton program. Florida has had to undertake 
and formulate a licensing and regulatory scheme in order 
to participate in the program. See, supra, p. 9.

The control exercised by government over the construc­
tion and planning of Hill-Burton hospitals gives rise to 
constitutional responsibility. See Burton v. Wilmington 
Parking Authority, 365 U. S. at 723-25; Simkins, supra, 
at 323 F. 2d 966, 967; Smith v. Holiday Inns, 336 F. 2d 630, 
634 (6th Cir. 1964). See also Public Utilities Commission 
v. Poliak, 343 U. S. 451, 462.20

20 There the Supreme Court found sufficient governmental re­
sponsibility to require decision of a Fifth Amendment due process



18

The hospital in this ease is also like the certified labor 
unions required to represent all persons within a particular 
bargaining unit without discrimination. As labor organiza­
tions receive substantial power and benefits by having been 
licensed and regulated under federal law, the Supreme Court 
has found that serious Fifth Amendment due process ques­
tions would arise if the federal statutes involved were not 
construed to require nondiscrimination.21 Hill-Burton hos­
pitals are licensed and controlled by government and have 
received substantial benefits under a comprehensive federal 
scheme for regulation of an area of national importance to 
much the same extent as labor organizations.

Third. The licensing process enacted by Florida to com­
ply in Hill-Burton requirements, in which Florida grants 
these hospitals the power to operate after insuring com­
pliance with standards of operation, is another factor com­
pelling the conclusion that we have “state action” here, 
Simkins, supra, at 968. See Boman v. Birmingham Transit

claim where the principal governmental involvement was decision 
by a regulatory body to do nothing about private activity (radio 
broadcasts on streetcars) it could have prohibited. The Hill-Burton 
Act and regulations demonstrate that the Flager Hospital is regu­
lated by government in as significant a degree as the transit com­
pany was in Poliak, and this ease has elements that the Poliak case 
did not, e.g., financial support and statutory authorization of racial 
segregation among others.

21 Steele v. Louisville N. B.B. Co., 323 U. S. 192 (Railway Labor 
Act) ; Syres v. Oil Workers In t’l Union, 223 F. 2d 739 (5th Cir. 
1955), rev’d per curiam, 350 U. S. 892 (Labor Management Rela­
tions Act) ; Bailway Employees Dept. v. Hanson, 351 U. S. 225, 232, 
n. 4. In Railroad Trainmen v. Howard, 343 U. S. 768, Negroes in 
a separate bargaining unit were entitled to enjoin a white union 
from striking to eliminate the Negroes’ jobs. See, Betts v. Easley, 
161 Kan. 459, 169 P. 2d 831 (holding certified labor union with 
responsibilities under federal law and receiving benefits therefrom 
subject to Constitution). Cf. Ming v. Horgan, 3 Race Rel. L. Rep. 
693, 699 (Cal. Super. Ct. 1958) (persons accepting federal mort­
gage guarantee bound by Fifth Amendment).



19

Co., 280 F. 2d 531, 535 (5th Cir. 1960), holding that because 
a bus company was performing a service for the public 
necessity and convenience, by having a franchise to operate 
on the public streets of Birmingham, “the acts of the bus 
company in requiring racially segregated seating were 
‘state acts.’ ” 22 Flagler Hospital performs services for the 
public at least as significant as those of a local bus com­
pany.

Fourth. 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.23 
If the hospitals 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 hos­
pitals cease to be “nonprofit,” the United States is author­
ized to recover the present value of the federal share of the 
approved project. These provisions operate to insure 
against misuse of federal funds in the manner of a re­
verter retained by government to insure particular use of 
property. This Court has found retention of such an in­
terest in property sold by a municijjality to private persons 
sufficient to invoke constitutional restraints. In Hampton 
v. City of Jacksonville, 304 F. 2d 320 (5th Cir. 1962), cert, 
denied sub nom. Ghioto v. Hampton, 371 U. S. 911, the City 
sold two municipal golf courses with the deeds providing 
that the City would regain title if the properties were used 
for other purposes. This was the only connection retained 
by the City. This Court found that “conceptually it is ex­
tremely difficult if not impossible to find any rational basis 
of distinguishing the power or degree of control, so far as 
relates to the State’s involvement between a longterm lease

22 See also, Baldwin v. Morgan, 287 F. 2d 750, 755 (5th Cir. 
1961) ; Betts v. Easley, 161 Kan. 459,169 P. 2d 831.

23 See supra, pp. 7, 8.



20

for a particular purpose with the right of cancellation . . . 
if that purpose is not carried out” (as in Burton v. Wilming­
ton Parking Authority, 365 U. S. 715), “and an absolute 
conveyance of property subject. . .  to the right of reversion 
if property does not continue to be used for the purpose 
prescribed” (304 F. 2d at 322). On this reasoning this Court 
declined to follow the Fourth Circuit’s decision in Eaton 
v. Board of Managers of the James Walker Memorial Hos­
pital, 261 F. 2d 521 (4th Cir. 1958), cert, denied 359 IT. S. 
984, saying that as Eaton was decided prior to Burton, its 
holding probably would not be followed. This prophecy 
proved correct when the Fourth Circuit, in subsequent liti­
gation, on the authority of Hampton and Simkins, dis­
approved of its first Eaton decision. Eaton v. Grubls, 329 
F. 2d 710 (4th Cir. 1964).24

Fifth. Under Hill-Burton the number and distribution of 
hospital beds in an area is decided by state and federal 
governments. See supra, pp. 9, 10. Once funds are granted 
bringing an area up to the standard of hospital beds con­
sidered adequate for the population, no further beds can 
be programmed. If Florida had chosen to build publicly 
owned hospitals in St. Augustine, the Flagler Hospital 
could have been denied all federal aid. On the other hand, 
the aid granted the hospital now prohibits the construction 
of duplicating city, county, or other nonprofit facilities with 
federal aid. Hospitals participating have, therefore, be­
come the chosen and exclusive instruments to carry out 
governmental objectives. “Just as the Court in the Parking 
Authority Case25 attached major significance to ‘the ob­
vious fact that the restaurant is operated as an integral 
part of a public building devoted to a public parking ser­

24 The Sixth Circuit has also followed Hampton. See Smith v. 
Holiday Inns, 336 F. 2d 630 (6th Cir. 1964).

25 Burton v. Wilmington Parking Authority, 365 U, S. 715, 724.



21

vice,’ . . .  we find it significant here that the defendant 
hospitals operate as integral parts of joint or intermeshing 
state and federal plans or programs designed to effect a 
proper allocation of . . . hospital resources.” Simkins, su­
pra, at 967. And “when a state function or responsibility is 
being exercised, it matters not for Fourteenth Amendment 
purposes that the . . . [institution actually chosen] would 
otherwise be private.” Id. at 968.26

Sixth. In addition to the interrelations of the hospital 
and government as discussed above, an additional factor 
(present also in the Sim,kins case) compels the conclusion 
that the discrimination practiced is within the purview of 
the Constitution. This discrimination was affirmatively 
sanctioned by a federal statute and federal regulations and 
by a state executive decision to permit segregation in the 
St. Augustine area (E. 7; see supra, pp. 10, 11) which en­
abled Flagler Hospital to avoid giving an assurance not 
to discriminate as a condition of receiving funds. Florida 
was permitted to authorize or require segregation as long 
as it programmed other hospital facilities for Negroes in 
the St. Augustine area. The record reveals that Florida 
programmed such segregation in the area and that the 
Surgeon General approved an exemption from the general 
nondiscrimination clause for Flagler (E. 7).

“It is settled that governmental sanction need not reach 
the level of compulsion to clothe what is otherwise private 
discrimination with ‘state action.’ ” Simkins, supra, at 968. 
The principle enunciated in Mr. Justice Stewart’s con­
curring opinion in Burton v. Wilmington Parking Author­
ity, 365 U. S. 715, 726-27, supports this finding. In Burton, 
Justice Stewart read the Delaware law as “authorizing

26 Flagler Hospital refers to itself as a “private” institution but 
in order to be eligible for Hill-Burton funds a hospital must be a 
nonprofit, “community” facility. 41 C. F. R. §53-7 (V).



22

discriminatory classification based exclusively on color” 
(365 U. S. at 727) and found this sufficient to invalidate 
the law and reverse a decision denying an injunction against 
a restaurateur who excluded Negroes. Three dissenters 
(Justices Frankfurter, Harlan and Whittaker) agreed that 
a statute authorizing a nongovernmental entity to discrim­
inate would “indubitably” (365 U. S. at 727) and “certainly” 
(id. at 730) offend the Fourteenth Amendment and open up 
an “easy route to decision” (id. at 728). But they found 
the meaning of the Delaware law uncertain. The majority 
opinion in Burton did not discuss the issue.27

When individuals effect racial discrimination at the 
behest of a State, they become subject to the limitations 
applicable to the State themselves. Flemming v. South 
Carolina Electric & Gas Co., 224 F. 2d 752, 753 (4th Cir. 
1955), appeal dismissed, 351 U. S. 901. A. railroad terminal 
company and a local bus company were enjoined from dis­
criminating in Baldwin v. Morgan, 287 F. 2d 750, 755 (5th 
Cir. 1961), and Boman v. Birmingham Transit Co., 280 F. 
2d 531, 535 (5th Cir. 1960), where their discriminatory

27 McCabe v. Atchison Topeka and S. F. B. Co., 235 U. S. 151,
162 (1914), is based upon the same theory, holding that a Negro 
“might properly complain that his constitutional privilege has been 
invaded” if common carriers “acting in the matter under the au­
thority of a state law” denied Negroes sleeping car, dining car and 
chair car facilities. The only defendants in the case were a group 
of rail carriers who were authorized to discriminate by an Oklahoma 
law. Relief was denied only on the ground that complainants had 
not actually sought to use the railroads or to otherwise show that 
equitable intervention was necessary to protect the rights declared 
in the opinion. Here, as in McCabe, defendants are relieved of 
obedience to a general requirement of nondiscrimination (emanat­
ing in McCabe from the common law duty of carriers, and here 
from the underlying nondiscrimination rule of 42 U. S. C. §291e(f) 
1958 ed.) by action of a State. In McCabe the state action was stat­
utory; here it is executive in the shape of the State’s program of 
separate facilities in the St. Augustine Area.



23

actions were taken under authority conferred by state and 
local laws.28

Flagler Hospital urges that the Simkins decision was 
wrongly decided because the Hospital accepted federal funds 
upon the assurance of federal and state officials that it 
could maintain certain racial policies. The court in Sim­
kins, however, gave an unanswerable reply to this conten­
tion when it held that:

The defendants, owners of publicly assisted facili­
ties can stand no better than the collective body of 
southern voters who approved school bond issues before 
the Brown decision or private entrepreneurs 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 historical practice of separation of 
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.

# # # # #
“We accord full weight to argument of the defen­

dants but it cannot prevail. Not only does the Consti­
tution 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.” (323 F. 2d at p. 970.)29

28 See Williams v. Hot Shoppes, 293 F. 2d 835, 845, 846 (D. C. 
Cir. 1961), where Judges Bazelon and Edgerton, in dissenting from 
the majority’s decision to abstain, urged that the action of persons 
required by law to enforce a segregation rule is state action within 
the reach of the Fourteenth Amendment.

29 See also Burton, supra, at 365 U. S. 726.



24

Racial discrimination by community hospitals is a matter 
of grave concern to Negro citizens. By financial contribu­
tion, and a complex pattern of controls, by authorizing the 
hospitals to do the work of government, and by affirmatively 
sanctioning racial discrimination, state and federal gov­
ernments have so involved themselves in the affairs of 
Hill-Burton hospitals as to compel the conclusion that such 
hospitals are forbidden to discriminate by the Constitution.

II.
Plaintiffs Have Standing to Obtain the Relief Granted 

by the Court Below.

Plaintiffs accept the proposition cited by appellants that:
On a motion for judgment on the pleadings the old 

rule obtains that the fact allegations of the answer 
are to be taken as true, but those of the complaint are 
taken as true only where and to the extent that they do 
not conflict with those of the answer. Bass v. Hoag- 
land, 172 F. 2d 205, 207 (5th Cir. 1949), cert, denied 
338 TJ. S. 816.

In paragraph IV of their complaint, plaintiffs alleged 
that they had “been subjected to racial segregation as 
patients in Flagler Hospital” (R. 2). The Hospital 
did not deny this allegation, but rather admitted that, 
“as such patients they were assigned rooms in the Negro 
unit of the Hospital” (R. 7).

Further, in paragraph VII, plaintiffs alleged that the 
Hospital “is pursuing a policy, practice, custom and usage 
of segregating Negro patients from white patients in treat­
ment areas solely on the basis of race” (R. 3). At first the 
Hospital appeared to deny this allegation, saying that, “It 
is untrue that the defendant Flagler Hospital pursues a



25

policy and practice of segregating Negro patients from 
white patients in treatment areas.” Immediately, however, 
the hospital indicated that it was not denying segregation 
but only using the term “treatment areas” in an unwar- 
rantedly restrictive sense,30 limiting it to emergency, de­
livery, operating, recovery, examining rooms, and labora­
tory, X-ray and physical therapy rooms:

It is true also that rooms and wards for Negro pa­
tients are maintained in a separate unit from the unit 
in which rooms and wards for white patients are main­
tained and that waiting rooms and public rest rooms 
are maintained for Negroes separate from the waiting 
rooms and public rooms maintained for white per­
sons (E. 8-9).

Taking the hospital’s answer as a whole, it has admitted:
(1) that plaintiffs are Negroes and have been patients at 

Flagler Hospital; (2) that as Negro patients they were 
assigned rooms in the Negro unit of the hospital; and (3) 
that Negro patients as a class are segregated into a unit 
separate from that in which white patients are placed.

Therefore, since the answer demonstrates that Negroes 
as a class are subjected to segregation, and that plaintiffs 
are members of the class, the district judge was clearly 
justified in finding that the suit was properly brought as a 
class action.

The case is closely analogous to Potts v. Flax, 313 F. 2d 
284 (5th Cir. 1963). There also the defendant entered a 
denial specifically directed to plaintiffs’ allegation that the

30 Neither in its answer nor in its brief does the Hospital attempt 
to give any reason for its contention that the term does not include 
hospital rooms and wards. The phrase has no technical legal mean­
ing, and in ordinary usage it means simply any and all places 
where patients are treated. Certainly patients receive treatment 
in wards and rooms as well as in the areas listed by appellants.



26

plaintiffs represented a class. However, the court looked 
to the rest of the answer and the complaint in order to 
determine the purpose of the suit. It was said:

The peculiar rights of specific individuals were not 
in controversy. It was directed at the system-wide pol­
icy of racial segregation. It sought obliteration of that 
policy of system-wide racial discrimination. In various 
ways this was sought through suitable declaratory 
orders and injunctions against any rule, regulation, 
custom, or practice having any such consequences. The 
case, therefore, had those elements which are some­
times suggested as a distinction between those which 
are, or are not, appropriate as a class suit brought to 
vindicate constitutionally guaranteed civil rights. 313 
F. 2d at 288-89.

Similarly, the present suit has as its purpose not merely 
the assigning of individual plaintiffs to particular rooms or 
wards, but rather the ending of all practices that further 
the policy of hospital-wide racial discrimination against the 
class that plaintiffs admittedly represent, i.e., Negro pa­
tients. To paraphrase the court in Potts v. Flax, a hospital 
segregation suit “presents more than a claim of invidious 
discrimination to individuals by reason of a universal pol­
icy of segregation. It involves a discrimination against a 
class as a class, and this is assuredly appropriate for class 
relief.” 313 F. 2d at 289 n. 5.31 See also, Bailey v. Patter­
son, 323 F. 2d 201 (5th Cir. 1963).

31 The court in Potts further pointed out that class relief was 
virtually required because of the nature of the suit. There, as here, 
what was being attacked was the unconstitutional practice of racial 
discrimination. Once appellants admitted that segregated wards 
were maintained, the court below had to order that they be dis­
continued. Thus, even if it were technically error to treat the case 
as a class suit and enter such a decree, the error v7as harmless since 
the decree would have been the same if confined to individual plain­
tiffs. 313 F. 2d 289-90.



27

The hospital a ŝo attacks the propriety of the class action 
on the 'ground that plaintiffs had no standing to vindicate 
the rights of Negro student nurses to integrated facilities. 
Appellants, however, have misconstrued the nature and 
basis of appellees’ claim. These patients seek desegrega­
tion of all aspects of Flagler Hospital in their own right, 
and not as representatives of the nurses.32

Thus, the relief they seek is to be treated in the Hospital 
in an environment free from discrimination and distinc­
tions founded on race. ■ Once racial segregation has been 
found, the courts may render decrees designed to eliminate 
all aspects of such practices.33 The Fourth Circuit made 
this clear in Hockley v. Board of Trustees of Orangeburg 
Regional Hospital, 310 F. 2d 141 (4th Cir. 1962). There, 
Negro patients had been subjected to segregation in a hos­
pital waiting room. The court held that it was error for the 
district court to strike counts from the complaint alleging 
segregation in wurds since the plaintiffs were entitled to 
have all aspects of racial discrimination adjudicated. Cf. 
also Board of Public Instruction of Duval County, Fla. v. 
Braxton, 326 F. 2d 616 (5th Cir. 1964).

32 It is clear that the district judge regarded the matter in this 
light, since his order did not mention the student nurses, but was 
solely in terms of enforcing the rights of Negro patients (R. 16).

33 Since plaintiffs are seeking the end of all discriminatory prac­
tices in their own right, and in the name of other Negro patients, 
a class which they clearly represent, the cases of Bailey v. Patterson, 
369 U. S. 31 (1962) and Thaxton v. Vaughan, 321 F. 2d 474 (4th 
Cir. 1963), cited by appellants, are not in point.



28

III.
The Maintenance of Racially Segregated Wards Is in 

and of Itself Such a Denial of Plaintiffs’ Constitutional 
Rights as to Require Relief, and the Relief Granted 
Was Proper.

A.

The Hospital in its brief attacks the enjoining of the 
segregation of white and Negro patients without giving 
it an opportunity to prove that this policy could be justi­
fied.34 The simple answer to this argument is that a long 
line of decisions before and after Brown v. Board of Edu­
cation, 347 U. S. 483 (1954), have made it clear that state- 
supported segregation of the races cannot be justified.35

34 Appellants again raise and seem to attach some significance to 
their rather tortured definition of “treatment areas.” As shown 
supra, however, it is clear that segregation was pleaded and ad­
mitted. Likewise, the Hospital attempts in its brief to construct 
some mystery around the meaning of the word “unit” and complain 
that no proof was presented as to what is meant by it.

However, it is obvious from the pleadings that in Flagler Hospital 
Negroes are placed in rooms and wards separate from those in which 
white patients are found and that similarly, separate rest rooms and 
waiting rooms are maintained. This means, quite simply, that 
whites and Negroes are segregated, and this fact is sufficient to 
entitle plaintiffs to relief.

35 E.g., Goss v. Board of Education, 373 U. S. 683 (pupil transfer 
plan) ; Watson v. City of Memphis, 373 U. S. 526 (public parks and 
playgrounds) ; Johnson v. Virginia, 373 U. S. 61 (courtrooms) ; 
Burton v. Wilmington Parking Authority, 365 U. S. 715 (restau­
rants in public buildings); Gayle v. Browder, 352 U. S. 903 (seat­
ing on buses) ; Bolling v. Sharpe, 347 U. S. 497 (federally sup­
ported schools) ; Henderson v. United States, 339 U. S. 816 (rail­
road dining cars).

The language in McLaughlin v. Florida, -----  U. S. ----- , 13
L. Ed. 2d 222, cited by the Hospital, does not support its conten­
tion that racial segregation might be justified. The Court there only 
suggested that some kinds of classifications in state criminal laws 
might be supportable, but emphasized strongly that all racial clas-



29

That such is the case in hospital facilities was decided 
by the Fourth Circuit in Simkins v. Moses II. Cone Me­
morial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied 
376 U. S. 938. In that ease, the Court struck down 42 U. S. C. 
§291e(f) 1958 ed. and 42 C. F. E-. §53.112, which permitted 
segregation in hospital facilities such as the appellants here 
seek to defend. Certainly the Fourth Circuit’s opinion 
means that such segregation is ipso facto unconstitutional, 
and cannot be supported. Thus, on remand, the district 
court issued the order quoted by the hospital in its brief and 
appendix enjoining the defendant hospitals from “condi­
tioning or abridging . . . use of the facilities . . .  on the 
basis of race.” During the hearing on the issuance of the 
order Judge Stanley made clear that the appellate court’s 
opinion required the desegregation of wards as a matter 
of law when he said :

I think now based on the judgment of the Court of 
Appeals that the order should carry into effect the 
idea, as we said for the sake of brevity, both hospitals 
have to be operated completely on a color-blind basis.

I just say there can be no discrimination or segre­
gation because of race or color.36

Similarly, Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964), 
made it clear that the Fourteenth Amendment constituted

sifications were suspect. And see the concurring opinion of Mr. 
Justice Stewart,----- U. S .------ , 13 L. Ed. 2d at 232.

One of the few recent cases in which any sort of racially-oriented 
state action was upheld, Virginia v. Hamm, 230 F. Supp. 156
(E. D. Va. 1964), a f d ----- IT. S. — , 13 L. Ed. 2d 91 (1964),
had nothing to do with segregation, but merely permitted the state 
to ask for the race of persons in compiling divorce statistics. At 
the same time the court struck down the asking of race on voting 
and property tax assessment records.

36 Hearing of April 16, 1964, Simians v. Moses H. Cone Memorial 
Hospital (M. D. N. C. C. A. C-57-G-62), Transcript p. 39.



30

an absolute prohibition on discriminatory practices in hos­
pitals. See also, Rachley v. Board of Trustees of Orange­
burg Regional Hospital, 310 F. 2d 141 (4th Cir. 1962).

Title VI of the Civil Eights Act of 1964 supports the 
position that the Fourteenth and Fifth Amendments impose 
an absolute prohibition on racial segregation in hospitals 
receiving federal and state aid. Section 601 states:

No person in the United States shall, on the ground 
of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be sub­
jected to discrimination under any program or activity 
receiving Federal financial assistance.

In the regulations promulgated by the Department of 
Health, Education, and Welfare to enforce Title VI it is 
provided that:

In the case of hospital construction grants the as­
surance [of compliance with Title VI] will apply to 
patients, to interns, residents, student nurses, and other 
trainees, . . . and will apply to the entire hospital for 
which, or for a part of which the grant is made, and 
to facilities operated in connection therewith. 45 
C. F. R. 80.5 (e) (as amended 29 Fed. Register 16301, 
Dec. 4, 1964).

The Department’s official explanation of its form for as­
surance of compliance states that this means that no dis­
tinction on the ground of race or color shall be made in 
making available the use of any room, dormitory, ward, or 
other space in the facility.37 The legislative history of 
Title VI also makes it clear that Congress believed that

37 See Question Number Four of the Explanation of H. E. W. 
Form No. 441, reproduced in Appendix, infra p. 41.



31

segregation of Negro and white patients in federally as­
sisted hospitals violated the constitution.38

The Hospital’s reliance on the decision in Thaxton v. 
Vaughan, 209 F. Snpp. 106 (W. D. Va. 1962), is misplaced. 
The Fourth Circuit affirmed the decision solely on the 
grounds that the particular plaintiffs did not have standing 
to challenge the practices of a nursing home of which none 
were patients or inmates. Indeed, the court took great 
pains to say:

Our affirmance of the court’s decision is not to be 
construed as concurring in the court’s opinion that 
the medical reasons adduced by the defendants’ doctor, 
who was in charge of the nursing home, for de facto 
segregation of his aged and senile patients was suffi­
cient legal reason for denying any of those patients 
their constitutional right to unsegregated treatment. 
321 F . 2d 474, 476 (4th Cir. 1963).

Another flaw in the hospital’s argument that they were 
not given a chance to show that the segregation herein 
complained was justifiable on the grounds they now urge, 
is that the issue was not raised by the pleadings. It is

38 See, e.g., the remarks of Rep. Ryan of New York (“The denial 
of the best available medical care because of a patient’s color is in­
consistent with the most basic democratic principles. By passing 
Title VI Congress will make clear its intention that this practice 
[segregation within hospitals] cease.”) 110 Cong. Rec. 2398, daily 
ed. February 7. 1964, and of Sen. Humphrey, the Floor Manager 
of the bill ([‘Title VI would override the ‘separate but equal’ provi­
sions now in The Hill-Burton Act. The policy of the Title might be 
enforced here by requiring that hospitals receiving Federal construc­
tion grants under the Hill-Burton Act agree not to exclude or seg­
regate patients, or otherwise discriminate in their treatment of 
patients, because of race, color or national origin. . . . Any such 
discrimination is unconstitutional under the decision of the U. S. 
Court of Appeals for the Fourth Circuit. Simkins v. Moses H. Cone 
Memorial Hospital, 323 F. 2d 959 (C. A. 4, 1963) certiorari denied, 
March 2, 1964.”) 110 Cong. Rec. 6325, daily ed. March 30, 1964. j



32

clear that even in those limited number of cases where 
some sort of racial distinctions may be supportable, the 
burden to so plead and prove is on the party seeking to 
make the justification. Cf., McLaughlin v. Florida, ■—-— 
U. S. ----- , 13 L. Ed. 2d 222, 230-31.

In their answer, however, appellants did not attempt to 
allege that segregation was proper for medical, health, or 
any other reasons. Their defense was based solely on the 
ground that the hospital was a private corporation and 
that therefore the execution of a policy of racial segrega­
tion could not constitute a violation of the constitutional 
rights of plaintiffs or their class (ft. 9). Thus, the district 
court had the power to decide the case according to its 
resolution of the issues presented to it.

B.

In its argument IV the Hospital claims that the only 
segregated facilities that had been admitted were those of 
Negro student nurses. However, in their answer they 
clearly admitted precisely the practices plaintiffs sought 
to have enjoined, i.e., the maintenance of separate rooms 
and wards for Negro patients and separate waiting rooms 
and public restrooms (E. 7, 8, 9).88

It was clearly on the basis of this admission that the 
district court found that there were racially segregated 
rooms, wards, and restrooms (E. 13) and ordered the Hos­
pital not to continue:

39 It is hard, in view of the clear language of their own answer, 
to understand appellants’ contention in their brief (p. 27) that they 
do not now and never did have any policy or practice of operating 
Flagler Hospital on the basis of racial discrimination, unless it 
stems from their definition of “treatment areas.” Again, the argu­
ment that they did not admit alleged discriminatory practices be­
cause of that definition is unsupportable.



. . .  to enforce the policy, practice, custom and usage 
of operating the Flagler Hospital on the basis of racial 
segregation (B. 14).

Hence, the order, with the one possible exception dis­
cussed below, does no more than grant the relief dictated 
by the answer. The defendants admitted that they operated 
segregated rooms and wards, and that they therefore did 
condition the use of the facilities on the basis of race, and 
failed to make all of the services, facilities, accommoda­
tions, etc., available to Negroes on a non-segregated basis. 
These admitted practices the court could enjoin.

The one part of the injunction that was not expressly sup­
ported by the pleadings was that enjoining the Hospital 
from denying plaintiffs’ admission to the Hospital. Con- 
cededly, Negroes have been admitted to the Hospital in the 
past. However, plaintiffs contend that the inclusion of the 
phrase is, at worst, harmless error, and is appropri­
ate to guarantee fully the relief to which plaintiffs are 
entitled. Plaintiffs seek to be treated by the Hospital on 
a non-segregated basis. In view of the past discriminatory 
practices of the Hospital it is possible that the same poli­
cies would be carried out by barring or conditioning the 
admission of Negroes. Thus, it was well within the discre­
tion of the court to render a decree broad enough to en­
sure its effectiveness.

The injunction here was not overbroad or too general in 
its terms. Specific instances of segregation were alleged 
and admitted, and the district court based both its findings 
and order on them. The commands not to enforce the poli­
cies and practices of segregation, or denying Negro pa­
tients admission to or conditioning the use of the Hospital 
on the basis of race are clear and appropriate. In this 
Circuit similarly worded orders have been entered in nu­



34

merous cases involving racial discrimination. See, e.g., 
United States v. City of Jackson, 318 F. 2d 1, 4 (5th Cir. 
1963); United States v. City of Shreveport, 210 F. Supp. 
708 (W. D. La. 1962), aff’d, 316 F. 2d 928 (5th Cir. 1963); 
ef., Stell v. Savanndh-Chatham County Board of Educa­
tion, 318 F. 2d 425 (5th Cir. 1963).

Nasif v. United States, 165 F. 2d 119 (5th Cir. 1947), 
cited by the Hospital, involved a general injunction against 
violating a criminal statute. As the court there made clear, 
the reason that such an injunction is invalid is that it 
could result in punishment for the commission of a crime 
without providing the full safeguards of a regular criminal 
proceeding. Russell C. House Transfer and Storage Co. v. 
United States, 189 F. 2d 349 (5th Cir. 1951), is also not in 
point. There, this court struck down a decree enjoining 
the defendant in general terms not to violate the Interstate 
Commerce Act, without specifying with clarity the par­
ticular conduct proscribed. Here, no criminal or other 
statute is involved, and the particular practices prohibited 
are clear. There is no reason to believe that the defen­
dant hospital will have any difficulty complying fully with 
its mandate.



35

CONCLUSION

For the foregoing reasons the judgm ent below should 
be affirmed.

Respectfully submitted,

J ack Greenberg 
M ich a el  M eltsner  
Charles S t e ph e n  R alston 
L eroy D . Clark

10 Columbus Circle 
New York, New York

E arl M. J ohnson

625 West Union Street 
Jacksonville, Florida

Attorneys for Appellees



36

CERTIFICATE OF SERVICE

I hereby certify that a copy of Brief for Appellees was 
furnished by United States mail, air mail, postage prepaid 
to Chester Bedell, C. Harris Dittmar, and Robert P. Smith, 
Jr., 1520 Barnett National Bank Building, Jacksonville, 
Florida 32202, attorneys for appellants, this 11th day of 
February, 1965.

Attorney for Appellees



A P P E N D I X



APPENDIX

Federal, and Florida Statutes and Regulations 
Governing the Receipt of Hospital Funds

H il l -B urton A ct and R egulations 

42 U. S. C. §291e(f) [Repealed]
291e General regulations.—Within six months after the 

enactment of this title, the Surgeon General, with the ap­
proval of the Federal Hospital Council and the Secretary 
of Health, Education, and Welfare, shall by general regu­
lation prescribe—

# # # # #

(f) The State plan shall provide for adequate hospital 
facilities for the people residing in a state, without dis­
crimination on account of race, creed, or color, and shall 
provide for adequate hospital facilities for persons unable 
to pay therefor. Such regulation may require that before 
approval of any application for a hospital or addition to 
a hospital is recommended by a State agency, assurance 
shall be received by the State from the applicant that (1) 
such hospital or addition to a hospital will be made avail­
able to all persons residing in the territorial area of the 
applicant, without discrimination on account of race, creed 
or color, but an exception shall be made in cases where 
separate hospital facilities are provided for separate popu­
lation groups, if the plan makes equitable provision on the 
basis of need for facilities and services of like quality for 
each such group; and (2) there will be made available in 
each such hospital or addition to a hospital a reasonable 
volume of hospital services to persons unable to pay there­
for, but an exception shall be made if such a requirement 
is not feasible from a financial standpoint.



38

Federal and Florida Statutes and Regulations 

42 C. F. E. §53-112.

§53.112 Nondiscrimination. Before a construction appli­
cation is recommended by a State agency for approval, the 
State agency shall obtain assurance from the applicant that 
the facilities to be built with aid under the Act will be made 
available without discrimination on account of race, creed, 
or color, to all persons residing in the area to be served by 
that facility. However, in any area where separate hos­
pital, diagnostic or treatment center, rehabilitation or nurs­
ing home facilities, are provided for separate population 
groups, the State agency may waive the requirement of 
assurance from the construction applicant if (a) it finds 
that the plan otherwise makes equitable provision on the 
basis of need for facilities and services of like quality for 
each such population group in the area and (b) such find­
ing is subsequently approved by the Surgeon General. 
Facilities provided under the Federal Act will be considered 
as making equitable provision for separate population 
groups when the facilities to be built for the group less 
well provided for heretofore are equal to the proportion 
of such group in the total population of the area, except 
that the State plan shall not program facilities for a sepa­
rate population group for construction beyond the level of 
adequacy for such group.

Civil Eights Act of 1964, 78 Stat. 241, Title VI—
N ondiscrimination  in  F ederally 

A ssisted P rograms

Sec. 601. No person in the United States shall, on the 
ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving 
Federal financial assistance.



39

ASSURANCE OF COMPLIANCE WITH THE DEPARTMENT OF 
HEALTH, EDUCATION, AND WELFARE REGULATION UNDER 

TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

Federal and Florida Statutes and Regulations

(Name of A p p lican t)
(hereinafter called the "Applicant” )

HEREBY AGREES THAT it will comply w i t h  title VI of the Civil Rights Act of 1964 
(P.L. 88-352) and all requirements imposed by or pursuant to the Regulation of the Department 
of Health, Education, and Welfare (45 CFR Part 80) issued pursuant to that title, to the end that, 
in accordance with title VI of that Act and the Regulation, no person in the United States shall, 
on the ground of race, color, or national origin, be excluded from participation in, be denied the 
benefits of, or be otherwise subjected to discrimination under any program or activity for which 
the Applicant receives Federal financial assistance from the Department; and HEREBY GIVES 
ASSURANCE THAT it will immediately take any measures necessary to effectuate this agree- 
ment.

If any real property or structure thereon is provided or improved with the aid of Federal financial 
assistance extended to the Applicant by the Department, this assurance shall obligate the 
Applicant, or in the case of any transfer of such property, any transferee, for the period during 
which the real property or structure is used for a purpose for which the Federal financial a s s i s t ­
ance is extended or for another purpose involving the provision of similar services or benefits. 
If any personal property is so provided, this assurance shall obligate the Applicant for the 
period during which it retains ownership or possession of the property. In all other cases,  this 
assurance shall obligate the Applicant for the period during which the Federal financial a s s i s t ­
ance is extended to it by the Department.

THIS ASSURANCE is given in consideration of and for the purpose of obtaining any and all 
Federal grants, loans, contracts, property, discounts or other Federal financial assistance 
extended after the date hereof to the Applicant by the Department, including installment pay­
ments after such date on account of applications for Federal financial assistance which were 
approved before such date. The Applicant recognizes and agrees that such Federal financial 
assistance will be extended in reliance on the representations and agreements made in this 
assurance, and that the United States shall have the right to seek judicial enforcement of this 
assurance. This assurance is binding on the Applicant, its  successors, transferees, and assign­
ees, and the person or persons whose signatures appear below are authorized to sign this assur­
ance on behalf of the Applicant.

Dated
(A p p lican t)

B y____________ _______________________
(P re s id e n t ,  C hairm an of B oard , or com parable  

au th o r ize d  o ffic ia l)

(A p p lic a n t’s  m ailing  a d d re s s )

HEW -441
(12 -64 )

GPO 8 8 5 -  128



40

Federal and Florida Statutes and Regulations

Explanation Of

HEW FORM NO. 441, ASSURANCE OF COMPLIANCE WITH THE 
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE REG­
ULATION UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
 ̂Section 80.4 of the Department of Health, Education, and Welfare’s Regulation effectuating 

Title VI of the Civil Rights Act of 1964 requires that every application to the Department for Federal 
financial assistance shall contain or be accompanied by afi’Assurance that the program or facility to 
be assisted will be conducted or operated in compliance with Title VI of the Civil Rights Act and with 
all requirements imposed by or pursuant to the Department’s Regulation.

Section 80.4 further provides that “the form of the foregoing Assurance and the extent to which 
like Assurances will be required of subgrantees, contractors, transferees, successors in interest and 
other participants,” shall be specified by the responsible Department official. Under this authority, 
HEW Form No. 441 has been specified as the form of Assurance which shall apply to all applications 
for Federal financial assistance (except for continuing state programs which must meet the require­
ments of Section 80.4(b) and school districts availing themselves of Section 80.4(c) of the Regulation) 
submitted to the Department after January 3, 1965; also the circumstances have been specified under 
which an Applicant shall obtain comparable written Assurances of compliance from its subgrantees, 
contractors, and transferees. (See answers to Questions 11 and 12 below in this regard.)

HEW Form No. 441 constitutes a legally enforceable agreement to comply with Title VI of 
the Civil Rights Act of 1964, and with all requirements imposed by or pursuant to the Regulation 
of the Department of Health, Education, and Welfare issued thereunder. Applicants are urged to 
read the Department’s Regulation before executing the Assurance.

The following explanation of the requirements of the Department’s Regulation and the examples 
of the kinds of discriminatory practices prohibited by them are for the guidance of the Applicants.
1. By executing the Assurance (HEW Form No. 441), what does an Applicant agree to do?

A. The Applicant agrees to make no distinction on the ground of race, color, or national origin 
in providing to individuals any service, financial aid, or other benefit under any program receiving 
Federal financial assistance extended to the Applicant by the Department.
2. What is meant by “distinction on the ground of race, color, or national origin”?

A. “Distinction on the ground of race, color, or national origin” includes (1) any type of segre­
gation, separate or different treatment, or other discrimination on that ground; (2) the imposition of 
any admission, enrollment quota, eligibility, or other requirement or condition which individuals 
must meet in order to be provided any service, financial aid, or other benefit under a program or to 
be afforded an opportunity to participate in a program, if the race, color, or national origin of indi­
viduals is considered in deteimining whether they meet any such requirement or condition; (3) the 
use of membership in a group as a basis for the selection of individuals for any purpose, if in selecting 
members of the group there is discrimination on the ground of race, color, or national origin; and (4) 
the assignment of personnel to provide services, or the assignment of times or places for the provision 
of services, on the basis of the race, color, or national origin of the individuals to be served. It does not, 
however, include distinctions on the ground of race, color, or national origin determined by the 
responsible Department official to be necessary to the conduct of research or experimental programs 
having as their primary objective the discovery of new knowledge concerning special characteristics 
of particular racial or other ethnic groups.

758-574  0 — 64 1



41

Federal and Florida Statutes and Regulations

3. What is meant by “service, financial aid, or other benefit”?
A. “Service, financial aid, or other benefit” under a program receiving Federal financial assistance 

includes any education or training, any evaluation, guidance, counseling, or placement service, any 
health, welfare, rehabilitation, housing, or recreational service, any referral of individuals for any of the 
foregoing services, any scholarship, fellowship or traineeship stipend or allowance, and any loan or 
other financial assistance or benefit (whether in cash or in kind), which is made available to individuals 
(1) with the aid of Federal financial assistance, or (2) with the aid of the Applicant’s or of other non- 
Federal funds required to be made available for the program as a condition to the receipt of Federal 
financial assistance, or (3) in or through a facility provided with the aid of Federal financial assistance 
or the non-Federal matching funds referred to in (2).
4. What requirements are placed on the use of facilities?

A. The Applicant agrees to make no distinction on the ground of race, color, or national origin in 
making available to individuals the use of any land, building, equipment, or other facility leased, 
acquired, constructed, improved, or equipped with the aid of Federal financial assistance extended to 
the Applicant by the Department, including—

(a) the use of any room, dormitory, ward, or other space in the facility;
(b) the use of any equipment in the facility;
(c) the use of any office, waiting room, restroom, eating, recreational, concession, or other 

accommodation or convenience provided in the facility;
{d) the use of any facility not provided with the aid of Federal financial assistance if the avail­

ability of such facility is required as a condition to the receipt of Federal financial assistance for the 
Federally-assisted facility.

5. What requirements are placed on the opportunities to participate in a program receiving Federal assistance?
A. The Applicant agrees to make no distinction on the ground of race, color, or national origin 

in affording opportunities to individuals to participate (other than as employees) in any program 
receiving Federal financial assistance extended by the Department to the Applicant, including oppor­
tunities to participate—

(a) as providers of any service, financial aid, or other benefit to individuals under the program 
(e.g., as physicians, surgeons, dentists, or other professional practitioners seeking the privilege of 
practicing in a Federally-aided hospital or other facility),

(b) as conferees, observers, consultants, or advisers, or as members of advisory or planning- 
groups, or

(c) as volunteers (e.g., as voluntary workers, or as patients or other subjects of study or-experi­
mentation in research, survey, demonstration, or like programs).

6. Does that mean that an Applicant who signs the Department’s Assurance may nevertheless make distinctions
among his employees on the basis of race, color, or national origin?

A. Title VI of the Civil Rights Act does not concern itself with employment practices except where 
a primary objective of the Federal financial assistance is to provide employment'. Thus, where a basic 
objective of the program is to provide employment, the Applicant’s employment practices are subject 
to the Department’s Regulation. However, even where this is not the case an Applicant may be pre­
cluded from engaging in any discriminatory employment practices under the provisions of Title VII 
of the Civil Rights Act, Executive Orders 10925 and 11114, and the Merit System Regulations.
7. When an Applicant’s employment practices are covered by the Department’s Regulation, what requirements must

be met?
A. The Applicant agrees to make no distinction on the ground of race, color, or national origin 

in its employment practices (including recruitment or recruitment advertising, hiring, layoff or ter­
mination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of 
facilities) with respect to individuals seeking employment or employed under any program receiving 
Federal financial assistance extended to the Applicant by the Department, in those programs where a 
primary objective of the Federal financial assistance is to provide employment to such individuals. 
This includes programs under which the employment is provided—

(a) as a means of extending financial assistance to students or to needy persons,
(b) to students, fellows, interns, residents, or others in training for related employment 

(including research associates or assistants in training for research work), or
(c) to reduce unemployment or to provide remunerative activity to individuals who because 

of severe handicaps cannot be readily absorbed in the competitive labor market.
2



42

Federal and Florida Statutes and Regulations

8. What effect will the Regulation have on a college or universitys admission practices or other practices related to the
treatment of students?

A. An institution of higher education which applies for any Federal financial assistance of any kind 
must agree that it will make no distinction on the ground of race, color, or national origin in the 
admission practices or any other-practices of the institution relating to the treatment of students.

(a) “Student” includes any undergraduate, graduate, professional, or postgraduate student, 
fellow, intern, student, or other trainee receiving education or training from the institution.

(b) “Admission practices” include recruiting and promotional activities, application require­
ments, eligibility conditions, qualifications, preferences, or quotas used in selecting individuals for 
admission to the institution, or any program of the institution, as students.

(c) “ Other practices relating to the treatment of students” include the affording to students 
of opportunities to participate in any educational, research, cultural, athletic, recreational, social, 
or other program or activity; the performance evaluation, discipline, counseling of students; 
making available to students any housing, eating, health, or recreational service; affording work 
opportunities, or scholarship, loan or other financial assistance to students; and making available 
for the use of students any building, room, space, materials, equipment, or other facility or property.

9. Does the Assurance of nondiscrimination apply to the entire operation of an institution?
A. Insofar as the Assurance given by the Applicant relates to the admission or other treatment 

of individuals as students, patients, or clients of an institution of higher education, a school, hospital, 
nursing home, center, or other institution owned or operated by the Applicant, or to the opportunity 
to participate in the provision of services, financial aid, or other benefits to such individuals, the As­
surance applies to the entire institution. In the case of a public school system the Assurance would 
be applicable to all of the elementary or secondary schools operated by the Applicant.
10. What about a university which operates several campuses?

A. Section 80.4(d)(2) of the Regulation provides for a more limited Assurance only where an 
institution can demonstrate that the practices in part of its operation in no way affect its practice in 
the program for which it seeks Federal funds. This would be a rare case.
11. I f  an Applicant intends to make use of other individuals to help carry out the Federally-assisted program, does

the requirement not to discriminate apply to such a subgrantee or contractor?
A. It does. The Applicant must require any individual, organization, or other entity which it 

utilizes, to which it subgrants, or with which it contracts or otherwise arranges to provide services, 
financial aid, or other benefits under, or to assist it in the conduct of, any program receiving Federal 
financial assistance extended to the Applicant by the Department, or with which it contracts or other­
wise arranges for the use of any facility provided with the aid of Federal financial assistance for a 
purpose for which the Federal financial assistance was extended, to comply fully with Title VI of the 
Civil Rights Act of 1964 and the Regulation of the Department of Health, Education, and Welfare 
issued thereunder.
12. Must this Assurance of nondiscrimination by the subgrantee, etc., be in writing?

A. In the case (1) of any contractual or other arrangement with another such individual or entity 
which will continue for an indefinite period or for a period of more than three months, (2) of any sub­
grant, or (3) of any conveyance, lease, or other transfer of any real property or structures thereon 
provided with the aid of Federal financial assistance extended to the Applicant by the Department, the 
Applicant shall obtain from such other person, subgrantee, or transferee, an agreement, in writing, 
enforceable by the Applicant and by the United States, that such other individual or entity, sub­
grantee, or transferee will carry out its functions under such subgrant, or contractual or other arrange­
ment, or will use the transferred property, as the case may be, in accordance with Title VI of the 
Act and the Regulation will otherwise comply herewith.
13. What obligations does the Applicant have to inform beneficiaries, participants, and others of the provisions of

the Regulation?
A. The Applicant must make available to beneficiaries, participants, and other interested persons 

information regarding the provisions of the Regulation and protections against discrimination provided 
under Title VI of the Civil Rights Act. The Department will issue shortly more detailed instructions 
on carrying out this phase of the Regulation.

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43

t  edercd and, Florida Statutes and Regulations

14. What obligations does the Applicant have to keep records and to make them available to the Department?
A. From time to time, App'icants may be required to submit reports to the Department, and the 

Regulation provides that the facilities of the Applicant and all records, books, accounts, and other 
sources of information pertinent to the Applicant’s compliance with the Regulation be made available 
for inspection during normal business hours on request of an officer or employee of the Department 
specifically authorized to make such inspections. More detailed instructions in this regard will also 
be forthcoming from the Department in the near future.
15. Must separate Assurance forms be filed with each application?

A. As a general rule once a valid Assurance is given it will apply to any further application as long 
as there is no indication of a failure to comply.

4
U.S. GOVERNMENT PRINTING OFFICE: 1964 O— 758-574



Federal and Florida Statutes and Regulations

F lorida S tatutes A nnotated 
T itle  27: P ublic H ealth

380.01 Survey of state hospital facilities; development 
commission

(1) The Florida development commission is hereby des­
ignated as the sole agency of the state to carry out the 
purposes of the federal hospital survey and construction 
act as amended.

(2) (a) The governor is authorized to appoint a state 
advisory council which shall consist of seven members who 
are residents of Florida. Such council shall include repre­
sentatives of nongovernment organizations or groups, and 
of state agencies, concerned with the operation, construc­
tion, or utilization of hospitals, including representatives 
of the consumers of hospital services selected from among 
persons familiar with the need for such services in urban 
or rural areas, to consult with the Florida development 
commission in carrying out the purposes of the federal 
hospital survey and construction act with amendments.

(b) The members of the advisory council shall be ap­
pointed for a term of four years or until their successors 
are appointed and qualified, except that the first appoint­
ments made after passage of this law shall be for terms 
as follows: two members shall be appointed for a term of 
one year; two members shall be appointed for a term of 
two years; two members shall be appointed for a term 
of three years, and one member shall be appointed for a 
term of four years.

(3) The governor is authorized to provide for carrying 
out such purposes in accordance with the standards pre­
scribed by the surgeon general.



45

395.02 Purpose
* The purpose of this chapter is to provide for the develop­
ment, establishment and enforcement of standards:

(1) For the care and treatment of individuals in hos­
pitals and,

(2) For the construction, maintenance and operation of 
hospitals, which, in the light of advancing knowledge, will 
promote safe and adequate treatment of such individuals 
in hospitals.

395.03 Licensure
After December 31, 1947, no person or governmental 

unit acting severally or jointly with any other person or 
governmental unit shall establish, conduct or maintain a 
hospital in this state without a license under this law.

395.04 Application for license; disposition of fees; 
expenses

(1) An application for a license shall be made to the 
licensing agency upon forms provided by it and shall con­
tain such information as the licensing agency reasonably 
requires, which may include affirmative evidence of ability 
to comply with such reasonable standards, rules and regu­
lations as are lawfully prescribed hereunder. Each appli­
cation for license shall be accompanied by a license fee of 
fifteen dollars, payable to the state board of health, to be 
deposited with the state treasurer into the general revenue 
fund.

(2) The expenses of the state board of health and the 
advisory hospital council incurred in carrying out the pro­
visions of this chapter shall be paid from moneys appro-

Federal and Florida Statutes and Regulations



46

priated for that purpose. The state board of health shall 
include a sufficient amount in its legislative budget request 
to properly carry out the provisions of this chapter. As 
amended Laws 1961, c. 61-33, Sec. 1, effective June 30, 1961.

395.05 Issuance and renewal of license
Upon receipt of an application for license and the license 

fee, the licensing agency shall issue a license if the appli­
cant and hospital facilities meet the requirements estab­
lished under this law. A license, unless sooner suspended 
or revoked, shall be renewable annually upon payment of 
a fee of ten dollars, payable and expendable as set out in 
§ 395.04, and upon filing by the licensee, and approval by 
the licensing agency, of an annual report upon such uni­
form dates and containing such information in such form 
as the licensing agency prescribes by regulations. Each 
license shall be issued only for the premises and persons 
or governmental units named in the application and shall 
not be transferable or assignable except with the written 
approval of the licensing agency. Licenses shall be posted 
in a conspicuous place on the licensed premises.

395.06 Denial or revocation of license; hearings and 
review

The licensing agency after notice and opportunity for 
hearing to the applicant or licensee is authorized to deny, 
suspend or revoke a license in any case in which it finds 
that there has been a substantial failure to comply with 
the requirements established under this law.

Such notice shall be effected by registered mail, or by 
personal service setting forth the particular reasons for 
the proposed action and fixing a date not less than thirty 
days from the date of such mailing or service, at which

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47

the applicant or licensee shall be given an opportunity for 
a prompt and fair hearing. On the basis of any such hear­
ing, or upon default of the applicant or licensee the licens­
ing agency shall make a determination specifying its find­
ings of fact and conclusions of law. A copy of such deter­
mination shall be sent by registered mail or served per­
sonally upon the applicant or licensee. The decision 
revoking, suspending or denying the license or application 
shall become final thirty days after it is so mailed or served, 
unless the applicant or licensee, within such thirty day 
period, appeals the decision to the court, pursuant to 
§ 395.14.

The procedure governing hearings authorized by this 
section shall be in accordance with rules promulgated by the 
licensing agency with the advice of the advisory hospital 
council. A full and complete record shall be kept of all pro­
ceedings, and all testimony shall be reported but need not 
be transcribed unless the decision is appealed pursuant to 
§ 395.14. A copy or copies of the transcript may be ob­
tained by any interested party on payment of the cost of 
preparing such copy or copies. Witnesses may be sub­
poenaed by either part.

395.07 Rules, regulations, and enforcement
The licensing agency with the advice of the advisory hos­

pital council, shall adopt, amend, promulgate and enforce 
such rules, regulations and standards with respect to all 
hospitals or different types of hospitals to be licensed here­
under as may be designed to further the accomplishment 
of the purposes of this law in promoting safe and adequate 
treatment of individuals in hospitals in the interest of pub­
lic health, safety and welfare. However, it is understood 
that no rule, regulation or standard shall be promulgated

Federal and Florida Statutes and Regulations



48

hereunder by the licensing agency, with the advice of the 
advisory hospital council, which would have the effect of 
denying a license to a hospital or other institution required 
to be licensed hereunder, solely by reason of the school or 
system of practice employed or permitted to be employed 
by physicians therein; provided, that such school or system 
of practice is recognized by the laws of this state; and 
provided, further, that nothing in the preceding part of 
this sentence shall be construed to limit the powers of the 
licensing agency, with the advice of the advisory hospital 
council, to provide and require minimum standards for the 
maintenance and operation of those hospitals and the treat­
ment of patients in those hospitals which receive federal 
aid, to meet minimum standards related to such matters in 
said hospitals which may now or hereafter be required by 
appropriate federal officers or agencies in pursuance of 
federal law or promulgated in pursuance of federal law.

395.09 Inspections and consultations
The licensing agency shall make or cause to be made 

such inspections and investigations as it deems necessary. 
The licensing agency may prescribe by regulations that any 
licensee or applicant desiring to make specified types of 
alterations or addition to its facilities or to construct new 
facilities shall before commencing such alteration, addition 
or new construction, submit plans and specifications there­
for to the licensing agency for preliminary inspection and 
approval or recommendation with respect to compliance 
with the regulations and standards herein authorized. 
Necessary conferences and consultations mav be provided.

Federal and Florida Statutes and Regulations



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