Hoover Academy v. Wright Brief for Respondents in Opposition to the Petition for Writ of Certiorari

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1971 
No. 71-212

HOOVER ACADEMY,
Petitioner,

v.
REBECCA WRIGHT, et al.,

Respondents.

On Petition for Writ of Certiorari to Appeals for the Fifth Circuit the United States Court o

BRIEF FOR RESPONDENTS IN OPPOSITION TO THE PETITION FOR WRIT OF CERTIORARI

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON NORMAN CHACHKIN

10 Columbus Circle
New York, New York 10019

DAVID H. HOOD, JR.
2111-Fifth Avenue, North 
Bessemer, Alabama 35020

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama 35203

Attorneys for Respondents



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1371 
No. 71-212

HOOVER ACADEMY,
Pet it loner,

\ 7

REBECCA WRIGHT, et al.,
Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION TO THE 
PETITION FOR WRIT OF CERTIORARI________

Opinion Below

The decision of the United States District Court for the 
Northern District of Alabama is not reported. See Appendix C 
to petition. The opinion of the United States Court of Appeals 
for the Fifth Circuit is reported at 441 F.2d 447 and appears 
in Appendix A to the petition. The opinion of the Court of Appeals 
on the motion for rehearing and rehearing en banc is reported at 
441 F.2d 454.

Jurisdiction

Judgment of the Court of Appeals was entered on May 16, 1971.
A petition for rehearing was denied on May 4, 1971, and a petition
for rehearing en banc was denied June 8, 1971. The jurisdiction
of this Court rests on 28 U.S.C. §1254.

Question Presented

Was the Court of Appeals correct in holding as a matter of law 
that there was a violation of Negro plaintiffs' rights not to be



denied the equal protection of the laws by 
former public school building to a private 
Negro students from attendance?

Statement

a city's sale of a 
school which excluded

This action was brought m  the United States District Court 
for the Northern District of Alabama under 42 U.S.C. §1983 and 
28 U.S.C. §1343 and the Fourteenth Amendment to the Constitution. 
The complaint sought to enjoin the proposed leasing by the City 
of Brighton of a building known as the old Brighton High School 
to Hoover Academy, a private school maintained for whites only.
The plaintiffs sought to enjoin the defendants from leasing, 
selling or contracting the Hoover Academy to other persons except 
tor the benefit of all persons without regard to race. During the 
pendency of the action the district court expressed views that a 
lease to an all-white school would violate the Fourteenth Amendment 
Subsequently the City of Brighton entered into a contract of sale 
with Hoover Academy to dispose of the facility permanently.

A motion for preliminary injunction came on for hearing on 
September 5, 1969 and was denied on September 15, 1969. Trial 
was had on the merits on December 16. 1969 and by judgment filed
December 26, 1969 the district court dismissed the complaint.
The plaintiffs filed a timely notice of appeal on January 8, 1970, 
and on March 16, 1971 the Court of Appeals filed its opinion
reversing the decision of the district court and remanding the 
case for the entrance of appropriate relief. Petitions for
rehearing and for rehearing en banc were denied by the Court of 
Appeals.

2



The city of Brighton is a municipality of the State of Alabama 
located in Jefferson County, Alabama with a population of less than 
6,000. (63) The City Council is composed of six members: three
blacks, two whites, and the mayor who is white. (84) Pursuant to 
Alabama law the Mayor may vote as a council member and must vote 
where there is a tie. The building in question was purchased 
by the City of Brighton, by bid, from the Jefferson County Board 
of Education in 1966 following the Board's decision to close the 
school. (173, 174) The school was within two blocks of the Brighton 
City Hall, and remained vacant and unused during the City's 
ownership. (174) On July 16, 1969 black Councilmen Walter E.
Jenkins and Leonard Lewis offered a resolution that the city of 
Brighton rent, lease or purchase the old Brighton Junior High 
School for the purpose of housing all anti-poverty, community 
action, and food stamp programs. (100) The City clerk, Mrs. Ellen 
Hindman, testifying from the minutes, stated the resolution was, 
m  effect, tabled, because as worded was of a permanent nature and 
could not be passed at the same meeting in which it was introduced. 
(100) Mayor Parsons made the ruling on the motion. (180)

The Council next met in regular session on August 6, 1969.~
(103) During discussion of the Jenkins-Lewis resolution of

1/

2/
Cites are to the Record Appendix filed in the Court of Appeals. 
Ala. Code, Title 37, Sec. 404.

2/ The complete text from the minutes of the action taken on the 
motion reads: Alderman and Jenkins moved immediate adoption of the
resolution. The motion was seconded by Leonard Lewis. A dLcus^on
was of ' and ^  WaS dlSclosed that the resolution as it was SorSed was of a permanent nature and could not be adopted at the same
membing ^  whlch xt was introduced unless unanimous consent of all members present was first obtained.
4/ one special meeting was held 
discussing a sewage proposal. No discussed. (234)

July 28, 1969 for the purpose of
matters material to this case were

3



July 16, a Mr. C. I,. Smith sought recognition from the audience.
Mr. Smith was recognized and disclosed that the Hoover Academy 
desired to submit a proposal to lease the Brighton Junior High 
School building and requested an opportunity to submit a concrete
proposal to lease the property. (102) At this point, the council

5/rejected the Lewis-Jenkins resolution of July 16. Black alderman
West then moved that the Mayor be authorized to negotiate with
representatives of the Hoover Academy, the motion was seconded
and passed with 5 ayes, no nays and 1 pass. (103, 104) On August 12,

6/
1969 at a special meeting of the Council an ordinance was intro­
duced and passed purporting to authorize the Mayor to lease the 
building for two years, with option to buy or renew the lease 
at the end of the first two-year period. The vote on the ordinance

7/was taken and passed 4-3 with Mayor Parsons voting twice- and the 
three black aldermen voting against the ordinance.

5/ Voting as read from minutes into record:
Alderman Leonard Lewis, aye 

Richard Lewis, aye 
Jenkins, aye Wm. Perry, nay West, nay
Mayor Parsons, nay

Whereupon the Mayor ruled the vote tied 3-3, passage had failed.
6/ Mrs. Ellen Hindman, clerk treasurer, testified that the August 12 meeting was a special meeting and that she notified 
A ermen Leonard Lewis, Walter Jenkins and Richard Lewis by telephone he morning of the meeting. (108) Councilman Jenkins testified 
later that Mrs. Hindman did not speak to him personally, but that the 
message was left with his wife who informed of the meeting upon his 

WOrk approximately 5:15 p.m. (228) Mrs. Hindman admitted that she did not inform any of the black councilmen of the purpose of the meeting. (109)
Mayor Parsons testified and it is not disputed that he called

moS fnd a^th°rized the olerk to give notice. (142) OrdinanceNo. 668, Section 3 adopted August 6, 1968 by the Brighton city
^Pr°Vlded tW° irethods of calling special meetings; the first by the Mayor requiring 24-hour notice to members; the second by any two members upon the Mayor's refusal to adhere to written 

request to call a meeting. There is no time limit for notice specifiedon employing the second miethod. (129, 130)
Fead intoThf9 9 gG^era1 dlsfussion on the proposed ordinance No. 2-69, 

tnt° Jh* record at 15, 16, specifying terms and conditions of the
that he 1° ^  the V°te tiSd 3'3 WherSOn Mayor Parsons staged
vote, ̂ Tince ? h T o ^ c e ^ ^ o ?  S ^  - o n d  affirmat,

4



On August 27, 1969 the complaint and motion for preliminary
injunction were filed in the district court. At the hearing on the 
motion Friday, September 5, 1969 the court indicated that the lease
might fall within the proscription of Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961); Hampton v. city of
Jacksonville, Florida, 304 F.2d 320 (5th Cir. 1962). (84) Whereupon
. 8/the Mayor promptly called a special meeting of the council Monday, 
September 8, 1969 to consider "a proposal submitted by Hoover
Academy to accelerate its option to purchase the Brighton Junior 
High School building." (117, 118)

Following passage of Ordinance No. 3—69 authorizing the sale 
the Mayor signed the deed and received from the Academy the purchase 
money mortgage. (176, 177) Although the city clerk testified that
the Ordinances 2-69 and 3-69 had been published, Mrs. Hindman

, 10/ at trial could produce no certificate of publication in what
purported to be a copy of Ordinance 2-69 authorizing lease (112)
or Ordinance 3-69, purportedly authorizing sale. (124) The original
ordinances were subpoenaed by appellants’ attorneys. (124)

Mayor E. B. Parsons testified that at the July 16 meeting,
wherein the original Lewis-Jenkins resolution was introduced, he
made the ruling that the resolution was of a permanent nature and
could not be acted on without unanimous consent of council members
present. (185, 186) He further testified that following the August 16,
1969 meeting he met with Mrs. Jane Stanton, President of Hoover

8/ Mrs. Hindman testified that there was no motion or resolution 
to consider the sale of the property prior to September 8 meeting.(12 2 )

9/ According to the terms of the mortgage the city received $12,500; $500 cash payment on delivery of the deed; $500 thirty days there­
after and the balance of $100 per month on the purchase price of 
$12,500 until payment in full; unpaid principal bearing interest at 
6%: first payment due 60 days from date of delivery of deed.
i_0/ See Ala. code Title 3 7, Sec. 462.



Academy stating that he initiated the negotiations with Mrs. Stanton 
(146) Mayor Parsons identified the original ordinances” 7 2-69 
and j-69 and stated that neither contained certificate of publi­
cation by the clerk. (155, 156) The Mayor further testified that 
at time of trial the all-white Hoover Academy was the only school 
building within the city limits. (181, 182)

Hoover Academy

Mrs. jane Stanton as president of Hoover Academy testified 
that no employees, board members or students at the Academy were 
black (188), nor had there been any blacks connected with the 
school since its incorporation in 1963. (193) The district court
found as fact from the evidence that it was the policy of the 
school to accept only white students. (85) Mrs. Stanton testified 
that she first became aware of the availability of the property 
in July of 1969. (194) Prior to bringing a written offer to
purchase the property to Mr. Norman Brown, City Attorney,
September 3, 1969 (195), Mrs. Stanton testified she made overtures
to the^city of Brighton to lease or purchase in July of 1969. 
(196)~

n /  The record indicates that the court recessed for 
unng which the subpoenaed ordinances were obtained. a brief period 

(136, 155)
T^ V e^0r? ShOWS however that defendants' counsel in open court 

bv the1cn9ei,that negotiatlcns to Purchase or sell were caused in part 
hearing? (2̂ 1) qUeStl°nS °n the lega^ty of the lease at the motion

6



ARGUMENT
THE DECISION BELOW IS CLEARLY CORRECT 
AND THIS CASE PRESENTS NO SUBSTANTIAL 
ISSUES REQUIRING A GRANT OF CERTIORARI

As the opinion of the Court of Appeals points out, this 
case must be viewed in the context of continuing attempts to 
end unconstitutional segregation in the public schools of 
Jefferson County, Alabama. The issue presented is whether it 
violates the constitutional rights of black citizens for a city to 
turn over a former public school building to a private school 
that does not admit black students.

Thus, the case does not present the issues urged by the 
petitioner Hoover Academy. First, no issue of "property rights" 
is raised, since the Court of Appeals did not hold that the city 
could never dispose of the property. It only barred the particular 
disposition involved here--an attempted lease, followed by a sale, 
of publxc property to a private school under circumstances that 
would inevitably result in the undermining of desegregation.

Second, the case does not involve the issue as to whether 
the sale of the property so involved the state in the operation of 
the school so as to make the discriminatory acts of the school 
state action within the meaning of, for example, Burton v.U 7Wilmington Parking Authority, 365 U.S. 715 (1961). As the court
below pointed out, the black plaintiffs did not seek admission to

14/the school or seek to change or halt its operations.

13/ But see the remarks of the Court of Appeals at App. A to the 
cert, petition, p. 17, n. 2 (441 F.2d at 450).
14/ Hoover Academy was joined as a party defendant, of course, 
since the relief--recision of the sale--necessarily would affect 
its rights.

7



When the proper issue is focused on and seen in the context
of school desegregation, it is clear that the decision of the court
of Appeals was correct. First, the decision is consistent with
a uniform line of cases that have struck down state actions of
various kinds that have benefited one race over another by
encouraging discr irrination and segregation. Thus, the court
below relied on cases such as Reitman v. Mulkey, 387 U.S. 369
(1967) and Hunter v. Er ickson, 39 3 U.S. 385 (1969), which held
unconstitutional laws which, while racially neutral on their face,
had the practical effect of favoring one race and placing a burden
on another by encouraging private discrimination. Here, the
sale by the city to an all-white school of public property in the
face of proposals for its alternative use:

. . . had the ultimate effect of placing a
special burden on the black citizens of [the] 
community. The city in effect encouraged the maintenance of a segregated facility by its 
action. it participated in a transaction by which a public building, once open to all on 
an equal basis, was converted into a segregated 
facility where the black people of the community were no longer welcome. App. A, petition for writ of certiorari, p. 20 (441 F.2d at 451).

Second, in the specific area of aid to private segregated 
schools, the decision follows a long series of cases that have, 
without exception,held unconstitutional devices that have assisted 
in the forming or maintenance of such schools, particularly in 
the context of court-ordered desegregation of the public schools.
See Grlffin v. Prince Edward County. 3 77 U.S. 218 (1964); Hall v.
St_. Helena Parish, 197 F. Supp. 649 (E.D. La. 1961), aff'd, 368
U.S. ol5 Q 962); Lee v. Macon County Bd. of Ed.. 267 F. Supp. 458 
(M.D. Ala. 1967), a f f'd sub nom. , Wa1lace v. United States. 389 U.S. 
215 (1967), PO-i.ndexter v. Louisiana Financial Assistance Commission, 
275 F. Supp. 8 3 3 (E.D. La. 1967), a f f'd. 389 U.S. 571 (1968); Brown 
V‘ — — -tn Carol xna State Board, 296 F. Supp. 199 (D. So. Car. 1968), 
—  -'d' 393 U*S- 222 (1968); Coffey v. State Educ. Finance Commission.

8



296 F. Supp. 1589 (S.D. Miss. 1969); Lee v. Macon County Bd. of Ed,,
231 F. Supp. 745 (M.D. Ala. 1964). Although these cases involved
tuition grant statutes their consistent rationale is that state- 
action that aids or encourages in any way the operation of racially 
exclusive private schools violates the Fourteenth Amendment.

Finally, the decision below in no way conflicts with this
Court's recent decision m  Pa lrr.er v. Thompson, 402 U.S._______ ,
29 I.Ed.2d 438 (1971). Although the decision below was entered
before this Court's in Palmer, the court discussed the appli­
cability of the case since the decision, subsequently affirmed 
here, was an en banc opinion of the Fifth Circuit. The court below 
properly distinguished Palmer, pointing out that there the action 
challenged was to close swimming pools in the City of Jackson,
Mississipoi to all races. Here, on the other hand, the school
was turned over to be used solely by members of the white race. 
Thus, while in Palmer, the Fifth Circuit and this Court held that 
no badge of inequality or slavery was imposed on the black race 
in violation of the Thirteenth Amendment, the opposite conclusion 
was required in the present action. As the court below correctly 
he Id :

In the present case we are faced with what 
did not happen in Palmer. There the swimming 
pools remained closed to all. Here the school 
will be open only to the white children. Free 
access to a public building has been replaced 
by a badge implying inequality. The school 
building is now escutcheoned "for whites oily." 
Thus the effect of the city's action in selling 
a public building to an institution which it 
knew would practice racial discrimination was 
to place a special burden and a badge of 
opprobrium on the Negro citizens of Brighton, Alabama.

9



CONCLUSION

Foi the foregoing reasons, the o e t it ion for writ ot cert io cari 
should be denied.

Respectfully submitted,

JAC1 GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN10 Columbus Circle
New York, New York 10019

DAVID H. HOOD, JR.
2111-Fifth Avenue, North 
Bessemer, Alabama 35020

DEMETRIUS C. NEWTON 408 North 17th Street 
Birmingham, Alabama 35203

Attorneys for Respondents

10