Bray v. Alexandria Women's Health Clinic National Organization for Women Motion for Leave to File Brief for Respondents on Reargument

    luitrfc (ilimrt at Appeals
For the Fourth Circuit

No. 6903
ROBERT M. DAWSON, JR., et al.,

Appellants,
vs.

MAYOR AND CITY COUNCIL OF BALTIMORE CITY, 
CITY HALL, BALTIMORE, MARYLAND, et al,

Appellees.

No. 6904
MILTON LONESOME, et al.,

vs.
Appellants,

R. BROOKE MAXWELL, et al,
Appellees.

A ppeals F rom the U nited States D istrict Court for the 
D istrict of Maryland

BRIEF FOR APPELLANTS

L inwood K oger, J r.,
1607 West North Avenue, 

Baltimore, Md.,

T ucker R. Dearing,
716 North Gay Street,

Baltimore 2, Md.,

R obert L. Carter,
Jack Greenberg,
T hurgood Marshall,

107 West 43rd Street,
New York, New York,

Attorneys for Appellants.



TABLE OF CONTENTS

PAGE:

Statement of the C ase .................................................  1
The Dawson C ase .................................................  1
The Lonesome Case .............................................  3

Question Presented ..................................................... 4

Statement of F a cts ....................................................... 4
The Dawson C ase.................................................  4
The Lonesome Case .............................................  5

Argument ...................................................................... 6
State Imposed Racial Restrictions With Respect 
to the Use and Enjoyment of Publicly Owned 
and Operated Recreational Facilities Are For­
bidden by the Fourteenth Amendment.............  6

Conclusion...................................................................... 16

Table of Cases

Barbier v. Connelly, 113 U. S. 2 7 ................................  11
Beal v. Holcombe, 193 F. 2d 384 (C. A. 5th 1951),

cert, denied, 347 U. S. 974 .................................... 13,14
Bolling v. Sharpe, 347 U. S. 497 (School Segregation

Cases) ...............................................................2,7,9,12,15
Boyer v. Garrett, 182 F. 2d 582 (1950), cert, denied,

340 U. S. 912 ...........................................................7,13,14
Brown v. Board of Education, 347 U. S. 483 (School

Segregation Cases) ........................................ 2,7,9,10,15
Buchanan v. Warley, 245 U. S. 6 0 .............................. 8, 9,12
Chance v. Lambeth, 186 F. 2d 879 (1951), cert, denied,

341 U. S. 941 9



11

PAGE!

Chiles v. Chesapeake & Ohio Ry., 218 U. S. 71 . . .  . 9
Gumming v. County Board of Education, 175 U. S.

528 .............................................................................  10
Durkee v. Murphy, 181 Md. 259, 29 A. 2d 253 (1942) 6
Gong Lum v. Rice, 275 U. S. 7 8 ..................................  8,10
Henderson v. United States, 339 U. S. 8 1 6 .............  9
McKissick v. Carmichael, 181 F. 2d 949 (C. A. 4th

1951) .......................................................................  13
McLaurin v. Oklahoma State Regents, 339 U. S.

637 ..............................................................................9,13,14
Maryland v. Baltimore Radio Show, Inc., 338 U. S.

912...............................................................................  14
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . . . .  9,10
Morgan v. Virginia, 328 U. S. 337 ..............................  9,12
Nixon v. Herndon, 273 U. S. 536 .....................................  11
Ovama v. California, 332 U. S. 633 ............................  11
Plessy v. Ferguson, 163 U. S. 537 ............................  8,10
Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 11
Rice v. Arnold, 45 So. 2d 195 (Fla. 1950), judg. 

vacated and remanded, 340 U. S. 848, judg. aff’d,
54 So. 2d 114 (1951), cert denied, 342 U. S. 946 14

Shelley v. Kraemer, 334 U. S. 1 ................................  9
Sipuel v. Board of Regents, 332 U. S. 631 ............. 9,10,13
Skinner v. Oklahoma, 316 U. S. 535 ........................  11
Sweatt v. Painter, 339 U. S. 629 ............................ 9,13,14
Sweeney v. Louisville, 102 F. Supp. 525 (W. D. Ky. 

1951), aff’d, per curiam sub nom. Muir v. Louis­
ville Park Theatrical Assn., 202 F. 2d 275 (C. A. 
6th 1953), judg. vacated and remanded, 347 U. S. 
971............................................................................. 14



Ill

Takahashi v. Fish & Game Commission, 334 U. S. 410
Williams v. Kansas City, 104 F. Supp. 848 (W. D. 

Mo. 1952) aff’d, 205 F. 2d 47 (C. A. 8th 1953), cert, 
denied, 346 U. S. 826 ...............................................

Other Authority

Robertson and Kirkham, Jurisdiction of the Supreme 
Court of the United States, §314 (1951) .............

PAGE
11

13,14 

14



•Untteii Stall's (Court of Apprab
For the Fourth Circuit

o-

No. 6903
B obert M. Dawson, Jr., et ah,

vs.
Appellants,

Mayor and City Council of Baltimore City, City H all, 
Baltimore, Maryland, et al.

Appellants,

------------------ o------------------
No. 6904

Milton L onesome, et ah,

vs.
Appellants,

B. B rooke Maxwell, et ah,
Appellees.

-----------------------------o-----------------------------

BRIEF FOR APPELLANTS

Statement of the Case

The Dawson Case.

Appellants filed their complaint in the instant case on 
May 16, 1952, on behalf of themselves and other Negroes 
similarly situated seeking injunctive relief and a declara­
tory judgment against appellees, the Mayor and City Coun­
cil of Baltimore, the City Director of the Department of 
Becreation and Parks, the Board of Becreation and Parks



2

and Sun and Sand, Inc., a corporation which operates a 
concession at Fort Smallwood Park under the control and 
supervision of the Board of Becreation and Parks. As the 
grounds for relief it was alleged that the maintenance of 
racially segregated public beach and bathing facilities in 
Fort Smallwood Park constituted a denial of the rights of 
appellants and other Negroes to equality under the Four­
teenth Amendment to the Constitution of the United 
States (la).

In their answer appellees admitted that racial segrega­
tion was enforced with respect to the use of beach and 
bathing facilities at Fort Smallwood Park and alleged 
that such segregation was consistent with their obligations 
imposed by the Fourteenth Amendment in that the physical 
facilities in question were equal in all respects (10a).

On May 27, 1954, subsequent to the decision by the 
United States Supreme Court in the School Segregation 
Cases (Brown v. Board of Education, 347 U. S. 483; 
Bolling v. Sharpe, 347 U. S. 497), appellants filed a motion 
for judgment on the pleadings on the ground that the seg­
regation complained of in and of itself, without more, vio­
lated the Fourteenth Amendment (15a).

On June 18, 1954, all parties entered into stipulations 
(16a) in which it was agreed that the beach and bathing 
facilities at Fort Smallwood Park were physically equal 
so that there was no question of physical inequality in­
volved in the case at the time of decision by the trial court, 
nor is such question present in this appeal.

On June 22,1954 (41a) a consolidated hearing on appel­
lants’ motion for judgment in this and in its companion 
case, infra, was held in the court below. On July 27, 1954, 
the court filed its opinion denying appellants’ motion on 
the ground that the United States Supreme Court deci­
sions in the School Segregation Cases did not bar any and 
all state-imposed segregation, and that segregation im­



3

posed with respect to recreational facilities had not been 
outlawed by those decisions (44a). The lower court’s 
opinion is reported at 123 F. Supp. 193.

On August 25, appellants filed a motion for final judg­
ment (69a), and on the same date such final order was 
issued and appellants’ complaint was dismissed with costs 
(69a). Whereupon, appellants brought the cause here and 
their notice of appeal was filed on September 17, 1954.

The Lonesome Case.

Appellants filed their complaint here on August 8, 1952 
(18a). This is also a class suit filed pursuant to Rule 23a 
of the Federal Rules of Civil Procedure on behalf of 
appellants and all other Negroes similarly situated.

In this case, as in the companion case, supra, appel­
lants seek injunctive relief and a declaratory judgment 
against appellees, the State Commissioners of Forest and 
Parks and the Superintendent of Sandy Point State Park 
and Beach, on the ground that the maintenance of segre­
gated beach and bathing facilities at Sandy Point State 
Park and Beach constitute a violation of the Fourteenth 
Amendment to the Constitution of the United States.

On September 30, 1952, appellees filed their answer in 
which they maintained that East Beach, the beach main­
tained and operated by the State at Sandy Point State 
Park for the exclusive use of Negroes, was equal in all 
respects to the South Beach maintained in said State Park 
for the exclusive use of white persons (25a). A preliminary 
injunction was issued on June 2, 1953, on the grounds that 
such facilities were not physically equal and was vacated 
on July 9, 1953, on the ground that improvements at East 
Beach, operated for Negroes, undertaken by the State had 
made it equal to the South Beach maintained for white 
persons (29a).



On. May 29, 1954, appellants filed a motion for judg­
ment on the pleadings (38a) and on June 18 all parties 
stipulated that as between East Beach and South Beach 
there was equality with respect to physical facilities (40a). 
On July 27th, after hearing (41a), appellants’ motion for 
judgment was denied (44a). The opinion of the trial court 
is reported at 123 F. Supp. 193. On August 25th appel­
lants filed a motion for final judgment (70a) and final judg­
ment was entered the same day dismissing appellants’ com­
plaint (70a) with costs. Whereupon, appellants filed a 
notice of appeal on September 17, 1954 and brought the 
cause here.

The two cases were consolidated for argument in this 
Court as in the court below, and this consolidated brief is 
being filed for both appeals.

Question Presented

The two appeals raise the same question, namely, may 
a state, consistent with the requirements of the Fourteenth 
Amendment, enforce a policy of racial segregation in the 
use and enjoyment of public beach and bathing facilities? 
Or to put it another way, does the Fourteenth Amendment 
deprive the state of power to maintain a policy of racial 
segregation with respect to public recreational facilities, 
even though separate facilities are provided for Negroes 
which are physically equal to those provided for white 
persons?

Statement of Facts

This case has a long history, but the essential facts are 
not in dispute. Beach and bathing facilities were provided 
at Fort Smallwood Park, a municipally-owned and oper­
ated park for the recreation of the citizens of the City of



5

Baltimore. These facilities were for the exclusive use of 
white persons, and no similar facilities were provided in 
said park or in any other place for Negroes. Appellants 
sought to use the beach and bathing facilities at said park 
in the summer of 1950 and were denied such use solely 
because they were Negroes (5a-6a). Whereupon, appel­
lants instituted proceedings in the court below. On March 
2, 1951, the trial court entered judgment for the plaintiffs 
and enjoined the defendants from discriminating against 
appellants in respect to the public bathing and beach facili­
ties maintained at Fort Smallwood Park (6a). The spe­
cific order is cited in the defendants’ answer (10a). There­
after, during the summer of 1951, Negroes and white 
persons used the beach and bathing facilities at Fort Small­
wood Park on alternate days in accordance with the sched­
ule and policies adopted and enforced by appellees 
(6a, 11a).

In 1952 appellees authorized the construction of separate 
beach and bathing facilities for Negroes (6a). Appellants 
on April 1,1952, demanded of appellees that all of the facili­
ties at Fort Smallwood Park be open to all persons without 
regard to race or color (7a). Appellees acknowledged this 
demand, but the construction of segregated beach and bath­
ing facilities for the exclusive use of Negroes continued 
and was completed (7a). Appellees have maintained such 
segregated facilities for Negroes ever since and have 
refused to permit Negroes to use the beach and bathing 
facilities which they maintain for white persons (7a, 13a).

The Lonesome Case.

Here, as in the preceding case, there is no controversy 
concerning the basic facts.

Sandy Point State Park and Beach is a public recrea­
tional center owned and operated by the State of Mary­
land. All the facilities in said park are open to all persons



6

without segregation or discrimination with the exception 
of the beach and bathing facilities. The state maintains 
and operates segregated beach and bathing facilities for 
Negro and white persons. It maintains and operates South 
Beach for the exclusive use of white persons, and it main­
tains and operates East Beach for the exclusive use of 
Negroes (21a, 25a-26a).

On July 4, 1952, appellants sought to use the facilities 
at South Beach and were denied the use of such facilities 
solely because they were Negroes, and they were escorted 
to the East Beach by appellees’ employee and agent but 
refused to use the East Beach facilities on the grounds that 
the segregated facilities would not afford complete and 
wholesome recreation (21a-22a).

ARGUMENT

State Imposed Racial Restrictions With Respect to the 
Use and Enjoyment of Publicly Owned and Operated 
Recreational Facilities Are Forbidden by the Four­

teenth Amendment.

1. While there are no state statutes or city ordinances 
requiring or specifically authorizing the practices and poli­
cies here complained of, implied authority on the part of 
these public officials to separate the races exists pursuant 
to the delegation to them of the power to control and regu­
late the public facilities in question. Durkee v. Murphy, 
181 Md. 259, 29 A. 2d 253 (1942). Hence these cases are 
unencumbered by problems concerning the local source of 
appellees’ power to enforce a policy of racial segregation 
with respect to the facilities which are involved in these 
appeals.

In both cases bathing facilities—bathhouses and beaches 
—are maintained and operated under the supervision and



7

control of state officials for the recreational pleasure of the 
general public. At Fort Smallwood Park and at Sandy 
Point State Park and Beach public officials seek to enforce 
a policy and practice of racial segregation in the use and 
enjoyment of bathing facilities under their supervision and 
control. The segregated bathing facilities provided for 
the exclusive use of Negroes at both resorts are admittedly 
physically equal to those available for white persons, so 
that the sole issue raised in the trial court and here is 
whether such racial segregation is per se a violation of 
appellants’ constitutional rights.

Appellants assert here the position which they took in 
the court below—that the application of the ratio decedendi 
in the School Segregation Cases compels the conclusion 
that the racial segregation here complained of constitutes 
an unconstitutional deviation from appellees’ obligations 
under the Fourteenth Amendment. The trial court took 
the position that the “ separate but equal’ ’ doctrine was an 
appropriate constitutional yardstick in the field of public 
recreation and that the School Segregation Cases had repu­
diated the doctrine only as it applied to public schools. 
The court below concluded that the decision of this Court 
in Boyer v. Garrett, 182 F. 2d 582 (1950), was still con­
trolling.

2. We submit that the trial court fell into fatal error 
and that its decision should be reversed. In the first place 
the court approached decision from a false premise. It 
approached decision as if the “ separate but equal’ ’ doc­
trine had been adopted by the United States Supreme Court 
as an appropriate constitutional yardstick of general appli­
cation. If this were true, it would be appropriate to 
regard the School Segregation Cases as merely a special 
departure from that doctrine in the field of public educa­
tion—the view the lower court took. It is unquestionably 
true that the lower federal and state courts have assumed



8

at least since 1896 that the “ separate but equal’ ’ had been 
approved by the Supreme Court as a doctrine of general 
application. Certainly these courts have used it as the 
measure of the constitutionality of state-imposed segrega­
tion of Negroes in every area of American life. But to 
attribute to the United States Supreme Court such all 
inclusive approval of the doctrine is to misread the deci­
sions of that Court.

On the contrary, the “ separate but equal”  doctrine, 
which made its first appearance in decisions of the United 
States Supreme Court in Plessy v. Ferguson, 163 U. S. 537, 
and was there used to sustain a state statute requiring 
racial segregation in intrastate railroad coaches, has been 
utilized by that Court in only a very restricted fashion.

In Buchanan v. Warley, 245 U. S. 60, 81, the Court 
rejected the doctrine’s application to housing in these 
terms:

“ As we have seen, this court has held laws valid 
which separated the races on the basis of equal ac­
commodations in public conveyances, and courts of 
high authority have held enactments lawful which 
provide for separation in the public schools of white 
and colored pupils where equal privileges are given. 
But, in view of the rights secured by the 14th Amend­
ment to the Federal Constitution, such legislation 
must have its limitations, and cannot be sustained 
where the exercise of authority exceeds the restraints 
of the Constitution. We think these limitations are 
exceeded in laws and ordinances of the character now 
before us.”

Despite the lack of intervening developments, sweeping 
language in Gong Lum, v. Rice, 275 U. 8. 78, 85, gives the 
erroneous impression that the Supreme Court in some pre­
vious decision had accepted and applied the “ separate but



9

equal”  doctrine as an appropriate guide in the field of 
public education. This erroneous impression reappears in 
Missouri ex rel. Gaines v. Canada, 305 U. 8. 337. But the 
facts are as was pointed out in Buchanan v. Warley, supra 
—the separate hut equal doctrine has never been extended 
by the United States Supreme Court beyond the field of 
transportation in any case where such extension has been 
contested.

While the doctrine was not specifically repudiated in 
the field of public education, where the Supreme Court has 
had to determine whether the state has performed its con­
stitutional obligations of providing equal educational op­
portunities, the “ separate but equal”  doctrine has never 
been used to sustain the validity of the state’s separate 
school law. Missouri ex rel. Gaines v. Canada-, supra; 
Sipuel v. Board of Regents, 332 U. S. 631; Sweatt v. 
Painter, 339 U. S. 629; McLaurin v. Oklahoma State Re­
gents, 339 U. S. 637. And, of course, as to public education 
the doctrine has now been specifically repudiated. School 
Segregation Cases, supra.

Even in the field of transportation, the “ separate but 
equal”  doctrine has been sapped of vitality. Henderson 
v. United States, 339 U. S. 816, in outlawing segregation 
of Negroes in railroad dining cars on interstate trains con­
stituted in effect a repudiation of Chiles v. Chesapeake & 
Ohio Ry., 218 U. S. 71. Morgan v. Virginia, 328 U. S. 337, 
places persons traveling in interstate commerce beyond the 
thrust of state segregation statutes. This Court’s decision 
in Chance v. Lambeth, 186 F. 2d 879 (1951), cert, denied 341 
U. S. 941, extended the burden on commerce concept of 
the Morgan Case to include burdens incident to enforce­
ment of the carriers’ rules and regulations regarding the 
seating of white and Negro interstate passengers. Indeed, 
Buchanan v. Warley, supra; Shelley v. Kraemer, 334 IJ. S. 
1; McLaurin v. Oklahoma State Regents, supra; Sweatt v. 
Painter, supra, and the School Segregation .Cases clearly



10

reveal that the ‘ 4 separate but equal”  doctrine is a departure 
from the main stream of constitutional development as evi­
denced by the decisions of the United States Supreme 
Court. A reading of Brown v. Board of Education, supra, 
makes clear that the Supreme Court views the question in 
this light. There it said:

“ In the first cases in this Court construing the 
Fourteenth Amendment, decided shortly after its 
adoption, the Court interpreted it as proscribing all 
state-imposed discriminations ag-ainst, the Negro 
race. The doctrine of ‘ separate but equal’ did not 
make its appearance in this Court until 1896 in the 
case of Plessy v. Ferguson, supra, involving not 
education but transportation. American courts 
have since labored with the doctrine for over half 
a century. In this Court, there have been six cases 
involving the ‘ separate but equal’ doctrine in the 
field of public education. In Cumming v. County 
Board of Education, 175 U. S. 528, and Gong Bum 
v. Rice, 275 U. S .78, the validity of the doctrine 
itself was not challenged. In more recent cases, all 
on the graduate school level, inequality was found 
in that specific benefits enjoyed by white students 
were denied to Negro students of the same educa­
tional qualifications. Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337; Sipuel v. Oklahoma, 332 
U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin 
v. Oklahoma State Regents, 339 U. S. 637. In none 
of these cases was it necessary to reexamine the 
doctrine to grant relief to the Negro plaintiff. And 
in Sweatt v. Painter, supra, the Court expressly 
reserved decision on the question whether Plessy v. 
Ferguson should be held inapplicable to public edu­
cation.”

And, we repeat, as to education the doctrine has now 
been specifically repudiated. In general governmental



11

restrictions based upon rase are considered irrelevant and 
irrational and hence arbitrary exercises of state power 
forbidden under the Fourteenth Amendment. See Taka-
hashi v. Fish and Game Commission, 334 U. S. 410 ; Oyama 
v. California, 332 U. S. 633.

In determining whether a racially restrictive policy is 
permitted under the Fourteenth Amendment, it is sub­
mitted that courts should now take the position that except 
where the Supreme Court has specifically ruled that the 
“ separate but equal”  doctrine is applicable, the state policy 
in question must be tested by other yardsticks.

3. One such yardstick is the general classification test. 
Early in the history of the Fourteenth Amendment, the 
Supreme Court held that it was intended to provide equal 
protection and security “ to all under like circumstances 
in the enjoyment of their personal and civil rights”  Bar- 
bier v. Connelly, 113 U. S. 27, 31. In effectuating this pur­
pose, American courts require that all governmental classi­
fications or distinctions must be based upon some real or 
substantial difference pertinent to a valid legislative objec­
tive. See Quaker City Cab Co. v. Pennsylvania, 227 U. S. 
389; Skinner v. Oklahoma, 316 U. S. 535. This test has 
merely restricted state action which was obviously unrea­
sonable and patently discriminatory. Indeed, one would 
assume, as did Justice Holmes in Nixon v. Herndon, 273 
U. S. 536, 541, that the constitutional prohibition against 
unreasonable legislative classifications are less rigidly pro­
scriptive of state action than the Fourteenth Amendment 
prohibitions against color differentiations. There he con­
cluded :

“ States may do a good deal of classifying that 
it is difficult to believe rational, but there are limits, 
and it is too clear for extended argument that color 
cannot be made the basis of a statutory classifica­
tion affecting the right set up in this case. ’ ’



12

Certainly in view of the uncontroverted historical fact 
that the Fourteenth Amendment was intended primarily to 
protect Negroes in their rights as citizens, this should have 
been the case. The “ separate but equal”  doctrine, how­
ever, substitutes race for reasonableness as the constitu­
tional test of a classification, and the constitutional pro­
hibition against racial differentiations become in fact much 
less restrictive of governmental action than the constitu­
tional prohibition against unreasonable classifications.

In Bolling v. Sharpe, supra, this anomaly seems to have 
been removed, and racial classifications are at least sub­
jected to the same test of reasonableness as are other legis­
lative classifications. There the Court said:

“ Classifications based solely upon race must be 
scrutinized with particular care since they are con­
trary to our traditions and hence constitutionally 
suspect * # *

“ Although the Court has not assumed to define 
‘ liberty’ with any great precision, that term is not 
confined to mere freedom from bodily restraint. 
Liberty under law extends to the full range of conduct 
which the individual is free to pursue, and it cannot 
be restricted except for a proper governmental objec­
tive. Segregation in public education is not reason­
ably related to any proper governmental objective, 
and thus it imposes on Negro children of the District 
of Columbia a burden that constitutes an arbitrary 
deprivation of their liberty in violation of the Due 
Process Clause.”

Measured by this yardstick, we submit, these regula­
tions must fall.

The need to preserve the public peace cannot be used 
to justify deprivation of an individual’s constitutional 
rights. Buchanan v. Warley, supra; Morgan v. Virginia, 
supra. Moreover, argument that racial segregation here is



13

necessary to the preservation of the public peace is seri­
ously weakened in the light of the fact that no segregation 
whatsoever is practiced with respect to the facilities in 
state parks except as to the facilities involved in this appeal. 
It should further be remembered, as pointed out in the 
opinion below, the patterns of rigid segregation are fast 
disappearing throughout the State of Maryland and that 
such diverse institutions as the University of Maryland, 
Public Housing, The Junior Bar Association, Baltimore’s 
Public Schools, and the City’s Public Parks have been 
affected by this process. These factors bring into sharp 
focus the arbitrary and unreasonable character of the re­
strictions of which appellants complain.

Nor should it be forgotten that the rights secured under 
the 14th Amendment are personal and present. Sipuel 
v. Board of Regents, supra,. And see McKissick v. Car­
michael, 181 P. 2d 949 (C. A. 4th 1951). Thus these regu­
lations cannot be sustained or any notion concerning what 
may or may not be good for the greatest number of Negroes. 
Tested by the rules applicable to governmental classifica­
tions in general, the regulations which appellees seek to 
enforce with respect to the use and enjoyment of bathing 
facilities at Fort Smallwood Park and Sandy Point State 
Park are unconstitutional.

4. There are no decisions by the United States Supreme 
Court specifically approving or repudiating the “ separate 
but equal”  doctrine in the field of public recreation. Five 
cases involving this question have reached the Supreme 
Court. In three of these—Boyer v. Garrett, supra; Wil­
liams v. Kansas City, 104 F. Supp. 848 (W. D. Mo. 1952), 
aff’d 205 F. 2d 47 (C. A. 8th, 1953); and Beal v. Holcombe, 
193 F. 2d 384 (C. A. 5th 1951—certiorari was denied. In 
Garrett and Beal the state power to impose racial segre­
gation pursuant to the “ separate but equal”  doctrine was 
sustained in the lower court. In the Williams Case injunc­
tive relief had been granted which in effect barred racial



14

segregation. In Garrett certiorari was denied, because the 
petition was filed too late. 340 U. S. 912. In Beal cer­
tiorari was denied, 347 U. S. 947, but petitioner was the 
state not the original plaintiff. In Williams certiorari 
sought by the city from a lower court judgment required 
plaintiff be treated like all other persons was denied. 346 
U. S. 826.

A recital of these facts merely serves to underscore the 
admonition that such denial means no more than that less 
than four justices favored granting of the writ and carries 
with it no implications regarding the Supreme Court’s 
views on the merits of the case involved. See Mr. Justice 
Frankfurter’s separate opinion in Maryland v. Baltimore 
Radio Show, Inc., 338 U. S. 912, 919. See also Robertson 
and Kirkham, J urisdiction of the Supreme Court of the 
U nited States, §314 (1951).

In the other two cases—the only action by the Supreme 
Court touching this question—there is some indication of 
the Court’s belief that its decisions with respect to the 
scope and breadth of “ equal protection”  and “ due process”  
in the field of education are appropriate guides to deci­
sion in the field of public recreation. Rice v. Arnold, 45 
So. 2d 195 (Fla. 1950), judg. vacated and remanded, 340 
U. S. 848, judg. aff’d, 54 So. 2d 114 (1951), cert, denied, 
342 U. S. 946; Sweeney v. Louisville, 102 F. Supp. 525 (W. 
D. Ky. 1951), aff’d, per curiam sub nom. Muir v. Louisville 
Park Theatrical Assn., 202 F. 2d 275 (C. A. 6th 1953), 
judg. vacated and remanded, 347 U. S. 971.

Rice v. Arnold raised the question of the right of 
Negroes to use city owned and operated golf links under 
the same rules and conditions applicable to all other per­
sons. The Supreme Court, after decisions in the Sweatt 
and McLaurin cases in 1950, granted certiorari, vacated 
the judgment below and remanded the cause for reconsid­
eration in the light of the Sweatt and McLaurin decisions.



15

On remand the Florida Supreme Court reaffirmed its prior 
judgment and stated that in any event petitioner had mis­
conceived his remedy, and that if he sought to challenge 
the reasonableness of the judgment, the proper procedure 
would have been a bill for declaratory judgment. It was 
on this state procedural ground that the Supreme Court 
based its refusal to grant certiorari when the ease again 
reached the Supreme Court. Justices Black and Douglas 
were of the opinion that certiorari should be granted.

In the Muir Case a private theatrical organization oper­
ating in a public amphitheater was held both by the trial 
court and the Court of Appeals to be outside the reach 
of the Fourteenth Amendment when question was raised 
concerning its policy of racial discrimination. The Supreme 
Court, however, granted certiorari, vacated the judgment 
and remanded the cause for “ consideration in the light of 
the Segregation Cases * * * and conditions that now pre­
vail.”  These instances are certainly evidence that the 
Court deems the School Segregation Cases have applica­
tion in the field of public recreation. Moreover, whatever 
the present status of the “ separate but equal”  doctrine, 
it seems clear that public recreation is far closer to public 
education than it is to intrastate commerce. Therefore, it 
would seem that the field of public recreation is more likely 
to be governed by doctrines applicable to education than 
those applicable to intrastate transportation. Under these 
circumstances, we submit, it was error for the trial court 
to apply the “ separate but equal”  doctrine here. Rather 
it should have adopted the ratio decedendi in the School 
Segregation Cases and struck down appellees’ action as 
contrary to the mandate of the Fourteenth Amendment.



16

Conclusion

For the reasons hereinabove stated, we respectfully 
submit that the judgment of the court below should be 
reversed.

L inwood K oger, Jr.,
1607 West North Avenue, 

Baltimore, Md.,

T ucker R. Dearing,
716 North Gay Street,

Baltimore 2, Md.,

R obert L. Carter,
J ack Greenberg,
T hurgood Marshall,

107 West 43rd Street,
New York, New York,

Attorneys for Appellants.



S upreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320