Palmer v. Thompson/Opinion of the Court

by Hugo Black

United States Supreme Court

403 U.S. 217

Palmer  v.  Thompson

 Argued: Dec. 14, 1970. --- Decided: June 14, 1971

In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction. ^[1] The Court of Appeals affirmed, and we denied certiorari. ^[2] The city proceeded to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis. The District Court found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis. ^[3] It held the city's action did not deny black citizens equal protection of the laws. The Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting. ^[4] That court rejected the contention that since the pools had been closed either in whole or in part to avoid desegregation the city council's action was a denial of equal protection of the laws. We granted certiorari to decide that question. We affirm.

* Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to 'deny to any person within its jurisdiction the equal protection of the laws.' There can be no doubt that a major purpose of this amendment was to safeguard Negroes against discriminatory state laws-state laws that fail to give Negroes protection equal to that afforded white people. History shows that the achievement of equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but for the Thirteenth and Fifteenth Amendments as well. See, e.g., Slaughter-House Cases, 16 Wall. 36, 71-72, 21 L.Ed. 394 (1873). Thus the Equal Protection Clause was principally designed to protect Negroes against discriminatory action by the States. Here there has unquestionably been 'state action' because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies 'the equal protection of the laws' to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in recreational or educational activities. ^[5] See, e.g., Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied equal protection to Negroes, we must agree with the courts below and affirm.

Although petitioners cite a number of our previous cases, the only two which even plausibly support their argument are Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), and Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). For the reasons that follow, however, neither case leads us to reverse the judgment here. ^[6]

A. In Griffin the public schools of Prince Edward County, Virginia, were closed under authority of state and county law, and so-called 'private schools' were set up in their place to avoid a court desegregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the 'private schools' were open to whites only and these schools were in fact run by a practical partnership between State and county, designed to preserve segregated education. We pointed out in Griffin the many facets of state involvement in the running of the 'private schools.' The State General Assembly had made available grants of $150 per child to make the program possible. This was supplemented by a county grant program of $100 per child and county property tax credits for citizens contributing to the 'private schools.' Under those circumstances we held that the closing of public schools in just one county while the State helped finance 'private schools' was a scheme to perpetuate segregation in education which constituted a denial of equal protection of the laws. Thus the Griffin case simply treated the school program for what it was-an operation of Prince Edward County schools under a thinly disguished 'private' school system actually planned and carried out by the State and the county to maintain segregated education with public funds. That case can give no comfort to petitioners here. This record supports no intimation that Jackson has not completely and finally ceased running swimming pools for all time. Unlike Prince Edward County, Jackson has not pretended to close public pools only to run them under a 'private' label. It is true that the Leavell Woods pool, previously leased by the city from the YMCA, is now run by that organization and appears to be open only to whites. And according to oral argument, another pool owned by the city before 1963 is now owned and operated by Jackson State College, a predominantly black institution, for college students and their guests. ^[7] But unlike the 'private schools' in Prince Edward County there is nothing here to show the city is directly or indirectly involved in the funding or operation of either pool. ^[8] If the time ever comes when Jackson attempts to run segregated public pools either directly or indirectly, or participates in a subterfuge whereby pools are nominally run by 'private parties' but actually by the city, relief will be available in the federal courts.

B. Petitioners also claim that Jackson's closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such 'encouragement' is prohibited by Reitman v. Mulkey, supra.

In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accepted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U.S., at 376-378, 380-381, 87 S.Ct., at 1631-1634.

In the first place there are no findings here about any state 'encouragement' of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners' argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant in a conspiracy with the YMCA. We need not speculate upon such a possibility, for there is no such finding here, and it does not appear from this record that there was evidence to support such a finding. Reitman v. Mulkey was based on a theory that the evidence was sufficient to show the State was abetting a refusal to rent apartments on racial grounds. On this record, Reitman offers no more support to petitioners than does Griffin.

Petitioners have also argued that respondents' action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162 (1810), where the Court declined to set aside the Georgia Legislature's sale of lands on the theory that its members were corruptly motivated in passing the bill.

A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384, 88 S.Ct., at 1682, 1683. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the 'sole' or 'dominant' motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.

It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board of Prince Edward County, supra; Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (1960). But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated 'private' academies. And in Gomillion the Alabama Legislature's gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites.

Petitioners have argued strenuously that a city's possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963). But the issue here is whether black citizens in Jackson are being denied their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of 'the equal protection of the laws.'

Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 1143, 41 L.Ed. 256 (1896), argued strongly that the purpose of the Thirteenth Amendment was not only to outlaw slavery but also all of its 'badges and incidents.' This broad reading of the amendment was affirmed in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). The denial of the right of Negroes to swim in pools with white people is said to be a 'badge or incident' of slavery. Consequently, the argument seems to run, this Court should declare that the city's closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to its history. Establishing this Court's authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a law-making power far beyond the imagination of the amendment's authors. Finally, although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throughout the length and breadth of this Nation, the Amendment does contain other words that we held in Jones v. Alfred H. Mayer Co. could empower Congress to outlaw 'badges of slavery.' The last sentence of the Amendment reads:

'Congress shall have power to enforce this article by appropriate legislation.'

But Congress has passed no law under this power to regulate a city's opening or closing of swimming pools or other recreational facilities.

It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here.

The judgment is affirmed.

Affirmed.

Notes

1. Clark v. Thompson, 206 F.Supp. 539 (S.D.Miss.1962).
2. 313 F.2d 637 (CA 5), cert. denied, 375 U.S. 951, 84 S.Ct. 440, 11 L.Ed.2d 312 (1963).
3. The court's opinion is not officially reported.
4. 419 F.2d 1222 (CA 5 1969).
5. My Brother WHITE's dissent suggests that the pool closing operates unequally on white and blacks because, 'The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.' Post, at 269. It is difficult to see the force of this argument since Jackson has desegregated its public parks, auditoriums, golf course, city zoo, and the record indicates it now maintains no segregated public facilities.
6. Bush v. Orleans Parish School Board, 187 F.Supp. 42 (E.D.La.1960), aff'd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806 (1961), does not lead us to reverse the judgment here. In Bush we wrote no opinion but merely affirmed a lower federal court judgment that held unconstitutional certain laws designed to perpetuate segregation in the Louisiana public schools. One law held unconstitutional by the lower court empowered the State Governor to close any school ordered to integrate; another empowered him to close all state schools if one were integrated. Of course that case did not involve swimming pools but rather public schools, an enterprise we have described as 'perhaps the most important function of state and local governments.' Brown v. Board of Education, supra, 347 U.S., at 493, 74 S.Ct., at 691. More important, the laws struck down in Bush were part of an elaborate package of legislation through which Louisiana sought to maintain public education on a segregated basis, not to end public education. See also Bush v. Orleans Parish School Board, 188 F.Supp. 916 (E.D.La.1960). Of course there was no serious problem of probing the motives of a legislature in Bush because most of the Louisiana statutes explicitly stated they were designed to forestall integrated schools. 187 F.Supp., at 45.
7. Tr. of Oral Arg. 31-32.
8. There is no question before us here whether the black citizens of Jackson may be entitled to utilize the swimming facilities of Leavell Woods pool. Nothing on the present record indicates state involvement in the running of that pool. The YMCA, which apparently now operates the pool, was not joined as a party and thus, of course, no judgment could be entered against it.