Gilmore v. City of Montgomery, 417 U.S. 556 (1974)

Gilmore v. City of Montgomery

No. 72-1517

Argued January 15-16, 1974
Decided June 17, 1974
417 U.S. 556

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

Petitioners, Negro citizens of Montgomery, Ala., brought this class action in 1958 to desegregate the city’s public parks, and, in 1959, the District Court ordered the parks desegregated. The Court of Appeals affirmed, and ordered the District Court to retain jurisdiction. Thereafter, however, segregated recreational programs were continued by the city in cooperation with the YMCA, public swimming pools were closed allegedly to prevent the mixing of races, and recreational facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. The petitioners by motion in 1970 reopened the litigation based on facts developed in Smith v. YMCA, 316 F.Supp. 899 (MD Ala.1970), in which relief was obtained against the "coordinated effort" of the city and the YMCA to perpetuate the segregated parks. The claims raised by the 1970 motion were settled by agreement. In 1971 the petitioners filed the "Motion for Supplemental Relief," which forms the basis for the present phase of the litigation, complaining that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. The District Court enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities by any racially segregated private school or affiliated group, or by any private non-school group, club, or organization that has a racially discriminatory admissions policy. The Court of Appeals sustained the injunction insofar as the use of city facilities by segregated private schools was "exclusive" and not in common with other citizens, but reversed the injunction as it applied to "nonexclusive" use by segregated private schools and to use by non-school groups. The court found an insufficient threat to desegregated public education to support an injunction restraining nonexclusive use by private school groups, and no "symbiotic relationship" between the city and non-school groups so that the injunction impermissibly intruded upon the freedom of association of citizens who were members of such groups.

Held:

1. The city was properly enjoined from permitting exclusive access to its recreational facilities by segregated private schools and by groups affiliated with such schools. Pp. 566-569.

(a) Using the term "exclusive use" as implying that an entire facility is exclusively and completely in the possession, control, and use of a private group, and as also implying, without mandating, a decisionmaking role for the city in allocating such facilities among private and public groups, the city’s policy of allocating facilities to segregated private schools, in the context of the 1959 order and subsequent history, created, in effect, "enclaves of segregation" and deprived petitioners of equal access to parks and recreational facilities. Pp. 566-567.

(b) The exclusive use and control of city recreational facilities, however, temporary, by private segregated schools were little different from the city’s agreement with the YMCA to run a "coordinated" but, in effect, segregated recreational program. This use carried the brand of "separate but equal," and, in the circumstances of this case, was properly terminated by the District Court. Pp. 567-568.

(c) More importantly, the city’s policies operated directly to contravene an outstanding school desegregation order, and any arrangement, implemented by state officials at any level, that significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. Pp. 568-569.

2. On the record, it is not possible to determine whether the use of the city’s recreational facilities by private school groups in common with others, and by private non-school organizations, involved the city so directly in the action of those users as to warrant court intervention on constitutional grounds. Pp. 569-574.

(a) The record does not contain sufficient facts upon which to predicate legal judgment as to whether certain uses of city facilities in common by private school groups or exclusively or in common by non-school groups contravened the parks desegregation order or the school desegregation order, or in some way constitute "state action" ascribing to the city the discriminatory actions of the groups in question. P. 570.

(b) The portion of the District Court’s order prohibiting the mere use of city recreational facilities by any segregated "private group, club or organization" is invalid because it was not predicated upon a proper finding of state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, distinguished. Pp. 572-574.

473 F.2d 832, reversed in part, and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 576. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 577. WHITE, J., filed an opinion concurring in the judgment, in which DOUGLAS, J., joined, post, p. 581.