Byron White

“ Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held. Surely the promise of the Fourteenth Amendment demands more than nihilistic surrender. ”

“ The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.'
Here, too, the reality is that the impact of the city's act falls on the minority. Quite apart from the question whether the white citizens of Jackson have a better chance to swim than do their Negro neighbors absent city pools, there are deep and troubling effects on the racial minority that should give us all pause. ”

“ Officials may take effective action to control violence or to prevent it when it is reasonably imminent. But the anticipation of violence in this case rested only on unsupported assertion, to which the permanent closing of swimming pools was a wholly unjustified response. The city seems to fear that even if some or all of the pools suffered a sharp decline in revenues from the levels pertaining before 1963 because Negro and white neighbors refused to use integrated facilities, the city could never close the pools for that reason. ”

“ These considerations were not abandoned as Brown was applied in other contexts, and it is untenable to suggest that the closing of the swimming pools-a pronouncement that Negroes are somehow unfit to swim with whites-operates equally on Negroes and whites. Whites feel nothing but disappointment and perhaps anger at the loss of the facilities. Negroes feel that and more. They are stigmatized by official implementation of a policy that the Fourteenth Amendment condemns as illegal. ”

“ Perhaps it could have been presented, but there is no evidence now before us that there exists any group among the citizens of Jackson that would employ lawless violence to prevent use of swimming pools by Negroes and whites together. In my view, the Fourteenth Amendment does not permit any official act-whether in the form of open refusal to desegregate facilities that continue to operate, decisions to delay complete desegregation, or closure of facilities-to be predicated on so weak a reed. ”

“ It is evident that closing a public facility after a court has ordered its desegregation has an unfortunate impact on the minority considering initiation of further suits or filing complaints with the Attorney General. As Judge Wisdom said, ' (T) he price of protest is high. Negroes * * * now know that they risk losing even segregated public facilities if they dare to protest * * * segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether. ”

“ The city has only opposition to desegregation to offer as a justification for closing the pools, and this opposition operates both to demean the Negroes of Jackson and to deter them from exercising their constitutional and statutory rights. The record is clear that these public facilities had been maintained and would have been maintained but for one event: a court order to open them to all citizens without regard to race. ”

“ Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. ”

“ It demonstrates that it is surely wrong to suggest that simply because a city presently operates no segregated facilities there is nothing that will need to be done by way of litigation to enforce the Fourteenth Amendment in the future. Assume for instance that it can be shown that a city is providing some form of covert assistance to a 'private' organization such as the YMCA to run swimming pools on a segregated basis, one for the whites and one for the Negroes ”

“ The City of Jackson, a municipality, of course is operated by some of these high class citizens. I am further of the opinion that during this period of turmoil the time now has arrived when the judiciary should not issue injunctions perfunctorily, but should place trust in men of high character that they will obey the mandate of the Court without an injunction hanging over their heads.' 206 F.Supp., at 543. ”

“ In Memphis, Tennessee, Brown and the cases discussed above had little effect until May 1960, when Negro residents sued for declaratory and injunctive relief directing immediate desegregation of the municipal parks and other city-owned and city-operated recreational facilities. The city agreed that the Fourteenth Amendment required all facilities to be opened to citizens regardless of race and that the majority of city-run facilities remained segregated at the time of suit, six years after Brown. ”

“ As the majority correctly states, ' (i) f 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.' This is but a partial summary of the litigation that may lie ahead as some cities attempt to avoid the requirement that public facilities be operated on an integrated basis. ”

“ In that case, a three-judge court declared unconstitutional a number of Louisiana statutes designed to avoid desegregation of the public schools in that State. Among the laws stricken down was a statute giving the Governor the right to close any school ordered to integrate, a statute giving the Governor the right to close all schools if one was integrated, and a statute giving the Governor the right to close any school threatened with violence or disorder. We affirmed the District Court summarily and without dissent. Ibid. ”

“ As respondents state in their brief in this case:
'In 1963 the City of Jackson was operating equal but separate recreational facilities such as parks and golf links, including swimming pools. A suit was brought in the Southern District of Mississippi to enjoin the segregated operation of these facilities. The City of Jackson took the position in that litigation that the segregation of recreational facilities, if separate but equal recreational facilities were provided and if citizens voluntarily used segregated facilities, was constitutional.' Respondents' Brief 2. ”

“ They will not be calmed by letting violence loose-violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim-nor by submitting to it under whatever guise employed. ”

“ Parks Director Kurts filed a similar affidavit, averring:
'That after the decision of the Court in the case of Clark v. Thompson, it became apparent that the swimming pools owned and operated by the City of Jackson could not be operated peacefully, safely, or economically on an integrated basis, and the City decided that the best interest of all citizens required the closing of all public swimming pools owned and operated by the City * * *.' App. 18. ”

“ If the facts show that the city has acted in good faith for economic or other nonracial reasons, the action would have no overtones of racial degradation, and would therefore not offend the Constitution.' 419 F.2d, at 1237 n. ”

“ Justice Frankfurter observed more than 12 years ago:
'The process of ending unconstitutional exclusion of pupils from the common school system-'common' meaning shared alike solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. ”

“ The record before us does not include live testimony. It was stipulated by the parties after the District Judge had entered his order denying relief that the 'parties had an opportunity to offer any and all evidence desired.' The official affidavits filed were even less compelling than the evidence presented by city officials in Watson. ”

“ Meanwhile, countless class suits seeking desegregation orders were successfully prosecuted by Negro plaintiffs in the lower federal courts. Many public facilities were opened to all citizens, regardless of race, without direct intervention by this Court. ”

“ The conclusion of city officials that integrated pools would not be 'economical' was no more than 'personal speculation.' The city made no showing that integrated operation would increase the annual loss of at least $11,700-a loss that, prior to 1963, the city purposely accepted for the benefit of its citizens as long as segregated facilities could be maintained. ”

“ The final finding of fact was that the 'defendants are not enforcing separation of the races in public recreational facilities in the City of Jackson. The defendants do encourage voluntary separation of the races.' Ibid. [5]
Among the District Court's conclusions of law were the following: (1) that the suit was not a proper class action since the Negro plaintiffs had failed to show that their interests were not antagonistic to or incompatible with those of the purported class ”

“ Moreover, at oral argument counsel for the respondents stated that to his knowledge there has been no interracial violence in Jackson since the 1961 Freedom Rider incidents. See Tr. of Oral Arg. 36.↑ I cannot agree with the majority's attempt to discount the significance of Bush. First, the action taken in Bush in no sense depended on our conclusion in Brown that the provision of public education was an especially important state function. ”

“ Griffin rejected the relevance of these decisions; however, the present respondents rely on them here and the majority inplicitly embrances them.↑ The Court in Brown noted that in Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950) , the Court had held that a segregated law school for Negroes could not provide them equal educational opportunities, relying in large part on 'those qualities which are incapable of objective measurement but which make for greatness in a law school.' 339 U.S., at 634, 70 S.Ct., at 850. The Court in Brown also relied on McLaurin v. ”

“ Thompson, 419 F.2d 1222, 1231 (CA5 1969) (dissenting opinion) ; affidavit of Allen C. Thompson, App. 21.↑ The Mayor's affidavit makes no mention of 'minor water difficulty.'↑ The Parks Director's affidavit makes no mention of 'minor water difficulty.'↑ At oral argument, counsel for the city so conceded. Tr. ”