Hugo Black

“ The first ground for the majority's state action holding rests on nothing but an assumption and a conjecture. The assumption is that the city itself maintained Baconsfield in the past. The conjecture is that it will continue to be connected with the administration of the park in the future. The only underpinning for the assumption is the circumstance that over the years Baconsfield has geographically become an adjunct to the city's park system and the admitted fact that until the present proceeding, title to it was vested in the city as trustee. ”

“ Its failing as a principle of decision in the realm of Fourteenth Amendment concerns can be shown by comparing-among other examples that might be drawn from the still unfolding sweep of governmental functions-the 'public function' of privately established schools with that of privately owned parks. Like parks, the purpose schools serve is important to the public. Like parks, private control exists, but there is also a very strong tradition of public control in this field. Like parks, schools may be available to almost anyone of one race or religion but to no others. ”

“ It dispenses with the sound and careful principles of past decisions in this realm. And it carries the seeds of transferring to federal authority vast areas of concern whose regulation has wisely been left by the Constitution to the States. ”

“ To infer from the Georgia Supreme Court's opinion, as the majority here does, a further holding that the new trustees are entitled to operate Baconsfield on a racially restricted basis, is to stretch for a constitutional issue. ”

“ For me this facet of the majority's opinion affords a wholly unacceptable basis for imputing unconstitutional state action, resting as it does on pure surmise and conjecture, and implausible ones at that. [3]
Quite evidently uneasy with its first ground of decision, the majority advances another which ultimately emerges as the real holding. This ground derives from what is asserted to be the 'public character' (ante, p. 302) of Baconsfield and the 'municipal * * * nature' of its services (ante, p. 301) . ”

“ State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, holding that a company-owned town of over 1,500 residents and effectively integrated into the surrounding area could not suppress free speech on its streets in disregard of constitutional safeguards. While no stronger case for the 'public function' theory can be imagined, the majority opinion won only five of the eight Justices participating, one of whom also concurred separately, and three spoke out in dissent. ”