Hawkins v. Town of Shaw, Mississippi

• Decision Date: 23 January 1971
• Docket Number: No. 29013.,29013.
• Parties: Andrew HAWKINS et al., Plaintiffs-Appellants, v. TOWN OF SHAW, MISSISSIPPI, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 1286 (1971)

Andrew HAWKINS et al., Plaintiffs-Appellants, v. TOWN OF SHAW, MISSISSIPPI, et al., Defendants-Appellees.

No. 29013.

United States Court of Appeals, Fifth Circuit.

January 23, 1971.

Melvyn R. Leventhal, Jackson, Miss., Jack Greenberg, Jonathan Shapiro, New York City, for plaintiffs-appellants.

Ancil L. Cox, Jr., Cleveland, Miss., William Allain, Asst. Atty. Gen., Jackson, Miss., Cox & Moore, Attys., Cleveland, Miss., for appellees.

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

TUTTLE, Circuit Judge:

Referring to a portion of town or a segment of society as being "on the other side of the tracks" has for too long been a familiar expression to most Americans. Such a phrase immediately conjures up an area characterized by poor housing, overcrowded conditions and, in short, overall deterioration. While there may be many reasons why such areas exist in nearly all of our cities, one reason that cannot be accepted is the discriminatory provision of municipal services based on race. It is such a reason that is alleged as the basis of this action.¹

Appellants are Negro citizens of the Town of Shaw, Mississippi. They alleged that the town has provided various municipal services including street paving and street lighting, sanitary sewers, surface water drainage as well as water mains and fire hydrants in a discriminatory manner based on race. Appellants brought a class action seeking injunctive relief under 42 U.S.C. § 1983 against the town, the town's mayor, clerk and five aldermen. After a three-day trial, the trial court applied the traditional equal protection standard despite the presence of appellants' undisputed statistical evidence which we feel clearly showed a substantial qualitative and quantitative inequity in the level and nature of services accorded "white" and "black" neighborhoods in Shaw. The court stated:

"If actions of public officials are shown to have rested upon rational considerations, irrespective of race or poverty, they are not within the condemnation of the Fourteenth Amendment, and may not be properly condemned upon judicial review. Persons or groups who are treated differently must be shown to be similarly situated and their unequal treatment demonstrated to be without any rational basis or based upon an invidious factor such as race." 303 F.Supp. 1162, 1168 (N. D.Miss.1969). (Emphasis added.)

Because this court has long adhered to the theory that "figures speak and when they do, Courts listen," Brooks v. Beto, 366 F.2d 1, 9 (1966), (and see many cases cited in footnote 14, page 9) we feel that appellants clearly made out a prima facie case of racial discrimination. The trial court thus erred in applying the traditional equal protection standard, for as this Court and the Supreme Court have held: "Where racial classifications are involved, the Equal Protection and Due Process Clauses of the Fourteenth Amendment `command a more stringent standard' in reviewing discretionary acts of state or local officers. Jackson v. Godwin, 400 F.2d 529, 537 (5th Cir., 1968)." In applying this test, defendants' actions may be justified only if they show a compelling state interest. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). We have thoroughly examined the evidence and conclude that no such compelling interests could possibly justify the gross disparities in services between black and white areas of town that this record reveals.

FACTS

The Town of Shaw, Mississippi, was incorporated in 1886 and is located in the Mississippi Delta. Its population, which has undergone little change since 1930, consists of about 2,500 people — 1,500 black and 1,000 white residents. Residential racial segregation is almost total. There are 451 dwelling units occupied by blacks in town, and, of these, 97% (439) are located in neighborhoods in which no whites reside. That the town's policies in administering various municipal services have led to substantially less attention being paid to the black portion of town is clear.

Nearly 98% of all homes that front on unpaved streets in Shaw are occupied by blacks. Ninety-seven percent of the homes not served by sanitary sewers are in black neighborhoods. Further, while the town has acquired a significant number of medium and high intensity mercury vapor street lighting fixtures, every one of them has been installed in white neighborhoods. The record further discloses that similar statistical evidence of grave disparities in both the level and kinds of services offered regarding surface water drainage, water mains, fire hydrants, and traffic control apparatus was also brought forth and not disputed. Finally, it was alleged that this disparity was the result of a long history of racial discrimination.

Surely, this was enough evidence to establish a prima facie case of racial discrimination. The only question that remains to be examined is whether or not these disparities can possibly be justified by any compelling state interests. As we have already indicated, an examination of the record reveals they cannot.

STREET PAVING

The undisputed evidence is that 97% of all those who live in homes fronting on unpaved streets are black. In attempting to justify this, the trial court stated:

"Initially, concrete paving was afforded to those streets serving commercial and industrial interests and to the areas nearest the town\'s center. In some cases this resulted in more street paving in white than Negro neighborhoods, but the paving actually done in the municipality was on the basis of general usage, traffic needs and other objective criteria. Residential neighborhoods not facing principal streets or thoroughfares long remained unpaved, regardless of their character as white or black neighborhoods."

The record simply does not support the justification that streets were built according to traffic needs and usage. The town's one engineer who made recommendations to defendants as to the priority of street paving projects testified that he had never surveyed the town to determine which streets were used the most. Nor did he compare the usage of streets in black neighborhoods with the usage of those in white neighborhoods. He even admitted that he was not familiar with the usage of streets in the Promised Land Addition, which is one of the oldest and largest black neighborhoods in Shaw.

The finding that many streets were paved in the business areas and that this resulted, "in some cases", in providing more paving in white rather than black neighborhoods, also fails to justify the existing disparities. As appellants point out, in 1956 when the first residential streets in black neighborhoods were paved, 96% of the white residents of Shaw already lived on paved streets, most of which had been paved during the 1930's. Many of these streets, however, were solely residential, and could not possibly serve commercial, industrial or any public buildings.

The trial court also found that many of the streets on which blacks live were too narrow to pave. The town engineer had testified that streets in black neighborhoods had not been paved because they did not have the fifty foot right-of-way he considered necessary. However, as appellants point out, most of the streets in Shaw, in both black and white neighborhoods, have platted rights of way that range from 30 to 40 feet. Further, while most streets under 50 feet in white neighborhods are paved, those in the black areas are not.

In short, even if we assume that such criteria as traffic usage, need and width constitute compelling state interests, they were not applied equally to both black and white neighborhoods. We are led to the inevitable conclusion that Shaw's policies, which have resulted in such significant disparities between the black and white portions of town, are, in no way, justifiable.

STREETS LIGHTS

The record clearly shows that absolutely no high power mercury vapor street lights have been installed in black residential areas. Only the much weaker bare bulb fixtures are to be found. The trial court stated that there was no showing that the lighting was inadequate and, in any event:

"The brighter lights are provided for those streets forming either a state highway, or serving commercial, industrial or special school needs, or otherwise carrying the heaviest traffic load."

The fact that there was no specific showing that lighting was not adequate is not significant. What is significant is that it is clear that all of the better lighting that exists in Shaw can be found only in the white parts of town. Surely, this cannot be justified merely on the ground that the bare bulb fixtures are not shown to be inadequate. One might readily assume, it seems, that the modern high intensity lights are more adequate from the fact of their use by the city. Improvements to existing facilities provided in a discriminatory manner may also constitute a violation of equal protection.

The other justifications accepted by the trial court again fail, for if the "special needs" criteria were applied equally for the benefit of both black and white citizens, all the high intensity lights would not be in only the white areas of town. For example, while streets with heavy traffic serving commercial and public centers, such as Gale Street, in black areas have only bare bulb fixtures, many little traveled streets in white neighborhoods have the high intensity variety. In short, we are again convinced that as with the paving of streets, the placement of new light fixtures only in the white portion of town, cannot be justified.

SANITARY SEWERS

While 99% of white residents are served by a sanitary sewer system, nearly 20% of the black population is not so served. The trial court thought this was justified by noting that:

Part of the problem in reaching all older unserved areas has been the necessity for bringing this service into newer subdivisions developed for both races and brought into the town,

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