Bynum v. Schiro

Decision Date01 July 1963
Docket NumberCiv. A. No. 12439.
Citation219 F. Supp. 204
PartiesHorace C. BYNUM et al., Plaintiffs, v. Victor H. SCHIRO, Individually and as Mayor of the City of New Orleans, et al., Defendants.
CourtU.S. District Court — Eastern District of Louisiana

Ernest N. Morial, A. P. Tureaud, A. M. Trudeau, Jr., New Orleans, La., Robert L. Carter, New York City, for plaintiffs.

Alvin J. Liska, Ernest L. Salatich, New Orleans, La., Jack P. Gremillion, Baton Rouge, La., Wm. P. Schuler, Arabi, La., for defendants.

Before WISDOM, Circuit Judge, and AINSWORTH and ELLIS, District Judges.

WISDOM, Circuit Judge.

In this class action the plaintiffs, New Orleans Negroes, ask the City of New Orleans for equal treatment of Negroes at the Municipal Auditorium. They complain on two counts. (1) As individuals for themselves and for all Negroes similarly situated, they complain that at all public functions held in the Auditorium, the City requires the audience to be segregated by race. (2) As officers of the New Orleans Chapter of the National Association for the Advancement of Colored People, the plaintiffs complain that the City discriminates against the NAACP and similar organizations by denying the use of the Auditorium to organizations advocating desegregation.

Cities may as well face up to the facts of life: New Orleans, here and now, must adjust to the reality of having to operate desegregated public facilities. Time has run out. There is no defense left. There is no excuse left — no excuse which a court, bound by respect for the Rule of Law, could now legitimize as a legal justification for a city's continued segregation of governmental facilities. There is left not even that last ditch, token desegregation: gradual desegregation in the name of "deliberate speed" has no application to a municipal auditorium or to other publicly owned or operated facilities presenting none of the administrative problems inherent in remaking a public school system.

We find for the plaintiffs and grant their prayer for a preliminary injunction.


A. There is no substantial dispute over the facts as they relate to the City's policy and practice of separating the races in the Auditorium. Counsel for the plaintiffs called as witnesses Mr. Wiltz Wagner, Managing Director of the Auditorium, and his chief clerk, Mrs. Melda Boyd, who has been with the Auditorium thirty-four years. They testified that as a matter of policy the City requires segregated seating at all "open" meetings held in the Auditorium. An "open" meeting, they explained, is one open to the public or one for which tickets are sold without restriction. A concert of the New Orleans Symphony is an example of an "open" meeting. The Auditorium does not prescribe segregation at religious meetings1 and "closed" meetings.

Mr. Horace C. Bynum, one of the plaintiffs, a member of the NAACP for twenty years and a Vice-President of the New Orleans Branch in 1962, testified that he applied to the Auditorium for its use for a "kick-off" meeting in a campaign to increase the membership of the local NAACP. Mr. Wagner told him that the application had to be refused because the NAACP advocated desegregation. Mr. Bynum testified that the NAACP in New Orleans had never urged the violation of a city or state law and that its policy was to seek redress through the courts. He said that he had attended a prize fight at the Auditorium where he was required to sit in a seat in a segregated section reserved for Negroes only. He assumed, based on the segregated audience, although he did not leave his seat during the fight, that there were separate washrooms and drinking fountains for Negroes. The record is otherwise silent as to segregation of these facilities. Mr. Anderson V. Washington, another plaintiff, corroborated Mr. Bynum's testimony as to the NAACP's request for the Auditorium and the reason for its rejection.

The regular form lease the Auditorium uses contains the following provision:

"This agreement is made and entered into upon the following express covenants and conditions, all and every one of which the lessee hereby covenants and agrees to and with the lessor to keep and perform.
"1. That said lessee will comply with all laws of the United States, and of the State of Louisiana, all ordinances of the City of New Orleans, and all rules and requirements of the police and fire departments, or other municipal authority of the City of New Orleans, and will obtain and pay for all necessary permits and licenses, and will not do, nor suffer to be done, anything on said premises during the term of this lease in violation of any such laws, ordinances, rules or requirements, and if the attention of said lessee is called to any such violation on the part of said lessee, or of any person employed by or admitted to the said premises by said lessee, such lessee will immediately desist from and correct such violation."

The effect of this provision is to require the licensee to agree to comply with the Louisiana Anti-Mixing Statute of 1956, LSA-R.S. 4:452-455.2 LSA-R.S. 4:452 requires the sponsors or persons in control of premises where "entertainment or athletic contests" are held to provide separate seating arrangements and separate facilities for members of the white and Negro races.3 LSA-R.S. 4:453 prohibits whites and Negroes from sitting in or using any part of seating arrangements and sanitary or other facilities set apart for members of either race. LSA-R.S. 4:454 provides the penalty for the violation of LSA-R.S. 4:452 and 4:453.

On the facts, the City, with commendable honesty, offered no countervailing evidence of its policy and practice of enforcing segregation at the Auditorium. On the law, the City closed its eyes to overwhelming high legal authority, stood up for its Auditorium policy, and defended the constitutionality of anti-mixing laws as a proper exercise of the police power.

B. "It is no longer open to question that a State or City may not constitutionally require segregation of public facilities." Johnson v. Virginia, 1963, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed. 2d 195. In that case the Court held that a city may not segregate seating in courtrooms. In other cases courts have held that public parks and playgrounds (Watson v. City of Memphis, 1963, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529), public beaches and bathhouses (Dawson v. Mayor and City Council of Baltimore, 4 Cir. 1955, 220 F.2d 386, aff'd per curiam 1935, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774), golf courses (New Orleans City Park Improvement Ass'n v. Detiege, 5 Cir. 1958, 252 F.2d 122, aff'd per curiam, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46), and restaurants in public buildings (Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S. Ct. 856, 6 L.Ed.2d 45) may not be segregated.

In view of these decisions and numerous others which might be cited, we hold that the 1956 Louisiana Anti-Mixing Law, LSA-R.S. 4:451, 452, 453, 454, 455, is unconstitutional. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 1943, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774, 1786. "Racial classifications are `obviously irrelevant and invidious.'" Goss v. Board of Education, 1963, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632. The humiliation of being restricted to a certain area in the Auditorium is sufficient harm to give the plaintiffs standing to sue. Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.

The able counsel for the State argues persuasively that the constitutionality of the statute is not at issue, since a kick-off meeting for a membership campaign is neither an "entertainment" nor an "athletic contest" and therefore does not come within the coverage of the statute. This argument would be more effective if the plaintiffs objected only to the City's refusal of the Auditorium to the NAACP and if the basis for the City's denial of the application were only the statute. But the complaint objects to segregation generally at the Auditorium. The evidence shows that all open meetings, including entertainments and athletic contests, were segregated. Bynum testified that he was required to sit in a segregated section at a prize fight in the Auditorium. The City asserted the statute as a defense. In view of these circumstances, the constitutionality of the statute is at issue. To the extent that the City relied on the law, the City relied on a law unconstitutional on its face.

C. The City's segregation policy, enforced and carried out at the Auditorium, amounts to city action to the same extent as if it were a city ordinance. "A State, or a city, may act as authoritatively through its executive as through its legislative body." Lombard v. Louisiana, 1963, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338.

The City asserts here, as it did in McCain v. Davis, 1963, E.D.La., 217 F. Supp. 661, and as it has asserted again and again in civil rights cases, as if there were no established jurisprudence, that segregation is a proper exercise of the police power to prevent disorder. This notion shows a complete misunderstanding of our federal system and the nature of rights protected under the United States Constitution. Thus, the Supreme Court has said:

"It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." Buchanan v. Warley, 245 U.S. 60, at 81, 38 S.Ct. 16, at 20, 62 L.Ed. 149.

That statement was made with regard to a city ordinance segregating Negroes and white persons by residential areas. The Supreme Court repeated the statement in Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, ...

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