Gilmore v. City of Montgomery

• Decision Date: 09 February 1973
• Docket Number: No. 72-1610.,72-1610.
• Citation: 473 F.2d 832
• Parties: Georgia Theresa GILMORE et al., Plaintiffs-Appellees, v. CITY OF MONTGOMERY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

473 F.2d 832 (1973)

Georgia Theresa GILMORE et al., Plaintiffs-Appellees, v. CITY OF MONTGOMERY et al., Defendants-Appellants.

No. 72-1610.

United States Court of Appeals, Fifth Circuit.

February 9, 1973.

Joseph D. Phelps, Walter J. Knabe, Drayton Hamilton, W. Inge Hill, Montgomery, Ala., for defendants-appellants.

Truman Hobbs, Montgomery, Ala., amicus curiae.

Solomon S. Seay, Jr., Morris Dees, Joseph J. Levin, Jr., Montgomery, Ala., for plaintiffs-appellees.

Before MORGAN, CLARK and INGRAHAM, Circuit Judges.

CLARK, Circuit Judge.

The City of Montgomery makes football, basketball, and baseball facilities owned and operated by it available to private groups, including schools, churches, civic clubs and charitable organizations.¹ Plaintiffs, black residents of Montgomery, utilized this long standing class action proceeding² to seek an injunction against the City's practice of permitting the use of these public recreational facilities by racially segregated private schools and clubs. The district court granted an injunction, inter alia, prohibiting the use of city-owned recreational facilities by any private school which is racially segregated or by any private group, club, or organization, other than a private school, which has a racially discriminatory admissions policy. The full text of the order portion of this injunction is set out in the margin.³ We hold this order of the district court overbroad and affirm only to the extent that the City be enjoined from permitting the use of public recreational facilities for official athletic contests and similar functions involving racially segregated private schools and school affiliated groups.

I. SEGREGATED PRIVATE SCHOOLS

A. The Facts

This case involves the recurrent problem of the use of public property by segregated private schools in school districts under court order to desegregate public schools. Cf. Graves v. Walton County Bd. of Education, 465 F.2d 887 (5th Cir. 1972); McNeal v. Tate County School District, 460 F.2d 568 (5th Cir. 1972); Wright v. City of Brighton, 441 F.2d 447 (5th Cir.), cert. denied 404 U.S. 915, 92 S.Ct. 228, 30 L.Ed.2d 190 (1971).

In 1964 the district court held that Montgomery schools were being operated on a segregated basis in violation of the Fourteenth Amendment and ordered the desegregation of four grades in the fall of that year. Carr v. Montgomery County Bd. of Education, 232 F.Supp. 705 (M.D.Ala.1964). See also 253 F. Supp. 306 (M.D.Ala.1966) and 289 F. Supp. 647 (M.D.Ala.1968), aff'd 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). In August, 1969, the district court found that the freedom-of-choice plan which had been in effect since 1967 had not been effective in disestablishing the dual school system and, accordingly, the court directed the United States, through the Department of Health, Education and Welfare to formulate a comprehensive desegregation plan for Montgomery County. This plan which would have eliminated virtually all one-race schools in the city was approved by the district court in February, 1970, and affirmed with minor modifications by this court, 429 F.2d 382 (5th Cir. 1970).

Prior to implementation of this comprehensive desegregation plan in Montgomery, there had been limited use of public stadiums and similar facilities by private schools. However, in fall, 1971, at least four private schools with all-white enrollments, each of which had expanded its enrollment and extracurricular program subsequent to the extensive desegregation of Montgomery public schools, scheduled their home football games in public stadiums.⁴ One of these schools has announced that it will not enroll black students. The others have "declared" open enrollment policies but, in point of fact, none of these private schools have Negro students enrolled.

The district court found that by allowing private schools to schedule their athletic contests in public facilities, "Montgomery is providing aid to private, segregated schools, thus encouraging and facilitating their establishment and operation as an alternative for while students who in most instances are seeking to avoid desegregated public schools. . . . The creation and operation of these private, segregated schools is to the detriment of a racially balanced public school system in Montgomery, Alabama." 337 F.Supp. at 24-25. Specifically, the court found that the use of public athletic facilities aids such private schools in at least three direct ways: (1) the opportunity to play athletic contests in public facilities "contributes considerably to the attractiveness" of the all-white private schools and draws white students from public schools, thus increasing the difficulty of desegregating public education; (2) the use of public facilities saves the capital outlay required to build similar facilities; and (3) the City's action in granting the schools exclusive possession of city property for the duration of the contest provides a means by which the schools can raise extra revenue through the sale of tickets and refreshments.

B. The Law Applicable to the Injunction, in General

Subsequent to the implementation of a comprehensive school desegretation plan in Montgomery, new segregated private schools were established, enrollment in existing all-white private schools increased, and simultaneously, these schools began to make frequent use of public recreational facilities for their official school functions. Because of the court's prior mandate to Montgomery to eliminate racial discrimination in education, and in light of the capacity of all-white private schools to frustrate this goal, any state involvement with such schools is subject to special scrutiny. McNeal v. Tate County School Bd., supra, 460 F.2d at 574-575.⁵ It is well established that federal courts may enjoin any state assistance to private school organizations which serves to "impede, thwart or frustrate the execution of the integration plan mandated against a public school district." Aaron v. Cooper, 169 F.Supp. 325, 336 (E. D.Ark.1959), applying on remand the principles laid out by the Supreme Court, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) and the Eighth Circuit, 261 F.2d 97 (1958).⁶ Also see Griffin v. County School Bd., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).

The adverse effects of the creation of all-white private schools on public school desegregation have long been recognized in this circuit. United States v. Jefferson County Bd. of Education, 372 F.2d 836, 849 (1966), aff'd en banc 380 F.2d 385, cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967). More precisely, we have recognized that the departure of white students and teachers into private educational institutions disrupts planned desegregation of the public school system and causes resegregation,⁷ that such "white flight" has the potential to reduce community support and resources available for public education,⁸ and that resulting racial isolation perpetuates the stigma long associated with racially segregated education.⁹

Indeed, the effect of the enrollment of white children in private segregated schools is not unlike the creation of "splinter" school districts which contain proportionately more white children than the existing district. The creation of such splinter districts has been held unconstitutional where "the secession has a substantial adverse effect on desegregation of the remaining school district." Lee v. Macon County Bd. of Education, 448 F.2d 746, 752 (5th Cir. 1971). While public authorities are not required to achieve racial balance within each school within their jurisdiction, where de jure segregation has existed they are required to "make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis v. Bd. of School Comm. of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). Carving out a new, substantially whiter splinter school district is inconsistent with this affirmative duty. Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck City Bd. of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972).

Thus, neither through splinter public school districts nor through private school systems may officials whose community is subject to a desegregation order assist the establishment or maintenance of segregated educational systems which accomplish indirectly what the court has forbidden such officers to accomplish directly. Cooper v. Aaron, supra; Lee v. Macon County Bd. of Education, 267 F.Supp. 458, 475-476 (M.D. Ala.), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967).

The district court found that by allocating exclusive possession of public recreational facilities such as football stadiums, baseball diamonds, basketball courts, and tennis courts for official athletic contests and similar functions sponsored by racially segregated private schools, the City provides a publicly supported means by which these schools may generate revenue for the support of their activities. Of more practical significance, the court found that by using existing public facilities, these schools can avoid the substantial capital investment required to build comparable facilities, as well as current expenditures for maintenance and repair.

Notwithstanding the importance of these financial benefits, we would emphasize that "this is not merely a controversy over a sum of money." Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 967 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). In the case at bar, the district court recognized that the opportunity to use public stadiums and similar facilities for official school functions enhanced the attractiveness of segregated private schools. Students and their parents will be more attracted by...