Gilmore v. CITY OF MONTGOMERY, ALABAMA, Civ. A. No. 1490-N.

• Decision Date: 18 January 1972
• Docket Number: Civ. A. No. 1490-N.
• Parties: Georgia Theresa GILMORE et al., Plaintiffs, v. CITY OF MONTGOMERY, ALABAMA, a Municipal Corporation, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

337 F. Supp. 22

Georgia Theresa GILMORE et al., Plaintiffs, v. CITY OF MONTGOMERY, ALABAMA, a Municipal Corporation, et al., Defendants.

Civ. A. No. 1490-N.

United States District Court, M. D. Alabama, N. D.

January 18, 1972.

Morris S. Dees, Jr., Joseph J. Levin, Jr., and Howard A. Mandell, Montgomery, Ala., for plaintiffs.

Joseph D. Phelps, Hill, Robison, Belser, Brewer & Phelps, Walter J. Knabe, Capell, Howard, Knabe & Cobbs, and Drayton N. Hamilton, Montgomery, Ala., for defendants.

ORDER

JOHNSON, Chief Judge.

This case now is submitted upon plaintiffs' "Motion for Supplemental Relief" wherein they contend that they are deprived of constitutional rights under the Fourteenth Amendment to the United States Constitution by the City of Montgomery's policy and practice of permitting racially segregated private schools and other segregated groups to use city recreational facilities.¹ Plaintiffs ask that the Court declare the city's policy and practice unconstitutional and enjoin the city from allowing or in any way sanctioning the use of its recreational facilities by any private school or other private group which is racially segregated or which has a racially discriminatory admissions policy.

In opposition to this motion, defendants deny that the city's practice of making city owned or operated facilities open and available to all people, regardless of race, violates plaintiffs' constitutionally protected rights. The facts relevant to plaintiffs' motion are stipulated and the motion is now submitted upon the pleadings, stipulation and briefs.

The City of Montgomery makes its football, basketball and baseball facilities available on a nondiscriminatory basis to private groups who apply for them. Such private groups include schools, churches, civic clubs and charitable organizations. Among the private schools taking advantage of the city's generosity are St. James School, the Stephens-Spear School, Central Alabama Academy and the Montgomery Academy. Of these schools only Stephens-Spear has a published discriminatory admissions policy. The Montgomery Academy and St. James School have "declared" open enrollment policies.²

As to these and all other segregated private schools, the city's aid is unconstitutional. The Court is unable to distinguish the present case from those cases which struck down state statutes providing tuition grants to students attending private schools. If a tuition grant case arose in a state previously subject to de jure segregation, two elements, in addition to state aid, always were present. Initially, the state's school boards were under an affirmative constitutional duty to desegregate, and secondly, the effect of the state tuition grant scheme was to frustrate the right of Negroes to attend a desegregated public school by permitting white students to escape to segregated private schools. E. g., Coffey v. State Educ'l Finance Comm'n, 296 F.Supp. 1389 (S.D. Miss.1969) (three judges); Poindexter v. Louisiana Financial Assis. Comm'n, 275 F.Supp. 833 (E.D.La.1967) (three judges), aff'd, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968). Each of these elements is present in the case sub judice. Clearly, Montgomery is providing aid to private, segregated schools, thus encouraging and facilitating their establishment and operation as an alternative for white students who in most instances are seeking to avoid desegregated public schools. In addition, Montgomery's school board and all other city governmental officials are under an affirmative constitutional duty to desegregate. See McNeal v. Tate County School Dist., 5th Cir. No. 30722, September 17, 1971.

This court considers irrelevant the amount of city aid provided to the private schools. The applicable standard was enunciated in a tuition grant case, Griffin v. State Bd. of Educ., 296 F.Supp. 1178 (E.D.Va.1969) (three judges), where the court said: "Any assist whatever by the State towards provision of a racially segregated education exceeds the pale of tolerance demarked by the Constitution. In our judgment, ... the effect of the State's contribution is a sufficient determinant...." Thus, this Court concludes from Griffin that what is important is the effect the state's aid has on the maintenance of a racially balanced public school system, but that the extent of the aid provided is immaterial.

Even if one assumes, however, that the degree of aid is relevant, the aid provided in the present case is substantial and it significantly affects the Montgomery public school system. The opportunity to participate in sports contributes considerably to the attractiveness of any school and thereby enhances enrollments while, in the instances now presented, drawing students away from the public school system. In addition, the city saves private schools money by furnishing them a place to play free of charge. The cost of buying land and maintaining a football field, or of building a gymnasium, requires a substantial financial outlay. The money saved, of course, is being used to operate these private, segregated institutions. Even more significant, the city's aid in this case provides a means by which the schools can raise extra revenue through the sale of tickets and refreshments....