Wright v. City of Brighton, Alabama, 29262.

• Citation: 441 F.2d 447
• Decision Date: 08 May 1971
• Docket Number: No. 29262.,29262.
• Parties: Rebecca WRIGHT et al., Plaintiffs-Appellants, v. The CITY OF BRIGHTON, ALABAMA, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

441 F.2d 447 (1971)

Rebecca WRIGHT et al., Plaintiffs-Appellants, v. The CITY OF BRIGHTON, ALABAMA, et al., Defendants-Appellees.

No. 29262.

United States Court of Appeals, Fifth Circuit.

March 16, 1971.

Rehearing Denied and Rehearing Denied May 4, June 8, 1971.

David H. Hood, Jr., Bessemar, Ala., Jack Greenberg, Norman Amaker, James M. Nabrit, III, New York City, Demetrius C. Newton, Birmingham, Ala., for plaintiffs-appellants.

Norman K. Brown, Bessemar, Ala., Hugh Locke, Birmingham, Ala., for defendants-appellees.

Before THORNBERRY, GOLDBERG, and AINSWORTH, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied May 4, June 8, 1971.

GOLDBERG, Circuit Judge:

This case brings us to Brighton, a city in Jefferson County, Alabama, which is sited in the mainstream of the jurisprudential history of school desegregation.¹ The immediate problem involves the sale of an abandoned school building by the City of Brighton, Alabama, to the Hoover Academy, a private all-white school. The plaintiffs, black citizens of Brighton, seek to have us enjoin the sale under 28 U.S.C.A. §§ 1343(3), (4), 42 U.S.C.A. §§ 1981, 1983, and the Fourteenth Amendment, contending that the sale of the building violated their right to equal protection of the laws.

The building in question, the Brighton Junior High School, was purchased by the city in 1966 from the Jefferson County Board of Education when that Board decided to abandon the building as a part of the county school system. The building remained vacant and unused following its purchase by the city, and school facilities were furnished elsewhere for the children of Brighton by the Jefferson County Board of Education. In July of 1969, three years after the city purchased the building, two black councilmen proposed to the city council that the building be used to house certain welfare programs. Parliamentary frustrations and other maneuvers stymied this suggestion and the proposal was tabled. Shortly thereafter the council was informed that the Hoover Academy was interested in leasing the building. The council then voted to reject the earlier proposal to use the building for welfare programs, and authorized the mayor to negotiate a lease with the Hoover Academy. On August 12, 1969, the council passed an ordinance authorizing the mayor to lease the building to Hoover Academy for two years with an option to buy or renew the lease at the end of that period.

On August 27, 1969, the plaintiffs filed a complaint in the federal district court against the city and Hoover Academy, seeking to enjoin the city from leasing or selling the building to the Academy. At a preliminary hearing the court indicated that a lease by the city to a private segregated school would probably fall within the proscriptions of Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, and our opinion in Hampton v. City of Jacksonville, Florida, 5 Cir. 1962, 304 F.2d 320, cert. denied, Ghioto v. Hampton, 371 U.S. 911, 83 S.Ct. 256, 9 L.Ed.2d 170.

The Hoover Academy then proposed to accelerate its option to purchase the building. The property was appraised by three appraisers, two estimating the value of the building at $12,000 and a third fixing the amount at $12,500. Following these appraisals Hoover Academy submitted a bid to purchase the property for $12,500, payable $500 upon delivery of the deed, $500 thirty days later, and the balance at $100 per month with six percent interest on the unpaid principal, which was to be secured by a mortgage on the building. At a special meeting of the city council on September 8, 1969, the council voted to authorize the immediate sale of the building to Hoover Academy on these terms. The next day the Mayor executed a deed to the building and received from Hoover Academy a purchase money mortgage.

The plaintiffs' suit continued now as an action to enjoin the sale of the building to the Hoover Academy. The district court, citing our opinion in Derrington v. Plummer, 5 Cir., 1956, 240 F. 2d 922, cert. denied, 353 U.S. 924, 77 S. Ct. 680, 1 L.Ed.2d 719, held that the sale of the building to Hoover Academy did not violate any rights of plaintiffs or of members of their class and denied the requested relief. Plaintiffs appeal from that decision, and we reverse.

Defendant Hoover Academy claims at the outset that there is no discrimination in the operation of Hoover, and that none of the plaintiffs or members of their class have ever been denied admission to that institution. We find this contention of little merit. Hoover Academy was incorporated in 1963, and it has been "lily white" from its natal day. The district court found, and we think the evidence supports this determination, that "it is the policy of the school to accept only white students." The question, therefore, is whether it was a denial of plaintiffs' constitutional rights for the city to sell a public school building to a private school which discriminates against persons of plaintiffs' class in its admission policies.

The defendants, both the city and the academy, have approached this question in a like manner, seeking to show that there is insufficient city involvement in the operation of the school to attribute the academy's discriminatory admission policies to the city. It is true that in those cases where state involvement in an ostensibly private enterprise was deemed sufficient to make the otherwise private discrimination state action, more involvement or control was exercised by the state entity than we find here. In Burton v. Wilmington Parking Authority, supra, the Supreme Court found state involvement in the discriminatory operation of a restaurant by the state's lessee because among other facts (1) the land and building were publicly owned; (2) the leased premises constituted an indispensable part of the state's plan to operate a self-sustaining parking project; (3) the state maintained the building with public funds; and (4) the lessee enjoyed a tax exempt status. In short, the court found that the mutual benefits flowing to and from the state and the lessee indicated that the degree of state participation and involvement was sufficient to make the discriminatory operation of the restaurant state action and therefore forbidden by the Fourteenth Amendment. Here, the defendants point out that the operation of the school bears no such relationship to the public authority. There is, they assert, no public building involved, no continuing public function co-existent in the same building, and no funds from the public authority contributed for maintenance and upkeep. They argue that because this was the sale of an entire building, and not the lease of one part of a public building, all connections were severed and no state involvement remains in the operation of the Hoover Academy. Defendants further assert that there is no retained interest or control over the vendee's use of the land, a fact which this court found rendered the discriminatory operation of a golf course state action in Hampton v. City of Jacksonville, Florida, supra. In Hampton, the city sold the municipal golf courses to private owners, but retained a possibility of reverter, which would have caused the land to revert to the city if the buyers had ever used it for a purpose other than a golf course. This reservation of control we found was sufficient to involve the city in the white-only policy of the course and to convert what would otherwise have been purely private action into discrimination by the state. See also Wimbish v. Pinellas County, Florida, 5 Cir. 1965, 342 F.2d 804. The defendants compare the present case and of course find no such reservation of control. They conclude that there is no involvement of the city with the running or operation of Hoover Academy, and that the plaintiffs therefore have been denied no constitutional right.

While we agree with defendants that no prior case of this court or any other court has found state involvement in the operation of a facility on the basis of facts here presented, we do not necessarily agree that the amount of involvement between the City of Brighton and the operation of the Hoover Academy is insufficient to find that the operation of the academy is state action.² However, we do not find it necessary to decide this point. The plaintiffs did not sue to compel the integrated operation of Hoover Academy. Rather, they sued to enjoin the sale of the building to Hoover Academy. The plaintiffs do not claim that the academy's discriminatory policies are a denial of their equal rights. The plaintiffs instead complain that the sale by the city to a party that the city knew had a policy of racial discrimination was a violation of their constitutional rights. Thus, it is the sale alone, not the city's involvement in the operation of the academy, which is in question here, and it is clear beyond peradventure that the sale itself was state action. The question is whether this sale violated plaintiffs' constitutional rights. We think that it did.

The law is settled that no matter how neutral a piece of legislation or official action appears on its face, if its practical effect is to place a burden on one racial group, then such a burden constitutes a denial of equal protection. In Hunter v. Erickson, 1969, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616, the Supreme Court explained:

"Moreover, although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law\'s impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Like the law requiring specification of candidates\' race on the ballot, Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), § 137 places special burdens on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an

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