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GILMORE ET AL. v. CITY MONTGOMERY

decided: June 17, 1974.

GILMORE ET AL
v.
CITY OF MONTGOMERY, ALABAMA, ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 576. Brennan, J., filed an opinion concurring in the judgment, post, p. 577. White, J., filed an opinion concurring in the judgment, in which Douglas, J., joined, post, p. 581.

Author: Blackmun

[ 417 U.S. Page 558]

 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

The present phase of this prolonged litigation concerns the propriety of a federal court's enjoining a municipality from permitting the use of public park recreational facilities by private segregated school groups and by other nonschool groups that allegedly discriminate in their membership on the basis of race. We granted certiorari to consider this important issue. 414 U.S. 907 (1973).

I

Petitioners are Negro citizens of Montgomery, Alabama. In December 1958, now over 15 years ago, they instituted this class action to desegregate Montgomery's public parks. The defendants are the city, its Board of Commissioners and the members thereof, the Parks and Recreation Board and its members, and the Superintendent of the Parks and Recreational Program.

By their original complaint, the petitioners specifically challenged, on Fourteenth Amendment due process and

[ 417 U.S. Page 559]

     equal protection grounds, a Montgomery ordinance (No. 21-57, adopted June 4, 1957) which made it a misdemeanor, subject to fine and imprisonment, "for white and colored persons to enter upon, visit, use or in any way occupy public parks or other public houses or public places, swimming pools, wadding [ sic ] pools, beaches, lakes or ponds except those assigned to their respective races." Both declaratory and injunctive relief were requested.*fn1 On September 9, 1959, the District Court entered its judgment that the ordinance was unconstitutional and enjoined the defendants from enforcing the ordinance "or any custom, practice, policy or usage which may require plaintiffs, or any other Negroes similarly situated, to submit to enforced segregation solely because of race or color in their use of any public parks owned and operated by the City of Montgomery, Alabama." The judgment was accompanied by a memorandum opinion. 176 F.Supp. 776 (MD Ala. 1959). On appeal, the Fifth Circuit affirmed but ordered the judgment modified to provide that the District Court retain jurisdiction. 277 F.2d 364, 368 (1960). The trial court, accordingly, ruled

[ 417 U.S. Page 560]

     that it "will and does hereby retain jurisdiction of this cause until further order."*fn2

In 1970, the petitioners sought to reopen the litigation. They filed a motion asking, among other relief, that the respondents be cited for contempt "for deliberately avoiding and violating this Court's Judgment and Order in this case."*fn3 The motion contained allegations that some of the municipal parks had been reopened "in such a manner to avoid the total and full integration of said parks"; that the city had conspired with the Montgomery YMCA to segregate swimming and other recreational facilities and programs; that recreational facilities were unequally allocated as between white and Negro neighborhoods; and that the city discriminated in its employment of personnel in recreational programs. The basis for these claims arose from other, separate litigation initiated in 1969 and resulting in the granting of affirmative relief to the plaintiffs in that suit. See Smith v. Young Men's Christian Assn., 316 F.Supp. 899 (MD Ala. 1970), aff'd as modified, 462 F.2d 634 (CA5 1972). In that action the District Court found that the "coordinated effort" of the city and of the YMCA, 316 F.Supp., at 908, and an agreement between them, reached shortly before the closing of the city parks and the entry of the court's 1959 decree, had effectuated "the perpetuation of segregated recreational facilities and programs in the City of Montgomery," id., at 909, and that it was "unmistakably clear that its purpose was to circumvent the Supreme Court's

[ 417 U.S. Page 561]

     and this Court's desegregation rulings in the area of public recreation." Id., at 908.*fn4 As summarized by the Court of Appeals, the District Court concluded:

"The YMCA, as a result of the cooperative agreement, has been performing a statutorily declared 'public function'; the Montgomery Park and Recreation Board has, in effect, transferred some of its statutory authority and responsibility to the YMCA, thereby investing the YMCA with a municipal character; and therefore the YMCA has been serving as a municipal rather than a private agency in assisting the Park Board in providing recreational programs for the city.

[ 417 U.S. Page 562]

     "The YMCA's discriminatory conduct denied the plaintiffs their Fourteenth Amendment rights to Equal Protection of the law; under the facts of this case the plaintiffs' showing of 'state action' satisfies the requirement under Title 42, U. S. C. Section 1983 that the YMCA's conduct be 'under color of law.'" 462 F.2d, at 641-642.

The modification by the Court of Appeals related only to the disapproval of a provision in the District Court's order directing a specific Negro-white ratio in the YMCA's board and executive committee. No review was sought here.

The claims raised by the petitioners in their 1970 motion were settled by agreement dated January 29, 1971.*fn5 On July 29, the respondents filed their first written progress report. On September 8, the petitioners filed a "Motion for Supplemental Relief." App. 15. This motion forms the basis for the present phase of the litigation. The petitioners complained that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. They requested injunctive relief against "the use of City owned and operated recreational facilities by any private school group, club, or organization

[ 417 U.S. Page 563]

     which is racially segregated or which has a racially discriminatory admissions policy."

The District Court granted the petitioners the relief they requested. 337 F.Supp. 22 (MD Ala. 1972). The court reasoned that Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system. The court, consequently, enjoined the city and its officials "from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy." Id., at 26. The court went on, however, with sparse findings and brief discussion, and similarly enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities "by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy." Ibid.*fn6

On appeal, the Court of Appeals reversed in part and remanded the case with directions. 47 ...


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