# Evans v. Abney/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Brennan
United States Supreme Court
396 U.S. 435
Evans v. Abney
Argued: Nov. 12 and 13, 1969. --- Decided: Jan 26, 1970
Mr. Justice BRENNAN, dissenting.
For almost half a century Baconsfield has been a public park. Senator Bacon's will provided that upon the death of the last survivor among his widow and two daughters title to Baconsfield would vest in the Mayor and Council of the City of Macon and their successors forever. Pursuant to the express provisions of the will, the Mayor and City Council appointed a Board of Managers to supervise the operation of the park, and from time to time these same public officials made appointments to fill vacancies on the Board. Senator Bacon also bequeathed to the city certain bonds which provided income used in the operation of the park.
The city acquired title to Baconsfield in 1920 by purchasing the interests of Senator Bacon's surviving daughter and another person who resided on the land. Some $46,000 of public money was spent over a number of years to pay the purchase price. From the outset and throughout the years the Mayor and City Council acted as trustees, Baconsfield was administered as a public park. T. Cleveland James, superintendent of city parks during this period, testified that when he first worked at Baconsfield it was a 'wilderness * * * nothing there but just undergrowth everywhere, one road through there and that's all, one paved road.' He said there were no park facilities at that time. In the 1930's Baconsfield was transformed into a modern recreational facility byemployees of the Works Progress Administration, an agency of the Federal Government. WPA did so upon the city's representation that Baconsfield was a public park. WPA employed men daily for the better part of a year in the conversion of Baconsfield to a park. WPA and Mr. James and his staff cut underbrush, cleared paths, dug ponds, built bridges and benches, planted shrubbery, and, in Mr. James' words, 'just made a general park out of it.' Other capital improvements were made in later years with both federal and city money. The Board of Managers also spent funds to improve and maintain the park.
Although the Board of Managers supervised operations, general maintenance of Baconsfield was the responsibility of the city's superintendent of parks. Mr. James was asked whether he treated Baconsfield about the same as other city parks. He answered, 'Yes, included in my appropriation * * *.' The extent of the city's services to Baconsfield is evident from the increase of several thousand dollars in the annual expenses incurred for maintenance by the Board of Managers after the Mayor and City Council withdrew as trustees in 1964.
The city officials withdrew after suit was brought in a Georgia court by individual members of the Board of Managers to compel the appointment of private trustees on the ground that the public officials could not enforce racial segregation of the park. The Georgia court appointed private trustees, apparently on the assumption that they would be free to enforce the racially restrictive provision in Senator Bacon's will. In Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), we held that the park had acquired such unalterable indicia of a public facility that for the purposes of the Equal Protection Clause it remained 'public' even after the city officials were replaced as trustees by a board of private citizens. Consequently, Senator Bacon's discriminatory purpose could not be enforced by anyone. This Court accordingly reversed the Georgia court's acceptance of the city officials' resignations and its appointment of private trustees. On remand the Georgia courts held that since Senator Bacon's desire to restrict the park to the white race could not be carried out, the trust failed and the property must revert to his heirs. The Court today holds that that result and the process by which it was reached do not constitute a denial of equal protection. I respectfully dissent.
No record could present a clearer case of the closing of a public facility for the sole reason that the public authority that owns and maintains it cannot keep it segregated. This is not a case where the reasons or motives for a particular action are arguably unclear, cf. Palmer v. Thompson, 419 F.2d 1222 (C.A.5th Cir. 1969) (en banc), nor is it one where a discriminatory purpose is one among other reasons, cf. Johnson v. Branch, 364 F.2d 177 (C.A.4th Cir. 1966), nor one where a discriminatory purpose can be found only by inference, cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The reasoning of the Georgia Supreme Court is simply that Senator Bacon intended Baconsfield to be a segregated public park, and because it cannot be operated as a segregated public park any longer, Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); see Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 7 (1955), the park must be closed down and Baconsfield must revert to Senator Bacon's heirs. This Court agrees that this 'city park is (being) destroyed because the Constitution require(s) it to be integrated * * *.' No one has put forward any other reason why the park is reverting from the City of Macon to the heirs of Senator Bacon. It is therefore quite plain that but for the constitutional prohibition on the operation of segregated public parks, the City of Macon would continue to own and maintain Baconsfield.
I have no doubt that public park may constitutionally be closed down because it is too expensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility. In Griffin v. County School Board, 377 U.S. 218, 231, 84 S.Ct. 1226, 1233, 12 L.Ed.2d 256 (1964), we said, 'Whatever nonracial grounds might support a State's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.' In this context what is true of public schools is true of public parks. When it is as starkly clear as it is in this case that a public facility would remain open but for the constitutional command that it be operated on a non-segregated basis, the closing of that facility conveys an unambiguous message of community involvement in racial discrimination. Its closing for the sole and unmistakable purpose of avoiding desegregation, like its operation as a segregated park, 'generates (in Negroes) a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.' Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). It is no answer that continuing operation as a segregated facility is a constant reminder of a public policy that stigmatizes one race, whereas its closing occurs once and is over. That difference does not provide a constitutional distinction: state involvement in discrimination is unconstitutional, however short-lived.
The Court, however, affirms the judgment of the Georgia Supreme Court on the ground that the closing of Baconsfield did not involve state action. The Court concedes that the closing of the park by the city 'solely to avoid the effect of a prior court order directing that the park be integrated' would be unconstitutional. However, the Court finds that in this case it is not the State or city but 'a private party which is injecting the racially discriminatory motivation,' ante, at 445. The exculpation of the State and city from responsibility for the closing of the park is simply indefensible on this record. This discriminatory closing is permeated with state action: at the time Senator Bacon wrote his will Georgia statutes expressly authorized and supported the precise kind of discrimination provided for by him; in accepting title to the park, public officials of the City of Macon entered into an arrangement vesting in private persons the power to enforce a reversion if the city should ever incur a constitutional obligation to desegregate the park; it is a public park that is being closed for a discriminatory reason after having been operated for nearly half a century as a segregated public facility; and it is a state court that is enforcing the racial restriction that keeps apparently willing parties of different races from coming together in the park. That is state action in overwhelming abundance. I need emphasize only three elements of the state action present here.
First, there is state action whenever a State enters into an arrangement that creates a private right to compel or enforce the reversion of a public facility. Whether the right is a possibility of reverter, a right of entry, an executory interest, or a contractual right, it can be created only with the consent of a public body or official, for example the official action involved in Macon's acceptance of the gift of Baconsfield. The State's involvement in the creation of such a right is also involvement in its enforcement; the State's assent to the creation of the right necessarily contemplates that the State will enforce the right if called upon to do so. Where, as in this case, the State's enforcement role conflicts with its obligation to comply with the constitutional command against racial segregation the attempted enforcement must be declared repugnant to the Fourteenth Amendment.
Moreover, a State cannot divest itself by contract of the power to perform essential governmental functions. E.g., Contributors to Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20, 38 S.Ct. 35, 62 L.Ed. 124 (1917); Stone v. Mississippi, 101 U.S. 814, 25 L.Ed. 1079 (1880). Thus a State cannot bind itself not to operate a public park in accordance with the Equal Protection Clause, upon pain of forfeiture of the park. The decision whether or not a public facility shall be operated in compliance with the Constitution is an essential by governmental decision. An arrangement that purports to prevent a State from complying with the Constitution cannot be carried out, Evans v. Newton, supra; see Commonwealth of Pennsylvania v. Board of Directors, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1967). Nor can it be enforced by a reversion; a racial restriction is simply invalid when intended to bind a public body and cannot be given any effect whatever, cf. Commonwealth of Pennsylvania v. Brown, 392 F.2d 120 (C.A.3d Cir. 1968).
Initially the City of Macon was willing to comply with its constitutional obligation to desegregate Baconsfield. For a time the city allowed Negroes to use the park, 'taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.' Evans v. Newton, supra, 382 U.S. at 297, 86 S.Ct. at 487. But the Mayor and Council reneged on their constitutional duty when the present litigation began, and instead of keeping Baconsfield desegregated they sought to sever the city's connection with it by resigning as trustees and telling Superintendent James to stop maintaining the park. The resolution of the Mayor and Council upon their resignation as trustees makes it very clear that the probability of a reversion had induced them to abandon desegregation. Private interests of the sort asserted by the respondents here cannot constitutionally be allowed to control the conduct of public affairs in that manner.
A finding of discriminatory state action is required here on a second ground. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), stands at least for the proposition that where parties of different races are willing to deal with one another a state court cannot keep them from doing so by enforcing a privately devised racial restriction. See also Sweet Brair Institute v. Button, 280 F.Supp. 312 (D.C.W.D.Va.1967) (state attorney general enjoined from enforcing privately devised racial restriction). Nothing in the record suggests that after our decision in Evans v. Newton, supra, the City of Macon retracted its previous willingness to manage Baconsfield on a nonsegregated basis, or that the white beneficiaries of Senator Bacon's generosity were unwilling to share it with Negroes, rather than have the park revert to his heirs. Indeed, although it may be that the city would have preferred to keep the park segregated, the record suggests that, given the impossibility of that goal, the city wanted to keep the park open. The resolution by which the Mayor and Council resigned as trustees prior to the decision in Evans v. Newton, supra, reflected, not opposition to the admission of Negroes into the park, but a fear that if Negroes were admitted the park would be lost to the city. The Mayor and Council did not participate in this litigation after the decision in Evans v. Newton. However, the Attorney General of Georgia was made a party after remand from this Court, and, acting 'as parens patriae in all legal matters pertaining to the administration and disposition of charitable trusts in the State of Georgia in which the rights of beneficiaries are involved,' he opposed a reversion to the heirs and argued that Baconsfield should be maintained 'as a park for all the citizens of the State of Georgia.' Thus, so far as the record shows, this is a case of a state court's enforcement of a racial restriction to prevent willing parties from dealing with one another. The decision of the Georgia courts thus, under Shelley v. Kraemer, constitutes state action denying equal protection.
Finally, a finding of discriminatory state action is required on a third ground. In Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), this Court announced the basic principle that a State acts in violation of the Equal Protection Clause when it singles out racial discrimination for particular encouragement, and thereby gives it a special preferred status in the law, even though the State does not itself impose or compel segregation. This approach to the analysis of state action was foreshadowed in Mr. Justice White's separate opinion in Evans v. Newton, supra. There Mr. Justice White comprehensively reviewed the law of trusts as that law stood in Georgia in 1905, prior to the enactment of §§ 69-504 and 69-505 of the Georgia Code. He concluded that prior to the enactment of those statutes 'it would have been extremely doubtful' whether Georgia law authorized 'a trust for park purposes when a portion of the public was to be excluded from the park.' 382 U.S., at 310, 86 S.Ct., at 494. Sections 69-504 and 69-505 removed this doubt by expressly permitting dedication of land to the public for use as a park open to one race only. Thereby Georgia undertook to facilitate racial restrictions as distinguished from all other kinds of restriction on access to a public park. Reitman compels the conclusion that in doing so Georgia violated the Equal Protection Clause.
In 1911, only six years after the enactment of §§ 69-504 and 69-505, Senator Bacon, a lawyer, wrote his will. When he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by §§ 69-504 and 69-505 on testators seeking to establish racially segregated public parks. As Mr. Justice White concluded in Evans v. Newton, "the State through its regulations has become involved to such a significant extent' in bringing about the discriminatory provision in Senator Bacon's trust that the racial restriction 'must be held to reflect * * * state policy and therefore to violate the Fourteenth Amendment." 382 U.S., at 311, 86 S.Ct., at 495. This state-encouraged testamentary provision is the sole basis for the Georgia courts' holding that Baconsfield must revert to Senator Bacon's heirs. The Court's finding that it is not the State of Georgia but 'a private party which is injecting the racially discriminatory motivation' inexcusably disregards the State's role in enacting the statute without which Senator Bacon could not have written the discriminatory provision.
This, then, is not a case of private discrimination. It is rather discrimination in which the State of Georgia is 'significantly involved,' and enforcement of the reverter is therefore unconstitutional. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964).
I would reverse the judgment of the Supreme Court of Georgia.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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