Palmer v. Thompson/Dissent Marshall

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice WHITE join, dissenting.

While I am in complete agreement with the opinions of Justice DOUGLAS and WHITE, I am obliged to add a few words of my own.

First, the majority and concurring opinions' reliance on the 'facially equal effect upon all citizens' of the decision to discontinue all public pools is misplaced. As long ago as 1948 in Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161, this Court held:

'The rights created by the first section of the Fourteenth     Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore,     no answer to these petitioners to say that the courts may      also be induced to deny white persons rights of ownership and      occupancy on grounds of race or color. Equal protection of     the laws is not achieved through indiscriminate imposition of      inequalities.' In short, when the officials of Jackson, Mississippi, in the circumstances of this case detailed, by Mr. Justice WHITE denied a single Negro child the opportunity to go swimming simply because he is a Negro, rights guaranteed to that child by the Fourteenth Amendment were lost. The fact that the color of his skin is used to prevent others from swimming in public pools is irrelevant.

Second, since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), public schools and public recreational facilities such as swimming pools have received identical Fourteenth Amendment protection. Indeed, exactly one week after Brown I this Court remanded three cases in the same per curiam: Florida ex rel. Hawkins v. Board of Control of Florida; Tureaud v. Board of Supervisors; and Muir v. Louisville Park Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 784, 98 L.Ed. 1112. The first two involved university education and the latter involved recreational facilities.

Even before Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), it was recognized as obvious that 'racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bathhouse facilities, the use of which is entirely optional.' Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386, 387 (C.A. 4), aff'd per curiam, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955). See also Department of Conservation and Development, Division of Parks, etc., Va. v. Tate, 231 F.2d 615 (C.A.4), cert. denied, 352 U.S. 838, 77 S.Ct. 58, 1 L.Ed.2d 56 (1956).

By effectively removing publicly owned swimming pools from the protection of the Fourteenth Amendment-at least if the pools are outside school buildings-the majority and concurring opinions turn the clock back 17 years. After losing a hard fought legal battle to maintain segregation in public facilities, the Jackson, Mississippi, authorities now seek to pick and choose which of the existing facilities will be kept open. Their choice is rationalized on the basis of economic need and is even more transparent than putting the matter to a referendum vote.

Finally, I cannot conceive why the writers of the concurring opinions believe that the city is 'locked in' and must operate the pools no matter what the economic consequences. Certainly, I am not bound by any admission of an attorney at oral argument as to his version of the law. Equity courts have always had continuing supervisory powers over their decrees; and if a proper basis for closing the facilities-other than a conclusory statement about the projected human and thus economic consequences of desegregation could be shown, swimming pools, as I imagine schools or even golf courses, could be closed.

I dissent.