City of Memphis v. Greene

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 79-1176 Argued: December 3, 1980 --- Decided: April 20, 1981
JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether a decision by the city of Memphis to close the north end of West Drive, a street that traverses a white residential community, violated § 1 of the Civil Rights Act of 1866, Rev.Stat. § 1978, 42 U.S.C. § 1982 or the Thirteenth Amendment to the United States Constitution. [n1] The city's action was challenged by respondents, who resided in a predominantly black area to the north. The Court of Appeals ultimately held the street closing invalid because it adversely affected respondents' ability to hold and enjoy their property. 610 F.2d 395. We reverse because the record does not support that holding.

I

Most of the relevant facts concerning the geography, the decision to close the street, and the course of the litigation are not in dispute. The inferences to be drawn from the evidence, however, are subject to some disagreement.

A. Geography

Hein Park, a small residential community in Memphis, Tenn., is bounded on three sides by thoroughfares and on the west by the campus of Southwestern University. West Drive is a two-lane street about a half mile long passing through the center of Hein Park. Its southern terminus is a short distance from an entrance to Overton Park, a large recreation [p103] area containing, among other facilities, the municipal zoo. [n2] Its northern terminus is at the intersection of Jackson Ave. and Springdale St., two heavily traveled four-lane avenues. West Drive is one of three streets that enter Hein Park from the north; two streets enter from the east.

The closing will have some effect on both through traffic and local traffic. Prior to the closing, a significant volume of traffic southbound on Springdale St. would continue south on West Drive and then -- because of the location of Overton Park to the south of Hein Park -- make either a right or a left turn to the next through street a few blocks away, before resuming the southerly route to the center of the city. The closing of West Drive will force this traffic to divert to the east or west before entering Hein Park, instead of when it leaves, but the closing will not make the entire route any longer. With respect to local traffic, the street closing will add some distance to the trip from Springdale St. to the entrance to Overton Park, and will make access to some homes in Hein Park slightly less convenient.

The area to the north of Hein Park is predominantly black. All of the homes in Hein Park were owned by whites when the decision to close the street was made.

B. City Approval

In 1970, residents of Hein Park requested the city to close four streets leading into the subdivision. After receiving objections from the police, fire, and sanitation departments, the city denied the request. [n3] In its report regarding the application, [p104] the city's Traffic Engineering Department noted that much of the traffic through the subdivision could be eliminated by closing West Drive at Jackson Ave. Trial Exhibit 14. Thereafter, on July 9, 1973, members of the Hein Park Civic Association filed with the Memphis and Shelby County Planning Commission a formal "Application to Close Streets or Alleys" seeking permission to close West Drive for 25 feet south of Jackson Ave. See Trial Exhibit 13, App. 135. The application was signed by the two property owners abutting both Jackson Ave. and West Drive and all but one of the other West Drive homeowners on the block immediately south of Jackson Ave. Ibid. [n4] The stated reasons for the closing were:

(1) Reduce flow of through traffic using subdivision streets.

(2) Increase safety to the many children who live in the subdivision and those who use the subdivision to walk to Snowden Junior High School.

(3) Reduce "traffic pollution" in a residential area, e.g., noise, litter, interruption of community living.

Ibid.

After receiving the views of interested municipal departments, the County Planning Commission, on November 1, 1973, recommended that the application be approved with the conditions that the applicants provide either an easement for existing and future utility company facilities or the funds to relocate existing facilities, and that the closure provide clearance for fire department vehicles. Trial Exhibit 4, App. 130. The City Council held a hearing at which both proponents and opponents of the proposal presented their views, and the Council adopted a resolution authorizing the closing [p105] subject to the conditions recommended by the Planning Commission. See Trial Exhibit 26. The city reconsidered its action and held additional hearings on later dates, but never rescinded its resolution. [n5] See Trial Exhibits 27-30, 41.

C. Litigation

In a complaint filed against the city and various officials in the United States District Court for the Western District of Tennessee on April 1, 1974, three individuals and two civic associations, suing on behalf of a class of residents north of Jackson Ave. and west of Springdale St., alleged that the closing was unconstitutional and prayed for an injunction requiring the city to keep West Drive open for through traffic. [n6] The District Court granted a motion to dismiss, holding that the complaint, as amended, failed to allege any injury to the plaintiffs' own property or any disparate racial effect, [n7] and [p106] that they had no standing as affected property owners to raise procedural objections to the city's action. [n8]

The United States Court of Appeals for the Sixth Circuit reversed. The court first noted that

a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.

535 F.2d 976, 978. The court concluded that respondents' complaint, fairly construed, alleged that the city had conferred certain benefits -- "to-wit, the privacy and quiet of an exclusive dead-end street" -- on white residents that it refused to confer on similarly situated black residents. Ibid. Accordingly, the court held that, if respondents could prove that city officials conferred the benefit of a closed street on West Drive residents "because of their color," respondents would have a valid claim under either 42 U.S.C. § 1982 or § 1983. 535 F.2d at 979. [n9]

Following the remand, the case was transferred to Judge McRae for trial. Respondents amended their pleadings and, in pretrial discovery, reviewed all street closings in Memphis during the prior 10-year period, as well as the entire record [p107] concerning the closing of West Drive. An elaborate pretrial order entered on February 9, 1978, identified three contested issues of fact:

(a) Whether the defendants, by closing West Drive, have conferred certain benefits on white residents of West Drive that they have refused to confer on similarly situated black neighborhoods because of their color.

(b) Whether a discriminatory purpose was a motivating factor in the decision of the City Council to close West Drive.

(c) Whether the defendants and their agents complied with the normal procedural sequence in processing the application to close a portion of West Drive. If not, the extent to which they failed to comply.

App. 87.

After a full trial, Judge McRae filed a detailed memorandum decision in which he found against the respondents on each of the three contested issues of fact. He specifically concluded that the action of the City Council closing West Drive "did not create a benefit for white citizens which has been denied black citizens"; [n10] that racially discriminatory intent or purpose had not been proved; [n11] and that the city [p108] had not departed significantly from normal procedures in authorizing the closing. [n12] Accordingly, the District Court entered judgment for the city.

The Court of Appeals did not reject any of the District Court's findings of fact. The Court of Appeals did hold, however, that Judge McRae had erred by limiting his focus to the issue of whether the city had granted a street closing application made by whites, while denying comparable benefits to blacks. 610 F.2d at 400-401. Although the Court of Appeals recognized that the reasoning of its earlier opinion could have induced such a narrow focus, and that the record supported Judge McRae's findings on this issue, the court held that the respondents need not show that the city had denied street-closing applications submitted by black neighborhoods to show a violation of § 1982. 610 F.2d at 400-402. [p109] Rather, the court held that respondents could demonstrate that this particular street closing was a "badge of slavery" under § 1982 and the Thirteenth Amendment without reference to the equal treatment issue. [n13]

The Court of Appeals recognized that a street closing may be a legitimate and effective means of preserving the residential character of a neighborhood and protecting it from the problems caused by excessive traffic. 610 F.2d at 402. The Court of Appeals concluded, however, that relief under § 1982 was required here by the facts: (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a "barrier was to be erected precisely at the point of separation of these neighborhoods, and would undoubtedly have the effect of limiting contact between them"; (3) that the closing was not part of a city-wide plan, but rather was a "unique step to protect one neighborhood from outside influences which the residents considered to be ‘undesirable"'; and (4) that there was evidence of "an economic depreciation in the property values in the predominantly black residential area." [n14] Before addressing the legal issues, we consider the [p110] extent to which each of these conclusions is supported by the record and the District Court's findings.

D. The Evidence

The first of the four factual predicates for the Court of Appeals' holding relates to the effect of the closing on black residents, and is squarely rooted in the District Court's findings. Judge McRae expressly found that the City Council action "will have disproportionate impact on certain black citizens." App. 161. He described the traffic that will be diverted by the closing as "overwhelming black," ibid., and noted that the white residents of West Drive will have less inconvenience. [n15] We must note, however, that, although neither Judge McRae nor the Court of Appeals focused on the extent of the inconvenience to residents living north of Jackson Ave., the record makes it clear that such inconvenience will be minimal. A motorist southbound on Springdale St. could continue south on West Drive for only a half mile before the end of West Drive at Overton Park would necessitate [p111] a turn. [n16] Thus, unless the motorist is going to Overton Park, the only effect of the street closing for traffic proceeding south will be to require a turn sooner, without lengthening the entire trip or requiring any more turns. [n17] Moreover, even the motorist going to Overton Park had to make a turn from West Drive and a short drive down North Parkway to reach the entrance to the park. The entire trip from Springdale St. to the park will be slightly longer with West Drive closed, but it will not be significantly less convenient. [n18] Thus, although it is correct that the motorists who [p112] will be inconvenienced by the closing are primarily black, the extent of the inconvenience is not great.

As for the Court of Appeals' second point, the court attached greater significance to the closing as a "barrier" between two neighborhoods than appears warranted by the record. The physical barrier is a curb that will not impede the passage of municipal vehicles. [n19] Moreover, because only one of the several streets entering Hein Park is closed to vehicular traffic, the other streets will provide ample access to the residences in Hein Park. [n20] The diversion of through traffic around the Hein Park residential area affects the diverted motorists, but does not support the suggestion that such diversion will limit the social or commercial contact between residents of neighboring communities. [n21] [p113]

The Court of Appeals' reference to protecting the neighborhood from "undesirable" outside influences may be read [p114] as suggesting that the court viewed the closure as motivated by the racial attitude of the residents of Hein Park. The District Court's findings do not support that view of the record. Judge McRae expressly discounted the racial composition of the traffic on West Drive in evaluating its undesirable character; he noted that

excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood.

App. 161. The transcript of the City Council hearings indicates that the residents of West Drive perceived the traffic to be a problem because of the number and speed of the cars traveling down West Drive. [n22] Even if the statements of the residents of West Drive are discounted as self-serving, there is no evidence that the closing was motivated by any racially exclusionary desire. [n23] The City Council members who favored the closing expressed concerns similar to those of the West Drive residents. [n24] Those who [p115] opposed the resolution did so because they believed that a less drastic response to the traffic problems would be adequate and that the closing would create a dangerous precedent. [n25] The one witness at trial who testified that "someone" soliciting signatures for a petition favoring the closure had described the traffic on West Drive as "undesirable traffic," stated that the solicitor mentioned excess traffic and danger to children as reasons for signing. [n26] Unlike the Court of Appeals, [p116] we therefore believe that the "undesirable" character of the traffic flow must be viewed as a factor supporting, rather than undermining, the validity of the closure decision. To the extent that the Court of Appeals' opinion can be read as making a finding of discriminatory intent, the record requires us to reject that finding in favor of the District Court's contrary conclusion. Judge McRae expressly found that the respondents had not proved that the City Council had acted with discriminatory intent. App. 161. [n27] [p117]

Finally, the Court of Appeals was not justified in inferring that the closure would cause "an economic depreciation in the property values in the predominantly black residential area. . . ." 610 F.2d at 404. The only expert testimony credited by the District Court on that issue was provided by a real estate broker called by the plaintiffs. [n28] His expert opinion, as summarized by the District Court, was that "there would not be a decrease in value experienced by property owners located to the north of West Drive because of the closure." App. 155. After the witness had expressed that opinion, he admittedly speculated that some property owners to the north might be envious of the better housing that they could not afford, and therefore might be less attentive to the upkeep of their own property, which, in turn, "could have a detrimental effect on the property values in the future." [n29] [p118] In our opinion, the District Court correctly refused to find an adverse impact on black property values based on that speculation. [n30] [p119]

In summary, then, the critical facts established by the record are these: the city's decision to close West Drive was motivated by its interest in protecting the safety and tranquility of a residential neighborhood. The procedures followed in making the decision were fair, and were not affected by any racial or other impermissible factors. The city has conferred a benefit on certain white property owners, but there is no reason to believe that it would refuse to confer a comparable benefit on black property owners. The closing has not affected the value of property owned by black citizens, but it has caused some slight inconvenience to black motorists.

II

Under the Court's recent decisions in Washington v. Davis, 426 U.S. 229, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, the absence of proof of discriminatory intent forecloses any claim that the official action challenged in this case violates the Equal Protection Clause of the Fourteenth Amendment. Petitioners ask us to hold that respondents' claims under § 1982 and the Thirteenth Amendment are likewise barred by the absence of proof of discriminatory purpose. We note initially that the coverage of both [p120] § 1982 and the Thirteenth Amendment is significantly different from the coverage of the Fourteenth Amendment. The prohibitions of the latter apply only to official action, or, as implemented by 42 U.S.C. § 1983 (1976 ed., Supp. III), to action taken under color of state law. We have squarely decided, however, that § 1982 is directly applicable to private parties, Jones v. Alfred H. Mayer Co., 392 U.S. 409; cf. Runyon v. McCrary, 427 U.S. 160, 170-174; and it has long been settled that the Thirteenth Amendment

is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.

Civil Rights Cases, 109 U.S. 3, 20. Thus, although respondents challenge official action in this case, the provisions of the law on which the challenge is based cover certain private action, as well. Rather than confront prematurely the rather general question whether either § 1982 or the Thirteenth Amendment requires proof of a specific unlawful purpose, we first consider the extent to which either provision applies at all to this street closing case. We of course deal first with the statutory question.

III

Section 1982 provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell hold, and convey real and personal property.

To effectuate the remedial purposes of the statute, the Court has broadly construed this language to protect not merely the enforceability of property interests acquired by black citizens, but also their right to acquire and use property on an equal basis with white citizens. Thus, in Hurd v. Hodge, 334 U. S 24, the Court refused to permit enforcement of private covenants imposing racial restrictions on the sale of property even though the legal rights of blacks [p121] to purchase or to sell other property were unimpaired. [n31] In Jones, supra, we held that § 1982 "must encompass every racially motivated refusal to sell or rent." 392 U.S. at 421-422. [n32] In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, we interpreted the term "lease" in § 1982 to include an assignable membership share in recreational facilities. [n33] In Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. [p122] 431, we extended that holding to cover a preference to purchase a nontransferable swim club membership. [n34] Although these cases broadly defined the property rights protected by § 1982, our cases, like the statutory language itself, all concerned the right of black persons to hold and acquire property on an equal basis with white persons and the right of blacks not to have property interests impaired because of their race. [n35] [p123]

Therefore, as applied to this case, the threshold inquiry under 1982 must focus on the relationship between the street closing and the property interests of the respondents. As the Court of Appeals correctly noted in its first opinion, the statute would support a challenge to municipal action benefiting white property owners that would be refused to similarly situated black property owners. For official action of that kind would prevent blacks from exercising the same property rights as whites. But respondents' evidence failed to support this legal theory. Alternatively, as the Court of Appeals held in its second opinion, the statute might be violated by official action that depreciated the value of property owned by black citizens. But this record discloses no effect on the value of property owned by any member of the respondent class. Finally, the statute might be violated if the street closing severely restricted access to black homes, because blacks would then be hampered in the use of their property. Again, the record discloses no such restriction. [n36] [p124]

The injury to respondents established by the record is the requirement that one public street rather than another must be used for certain trips within the city. We need not assess the magnitude of that injury to conclude that it does not involve any impairment to the kind of property interests that we have identified as being within the reach of § 1982. We therefore must consider whether the street closing violated respondents' constitutional rights.

IV

In relevant part, the Thirteenth Amendment provides:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

In this case, respondents challenge the conferring of a benefit upon white citizens by a measure that places a burden on black citizens as an unconstitutional "badge of slavery." Relying on Justice Black's opinion for the Court in Palmer v. Thompson, 403 U.S. 217, the city argues that, in the absence of a violation of specific enabling legislation enacted pursuant to § 2 of the Thirteenth Amendment, any judicial characterization of an isolated street closing as a badge of slavery would constitute the usurpation of "a law-making power far beyond the imagination of the amendment's authors." Id. at 227. [n37]

Pursuant to the authority created by § 2 of the Thirteenth [p125] Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the "badges and incidents of slavery." [n38] The exercise of that authority is not inconsistent with the view that the Amendment has self-executing force. As the Court noted in Jones v. Alfred H. Mayer Co., 392 U.S. at 439:

"By its own unaided force and effect," the Thirteenth Amendment "abolished slavery" and established "universal freedom." Civil Rights Cases, 109 U.S. 3, 20. Whether or not the Amendment itself did any more than that -- a question not involved in this case -- it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. [n39]

In Jones, the Court left open the question whether § 1 of the Amendment, by its own terms, did anything more than abolish [p126] slavery. [n40] It is also appropriate today to leave that question open, because a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not, in any event, be fairly characterized as a badge or incident of slavery.

We begin our examination of respondents' Thirteenth Amendment argument by reiterating the conclusion that the record discloses no racially discriminatory motive on the part of the City Council. [n41] Instead, the record demonstrates that the interests that did motivate the Council are legitimate. Proper management of the flow of vehicular traffic within a city requires the accommodation of a variety of conflicting interests: the motorist's interest in unhindered access to his destination, the city's interest in the efficient provision of municipal services, the commercial interest in adequate parking, the residents' interest in relative quiet, and the pedestrians' interest in safety. Local governments necessarily exercise wide discretion in making the policy decisions that accommodate these interests.

In this case, the city favored the interests of safety and tranquility. As a matter of constitutional law, a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events. The decision to reduce the flow of traffic on West Drive was motivated, in part, by [p127] an interest in the safety of children walking to school. [n42] That interest is equally legitimate whether it provides support for an arguably unnecessary preventive measure or for a community's reaction to a tragic accident that adequate planning might have prevented. See Thomas Cusack Co. v. Chicago, 242 U.S. 526.

The residential interest in comparative tranquility is also unquestionably legitimate. That interest provides support for zoning regulations, designed to protect a "quiet place where yards are wide, people few, and motor vehicles restricted. . . ." Village of Belle Terre v. Boraas, 416 U.S. 1, 9; Arlington County Board v. Richards, 434 U.S. 5, and for the accepted view that a man's home is his castle. The interest in privacy has the same dignity in a densely populated apartment complex, cf. Payton v. New York, 445 U.S. 573, or in an affluent neighborhood of single-family homes. [n43] In either context, the protection of the individual interest may involve the imposition of some burdens on the general public.

Whether the individual privacy interests of the residents of Hein Park, coupled with the interest in safety, should be considered strong enough to overcome the more general interest in the use of West Drive as a thoroughfare is the type of question that a multitude of local governments must resolve every day. Because there is no basis for concluding that the interests favored by the city in its decision were contrived or pretextual, the District Court correctly concluded that it had no authority to review the wisdom of the city's policy decision. See Railway Express Agency, Inc. v. New York, 336 U.S. 106, 109. [p128]

The interests motivating the city's action are thus sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on the liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. The argument that the closing violates the Amendment must therefore rest not on the actual consequences of the closing, but rather on the symbolic significance of the fact that most of the drivers who will be inconvenienced by the action are black.

But the inconvenience of the drivers is a function of where they live and where they regularly drive -- not a function of their race; the hazards and the inconvenience that the closing is intended to minimize are a function of the number of vehicles involved, not the race of their drivers or of the local residents. Almost any traffic regulation -- whether it be a temporary detour during construction, a speed limit, a one-way street, or a no-parking sign -- may have a differential impact on residents of adjacent or nearby neighborhoods. Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation's adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom. Proper respect for the dignity of the residents of any neighborhood requires that they accept the same burdens as well as the same benefits of citizenship regardless of their racial or ethnic origin.

This case does not disclose a violation of any of the enabling legislation enacted by Congress pursuant to § 2 of the Thirteenth Amendment. To decide the narrow constitutional question presented by this record, we need not speculate about the sort of impact on a racial group that might be [p129] prohibited by the Amendment itself. We merely hold that the impact of the closing of West Drive on nonresidents of Hein Park is a routine burden of citizenship; it does not reflect a violation of the Thirteenth Amendment.

The judgment of the Court of Appeals is

Reversed.

1. Section 1982 provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

The Thirteenth Amendment provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

2. Overton Park was described in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 406:

Overton Park is a 342-acre city park located near the center of Memphis. The park contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path, an art academy, picnic areas, and 170 acres of forest.

3. See Trial Exhibit 14. This history points up the distinction between what the local residents may request or desire and what action the city may authorize. It is, of course, the city's action that is challenged in this litigation.

4. Only the signatures of the "abutting property owners" were required on the application.

5. The opponents of the closing submitted to the Council written objections containing approximately 1,000 signatures.

6. App. 4-5. In 1977, the District Court granted a motion to intervene made by three additional individual plaintiffs who lived north of Jackson Ave. Id. at 46-54. The class ultimately certified by the District Court consisted of

black persons in the City of Memphis who own or stand to inherit property surrounding and adjoining the area along West Drive and Hein Park Subdivision.

Stipulation of Parties as to Maintenance of Cause as a Rule 23(b)(2) Class Action, Record Doc. No. 23; Order Granting Motion to Amend and Certification of Class Action, App. 67. The original complaint also challenged the city's action in striking from the municipal budget the construction of a $750,000 federal-state financed community center in the plaintiffs' neighborhood. Id. at 4. No question related to that challenge remains in the litigation.

7.

None of the plaintiffs [live] on West Drive; none are deprived of reasonable ingress and egress to their property; the street is not proposed to be closed to blacks and open to whites. In short, the effect of the proposed closing, whether wise or unwise, is the same upon whites as it is to blacks. Palmer v. Thompson, 403 U.S. 217. . . . There is no facial discriminatory import to the resolution of closure, and there is no assertion that it will be implemented or administered in a racially discriminatory fashion or effect. Plaintiffs complain only that they will be denied access to West Drive from the north just as every other citizen will be.

Id. at 29-30 (footnote omitted).

8.

Plaintiffs have no constitutional property rights in continued access to West Drive under the facts asserted or on the basis asserted in the complaint. They have no standing as affected property owners on the street to due process notice and hearing.

Id. at 31.

9. The Court of Appeals summarized its holding as follows:

To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to, in itself, violate equal protection or, alternatively, to command an inference of racial motivation. . . .

. . . According to the instant complaint allegations, the closing of West Drive left certain white residents with privacy and quiet of a dead-end street, though black residents, for racial reasons, have been and would be unable to acquire such a dead-end street.

535 F.2d at 979-980.

10.

Upon a consideration of the facts established, this Court concludes that the action of the City Council which undertakes to close West Drive did not create a benefit for white citizens which has been denied black citizens. The proof shows that this is the only time that the street and alley closing procedure has been used to close a street which serves as a thoroughfare for the residents and the public. From the standpoint that the closing procedure has been used to close alleys and dedicated but unused streets, the proof shows that the procedure has benefited black citizens as well as white citizens.

App. 159.

11.

This Court concludes that the closure of West Drive in the manner adopted by the City Council will have disproportionate impact on certain black citizens. However, the Court also concludes that there is not sufficient proof of racially discriminatory intent or purpose on the part of the city officials to establish a constitutional violation.

As heretofore indicated, by placing the narrow barrier at the intersection of West Drive and Jackson, the southbound overwhelmingly black traffic will no longer be allowed to continue a logical and direct route across Jackson. At the same time the white residents of West Drive will have considerably less traffic. The residents of West Drive also will have less inconvenience, because most of their movement will logically take them southbound on departure and northbound on return.

However, this Court does not believe that the disparate impact is so stark that a purpose or intent of racial discrimination may be inferred. It must be noted that excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood.

* * * *

Similarly this Court does not find a purpose or intent to racially discriminate based upon a consideration of other evidence in the case as directed in Arlington Heights v. Metropolitan Housing Corp., [429 U.S. 252, 267-268.]

Id. at 161-162.

12. Respondents had contended that procedural defects violated state law and the Due Process Clause of the Fourteenth Amendment, and also provided evidence of an intent to discriminate. Judge McRae considered and rejected each of these contentions. Id. at 149-153, 162-163. Although the briefs and oral arguments in this Court contained discussion of procedural issues, inasmuch as the Court of Appeals did not rely upon such issues and we find no error in their treatment by the District Court, they will not be further discussed.

13. The court purported to leave open the question whether intent is ever an element of a plaintiff's § 1982 case. 610 F.2d at 404, n. 13.

14. The Court of Appeals summarized its holding in this paragraph:

Without endeavoring to establish any legal guidelines for the determination of when conduct may amount to a badge of slavery, we find the determinations made by the district court here to be altogether adequate to bring the conduct complained of within that description. The community to be benefited by the closing was, and had historically been, all white. Conversely, the territory to be burdened by the closing was predominantly black. The barrier was to be erected precisely at the point of separation of these neighborhoods, and would undoubtedly have the effect of limiting contact between them. The proposed closing was not enacted in response to any uniform city planning effort, directed generally to the preservation of the residential neighborhoods throughout the city; instead it appears to have been a unique step to protect one neighborhood from outside influences which the residents considered to be "undesirable." Finally, there was some evidence, credited by the district court, of an economic depreciation in the property values in the predominantly black residential area with a corresponding increase in the property values in Hein Park. The result, under the unique circumstances here, can only be seen as one more of the many humiliations which society has historically visited upon blacks. Where that racial humiliation not only rises to the level of a badge of slavery but also affects the right of blacks to hold property in the same manner as other citizens, then Section 1982 has been violated, and the federal courts must provide a suitable remedy.

Id. at 404 (footnote omitted) .

15. Judge McRae noted that the West Drive residents will have the benefit of less traffic and will be inconvenienced less than the black residents living north of Jackson Ave., because the movement of the West Drive residents "will logically take them southbound on departure and northbound on return." App. 161. Judge McRae plainly stated his opinion that the street closing was unwise because it will interfere with the provision of municipal services and encourage vandalism in the neighborhood. Ibid. He clearly concluded, however, that the adverse impact on blacks was greater than on whites.

16. Robert Miller, Executive Director of the Planning Commission testified:

[T]he Planning Commission and council didn't think that closing this intersection would really impede the traffic, because West Drive didn't go anywhere anyway. It is not like closing a major street in this area that goes for miles and miles and go into strategic landmarks in Memphis, strategic locations that people are getting to.

Tr. 26. One City Council member expressed surprise that anyone from north of Jackson Ave. would want to use West Drive, inasmuch as West Drive is a two-lane street with no traffic light, and the alternative routes are four-lane streets with traffic lights. See Trial Exhibit 26, pp. 32-33 (remarks of Mr. Hyman).

17. Although the street closing will also have an effect on motorists driving north along West Drive and will make the homes of the plaintiff class less accessible, the location of Overton Park will prevent motorists from using West Drive as a direct northern route.

18. See Tr. 164-165. The District Court summarized one respondent's claim of inconvenience:

Plaintiff N. T. Greene testified at the trial in this Court that the closure would compound the multitude of negative experiences that he has encountered as a black person. He complained that the closure would prevent convenient vehicular access to various facilities contained in Overton Park, and would cause him, his family, and neighbors psychological and emotional damage. His home is located on Terry Circle in Memphis, Tennessee, which is northwest from the intersection of West Drive and Jackson Avenue (T.E. 22). Insofar as his use of West Drive to and from his residence, the closure would cause him no actual inconvenience.

App. 154. Mr. Greene lives 1 1/2 miles from the Jackson Ave.-West Drive intersection. See Tr. 45. A portion of Mr. Greene's testimony is quoted in the dissenting opinion, post at 140, n. 3.

19. The District Court described the closing as follows:

The partial closing will be accomplished by having the northernmost property owners on West Drive buy a 25-foot east-west strip across the entire width of the street. Because officials of certain departments of the city deem it necessary that public service vehicles will be able to cross the strip, a 24-foot gap will be left in the barricade. There will be a speed breaker across the gap, but other details, such as signs, have not been finalized.

App. 148-149.

20. The District Court summarized the testimony of one witness who testified about the actual difficulty involved in reaching Hein Park homes:

Mrs. Elnora Priest Cross, an intervening plaintiff, testified that she would like to be able to go through West Drive. She has a friend who works at the home of someone who lives on West Drive and contacts her in the event of an emergency.[2]

[2]Mrs. Cross will still be able to reach her friend; however, she will be inconvenienced by having to use a different route.

App. 154. Mrs. Cross lives 3 1/2 miles to the northwest of the Jackson Ave.-West Drive intersection. Tr. 62. A portion of Mrs. Cross' testimony is quoted in the dissenting opinion, post at 140, n. 3.

21. Whether the closing will have the effect of barring pedestrians from access to West Drive from Jackson Ave. is not entirely clear from the record. At trial, Judge McRae asked Robert Miller, the Executive Director of the Planning Commission, whether the City Council resolution, which stated that the portion of West Drive to be deeded to the property owners abutting West Drive and Jackson Ave. was to be "closed to the public," meant that the public could not walk across the property. The question produced the following testimony:

THE WITNESS: No. I don't think it means that. I think it was closed to vehicular traffic.

THE COURT: All right.

THE WITNESS: I think if you want to walk through there you still can do that according to the plan. There is not a high curb there, it is sort of like a roll curb, but the intended closing was for the obstruction of vehicular traffic.

THE COURT: Do you think that that has been made plain to these --

THE WITNESS: (Interjecting) I believe so. That was brought out at the hearings.

There was no intention not to let people walk on through there if they wanted to, to my knowledge.

THE COURT: Are you going to be happy if somebody tries to stop a pedestrian and have them say, "Bob Miller said I could do this."

THE WITNESS: Well, all I can indicate to you -- well, let me say this. There are conditions imposed in that closing. Emergency vehicles can plow on through that.

THE COURT: That is not the public, though.

THE WITNESS: No, that is not the public, that is the city. I think the intent of the thing was not to fence it so that nobody could walk through. But to plant it, put I roll curb in there, and to completely discourage the use of automobiles through that portion that is closed; automobiles, trucks, what have you -- vehicles.

THE COURT: All right.

Thank you Mr. Miller.

Tr. 215-216. Mr. Miller later admitted, however, that the portion of the street deeded by the city would become part of the lots of the abutting property owners, that the only restrictions on the deeds would be those requiring access by municipal vehicles, and that pedestrians walking across the strip of land would be walking across private property. Id. at 218-219. The abutting property owners did not testify at trial, and the District Court made no finding on this issue. The Court of Appeals noted that, although the record was unclear as to whether the abutting property owners would, in fact, bar all foot traffic, "it is clear that the proposed conveyance will leave them with the absolute right to do so if they wish. . . ." 610 F.2d at 396.

22. Dr. Bill Weber, a resident of West Drive, stated in support of the closing that traffic studies had counted 1,600 to 1,700 cars per 12-hour period traveling down West Drive, and 200 cars per hour during the peak morning and afternoon periods. He stated that "we feel this is excessive traffic for a residential area." Trial Exhibit 26, p. 11. Mrs. Betsy Robbins, another resident of West Drive, stated:

We're an active part of our area. This is our area. But in the midst of our interests in the whole area we found that one of the major problems is on our own doorstep. The hazardous traffic on West Drive. Our greatest worry here is children. . . . In addition to all the children on the street, each school morning and afternoon about 150 youngsters cross West Drive at my corner going to and from Snowden School. The stop sign on this corner is frequently ignored by swift traffic. Daily, I find myself rushing to the window when I hear screeching brakes. I'm terrified that some driver has hit a child.

Id. at 15.

23. We must bear in mind that respondents have sued the city, the Mayor, and the City Council and its chairman. Therefore, we must focus on the decisions of these public officials, and not on the actions of the residents of Hein Park, in determining whether respondents have proved their claim.

24. One Council member stated that the major streets running parallel to West Drive to the east and to the west are only six-tenths of a mile apart, and "are designed to be thoroughfares." West Drive, however, "is not designed and never was designed to be a thoroughfare" bearing the burden of heavy traffic. Id. at 31-32 (remarks of Mrs. Awsumb). Another Council member stated from personal experience that traffic was heavy on West Drive even at night, and expressed doubt that a compromise, such as speedbreakers at the intersection of West Drive and Jackson Ave., would be sufficient to stop the "hotrodders." Id. at 31 (remarks of Mr. Love). The Council discussed a traffic study which showed that 22,505 vehicles entered the West Drive-North Parkway intersection during a 12-hour period, and that 820 of these cars exited from West Drive onto North Parkway. Id. at 34.

25. In moving for reconsideration of the Council resolution, Councilman Alissandratos stated:

While I certainly feel for particular neighborhood and appreciate the fact that they want to maintain a high standard of a neighborhood, we are still involved with a street that is operated and maintained by taxpayers money, and I think it would be an injustice to close it, in addition to the fact that it would be establishing a very dangerous president [sic] in the rest of the City.

Trial Exhibit 27, p. 2. See also id. at 3, 4 (remarks of Mr. James). The Council members who opposed the closing preferred a compromise solution to the traffic problem, such as a low speed limit and speedbreakers. See Trial Exhibit 26, p. 28 (remarks of Mr. Davis); ibid. (remarks of Mr. Ford); id. at 29-31 (remarks of Mr. Alissandratos).

26. Mrs. Terry, the one resident of the block of West Drive closest to Jackson Ave. who did not sign the application to close the street and who testified against the closing at the City Council hearing, testified as follows at the trial:

Q. Were you approached by anyone who asked you to sign this petition? A. Yes.

Q. Did they give you any reason as to why they would like to have you sign their petition? A. That there was excess traffic on the street and it was dangerous for children. It was my understanding that trash was thrown out of windows of cars and stuff like that, so it made our street littered.

Q. Based on what was told to you during those encounters, did you gain the impression that there was any racial consideration? A. At one point, someone said to us, the person who was passing the petition, that the traffic on the street was undesirable traffic. And I did not ask what that person meant.

Q. Did they make any reference to the people of North Memphis? A. Just the people coming through Hein Park.

Q. How did they describe them? A. This was just one statement, that the traffic was undesirable traffic. But now, you see I did not ask a question to pursue that.

App. 114 115. Even if Mrs. Terry did receive the impression that the person who spoke to her considered the traffic undesirable because of the race of the drivers, that isolated bit of hearsay evidence is not sufficient to justify a Court of Appeals' finding that the City Council was motivated by racial animus when the District Court made a contrary finding on the basis of the record as a whole.

27. As JUSTICE MARSHALL correctly notes in dissent, the city of Memphis continued to oppose the prompt desegregation of its municipal parks and recreational facilities as late as 1963, see Watson v. Memphis, 373 U.S. 526, cited post at 144, n. 10, and 152; moreover, the pre-World War II development of Hein Park may well have been influenced by the racial segregation which was then common, see post at 137, and the record contains evidence that racial prejudice still exists in Memphis, see post at 142, n. 7. We agree with JUSTICE MARSHALL that these facts are relevant, but we cannot say that they required the District Court to find that the City Council's action in this case was racially motivated, or that its contrary finding is erroneous as a matter of law. Indeed, JUSTICE MARSHALL's own interpretation of the record is somewhat ambivalent, since he sometimes refers to the evidence as supporting a "strong inference" of racial motivation, post at 153, and elsewhere implies that the city's action was taken "‘solely because of . . . race,'" see ibid. The record plainly does not support a conclusion that the residents of Hein Park would have welcomed the heavy flow of transient traffic through their neighborhood if the drivers had been predominantly white. It is unlikely that a mother who finds herself "rushing to the window when I hear screeching brakes," see n. 22, supra, is concerned about the race of the driver of the vehicle.

28. One of the named respondents and a class member also offered their opinion as to the effect of the closing on the value of their homes. Respondent Greene expressed the opinion that the enhancement of the value of the white-owned homes and the restricted accessibility of his home would have a detrimental effect on the value of his home. Tr. 38. One homeowner who lived to the north of Jackson Ave. expressed the opinion that the street closing would depreciate the value of his property because it would increase the amount of traffic on his street. Id. at 128. The record does not support the suggestion that the closing will affect the traffic flow north of Jackson Ave. or impede access to any residence to the north. Neither the Court of Appeals nor the District Court relied on the testimony of these two witnesses.

29. Because any adverse effect on property values has critical importance in our consideration of § 1982, we quote the relevant testimony of the witness Moore in full

Q. Now, Mr. Moore, what effect, if any, would this proposed closure have on the property values in the Springdale area; just across Jackson there? A. I am intimately familiar with the Springdale area, having been a real estate agent who more or less was instrumental in providing some houses for those in low economic groups in that area.

From an economic standpoint, there would not be a lessening of value in those properties in the Springdale area, but from a psychological standpoint, it would have a tendency to have a demoralizing --

Mr. Holmes: (Interjecting) I object to that answer. He is not qualified as an expert in psychological opinions.

Mr. Wharton: Well, if he would like to strike that whole answer, we don't have a problem with that.

Mr. Holmes: Well, we only object to the psychological evaluation. He has stated that the property values. in and of themselves. would not go down.

The Court: Right.

Mr. Wharton: From his real estate background.

Q. (By Mr. Wharton) Would you please continue with your response, Mr. Moore? A. In my opinion, with the 17 years experience in the real estate industry, psychologically it would have a deterring, depressing effect on those individuals who might live north of the Hein Park area. With the closure of the street, the creation of another little haven, the fact that these people are in a lower economic social group and wouldn't be able to actually afford housing with the illustrious price tags of those houses in the Hein Park area, it would be, in my opinion, like the individual looking in the pastry store who doesn't have a dime and who can't afford it. And consequently, as a result of such, their moralistic values on their properties could tend to be such that the upkeep would not be nearly so great, and it could have a detrimental effect on the property values in the future.

App. 111-112.

30. Plaintiffs also called Dr. Feit, a clinical assistant professor in the Department of Psychiatry, University of Tennessee Center of Health Sciences, as an expert witness. The District Court summarized Dr. Feit's testimony as follows:

Dr. Marvin Feit, an assistant professor at the University of Tennessee School of Social Work, testified that it was his opinion that closing West Drive would result in negative consequences in the form of hostility towards the people who live in Hein Park, increased vandalism, school harassment, and increased arrests by police. He also was of the opinion that the closure would result in more disgruntled drivers.

Id. at 155.

Over defendants' objection that he was testifying to matters outside his area of expertise, see Tr. 10110, Dr. Feit also testified as follows:

Q Before the luncheon recess, we were at the point of asking Dr. Feit to give his professional opinion as to the negative psychological consequences of the possible closure of West Drive, and how those consequences might affect property values, and I will ask you to answer that question.

A Well, particularly on the north of Jackson, it is very likely that the property values will go down, whereas, in Hein Park, it is most likely that they will rise equal to the rather exclusive area; whereas the area north of Jackson will go down because of the increase in the volume of traffic, which has nowhere to go.

Id. at 118-119. The District Court did not credit this testimony.

31. The Court stated:

The Negro petitioners entered into contracts of sale with willing sellers for the purchase of properties upon which they desired to establish homes. Solely because of their race and color, they are confronted with orders of court divesting their titles in the properties and ordering that the premises be vacated. White sellers, one of whom is a petitioner here, have been enjoined from selling the properties to any Negro or colored person. Under such circumstances, to suggest that the Negro petitioners have been accorded the same rights as white citizens to purchase, hold, and convey real property is to reject the plain meaning of language.

334 U.S. at 34.

32. The Court indicated that Congress had the power, through the passage of § 1982, to eradicate such discrimination:

At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.

392 U.S. at 443.

33. Little Hunting Park, Inc., was a corporation organized to operate recreational facilities for the benefit of residents of Fairfax County, Va. A person holding a membership share who rented his home to another was entitled to assign his share to the lessee. This Court held that both the lessor and the lessee had a cause of action under § 1982 for the corporation's refusal, on racial grounds, to approve such an assignment. The Court held that the membership was part of the lease, and that the right to lease was specifically guaranteed by § 1982:

There has never been any doubt but that Freeman paid part of his $129 monthly rental for the assignment of the membership share in Little Hunting Park. . . . Respondents' actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman's right to "lease."

396 U.S. at 236-237.

34. Any resident of a geographical area within a 3/4-mile radius of the swim club received three preferences: the right to apply for membership without seeking the recommendation of a current member, a preference over nonresidents when applying for a vacancy, and the right to pass to the successor in title of his home the first option on the membership. 410 U.S. at 436. The Court held that these preferences conferred property rights on the owner of a home in the area of the swim club that could not be denied on the basis of the homeowner's race. The Court noted that the right to confer an option on a subsequent purchaser could have an effect on the value of a home. Furthermore:

[T]he automatic waiting list preference given to residents of the favored area may have affected the price paid by the Presses when they bought their home. Thus the purchase price to them, like the rental paid by Freeman in Sullivan, may well reflect benefits dependent on residency in the preference area. For them, however, the right to acquire a home in the area is abridged and diluted.

When an organization links membership benefits to residency in a narrow geographical area, that decision infuses those benefits into the bundle of rights for which an individual pays when buying or leasing within the area. The mandate of 42 U.S.C. § 1982 then operates to guarantee a nonwhite resident, who purchases, leases, or holds this property, the same rights as are enjoyed by a white resident.

Id. at 437.

35. The lower federal courts have also required plaintiffs alleging a violation of § 1982 to demonstrate some impairment of property interests. In Wright v. Salisbury Club, Ltd., 632 F.2d 309 (CA4 1980), the court held that the right to join a country club was a property interest attaching to a home in a subdivision when all residents of the subdivision were encouraged to join the club and residency, as a practical matter, assured approval of an application. See, e.g., Moore v. Townsend, 525 F.2d 482 (CA7 1975) (discriminatory refusal to sell home); Clark v. Universal Builders, Inc., 501 F.2d 324 (CA7) (allegation that blacks forced to accept prices and terms in excess of terms available to whites purchasing comparable housing stated claim under § 1982), cert. denied, 419 U.S. 1070 (1974); Gore v. Turner, 563 F.2d 159 (CA5 1977) (discriminatory refusal to lease apartment); Scott v. Eversole Mortuary, 522 F.2d 1110 (CA9 1975) (alleged discrimination in sale of burial plots); Concerned Tenants Assn. v. Indian Trails Apartments, 496 F.Supp. 522 (ND Ill.1980) (§ 1982 applies to abandonment of services previously provided to white tenants of apartment complex and now denied to black tenants); Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407 (SD Ohio 1968) (discrimination in modes of negotiation for sale of property); Sims v. Order of Commercial Travelers of America, 343 F.Supp. 112 (Mass.1972) (insurance contracts constitute property for purposes of § 1982); Gonzalez v. Southern Methodist University, 536 F.2d 1071 (CA5 1976) (no property interest in law school admission), cert. denied, 430 U.S. 987 (1977).

36. The absence of such restriction distinguishes this case from the Fifth Circuit's decision in Jennings v. Patterson, 488 F.2d 436 (1974). In Jennings, the defendants placed a barricade across a street on the outskirts of Dadeville, Ala., and prohibited landowners on the other side of the barricade from using the street. All but one of the landowners so restricted were black, and the one white landowner was given private access to the closed street. The street closing had the effect of adding 1 1/2 to 2 miles to the trip into town. The court held that the plaintiffs, "because they are black, have been denied the right to hold and enjoy their property on the same basis as white citizens." Id. at 442. Thus, Jennings, unlike this case, involved a severe restriction on the access to property. See supra at 110-112, and nn. 15-18.

37. In Palmer, the Court rejected petitioners' claim that a city's decision to close public swimming pools, rather than desegregate them, violated the Thirteenth Amendment. The Court noted that § 2 of the Amendment gave Congress the power to eradicate "badges of slavery," and that Congress had not prohibited the challenged conduct. 403 U.S. at 227.

38. In addition to § 1982, which we have identified as providing broad protection to property rights, Congress has enacted, pursuant to § 2 of the Thirteenth Amendment, Rev.Stat. § 1977, 42 U.S.C. § 1981 which protects the right of all citizens to enter into and enforce contracts, see Runyon v. McCrary, 427 U.S. 160, 170; cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-441; Rev.Stat. § 1980, 42 U.S.C. § 1985(3) (1976 ed., Supp. III), which protects blacks from conspiracies to deprive them of "the equal protection of the laws, or of equal privileges and immunities under the laws," see Griffin v. Breckenridge, 403 U.S. 88, 104-105; Rev.Stat. § 1990, 42 U.S.C. § 1994 which prohibits peonage, see Pollock v. Williams, 322 U.S. 4, 8; and 18 U.S.C. § 1581 which provides for criminal punishment of those who impose conditions of peonage on any person, see Clyatt v. United States, 197 U.S. 207, 218.

39. The Court continued:

For that clause clothed Congress with power to pass "all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."

Ibid. (Emphasis added.)

* * * *

Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.

392 U.S. at 439-440.

40. In Jones, the Court did hold, of course, that § 2 of the Amendment, which, in terms, merely authorized the enactment of legislation to enforce § 1, did more than authorize legislation to enforce the ban against slavery. See nn. 32, 38, supra. Although the Court expressly overruled Hodges v. United States, 203 U.S. 1, see 392 U.S. at 441-443, n. 78, the Court neither agreed nor disagreed with the first Justice Harlan's statement in dissent in Hodges that, "by its own force, that Amendment destroyed slavery and all its incidents and badges, and established freedom." See 203 U.S. at 27.

41. See supra at 106-108, and nn. 22-27.

42. See nn. 22-25 and accompanying text, supra.

43. As the Court in Village of Belle Terre noted:

The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.


416 U.S. at 9.
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