GILMORE v. CITY OF MONTGOMERY

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Argument of Joseph J. Levin, Jr.

Chief Justice Warren E. Burger: We’ll resume arguments in Number 1517, and Mr. Levin, I think you have about seven minutes remaining.

Mr. Joseph J. Levin, Jr.: Mr. Chief Justice and may it please the Court.

I have only two further points that I’d like to make with respect to this case.

We have provided the Court with an addendum to petitioners’ reply brief which is some 152 pages in length.

Now, all of this evidence found in this addendum was introduced in Judge Johnson’s court in the District Court in the 1970 phase of the Gilmore case.

That’s the phase that dealt with equalization of public recreational facilities in Montgomery.

This present litigation, that is this motion for supplemental relief in the Gilmore case, was initiated less than eight months after the order of the court approving the agreement between the petitioners and the city in that Gilmore case.

These facts are material because they were before Judge Johnson by virtue of his authority to take judicial notice of his own court records, and because the testimony therein would have clearly supported the injunction with respect to private segregated clubs and organizations used of public recreational facilities.

I think the keyword in examining these facts is “shift.”

There was a shift of white recreational programs which were formally in the province solely of the city and the recreation department to private clubs and organizations.

So the city maintained control only over the black recreational programs.

Now Mayor James himself, at the addendum page 19 (a), who was the mayor at the time that all these went on, admitted that the YMCA City Coordination Agreement which we discussed yesterday, and this is a quote, controlled, quote, “Not only the YMCA but also the Boy’s Club and all of the others.”

So, the shift was not only to the segregated YMCA, but in the Addendum 7588 4a you’ll see it was to a white Babe Ruth League, to a white Dixie Youth League parallel to Little League which was a Black League, to the White City Club Softball teams, and to the White Church League Softball teams.

These private segregated clubs are making use of public recreational facilities, extensive use.

The result is a resegregation of recreational facilities in Montgomery.

And even if one ignores the specific finding in Smith versus YMCA, that this was done with the intent to avoid desegregation of public recreational facilities, certainly, the foreseeable result of these activities would’ve been to resegregate those facilities.

I’d like to make one final comment on exclusive use which we discussed with respect to the private segregated school situation yesterday, and that is that it’s not simply some abstract theory that the Fifth Circuit discussed in support of a legal doctrine.

The District Court was specifically instructed to include the Exclusive Use Doctrine in its new injunction on remand, and this it did and that’s found at page 29 (a) of the appendix.

Justice William O. Douglas: I suppose that reflects the judicial practice of this Court following Brown versus Board of Education entering orders, making parks and like public places open to members of the minority races.

Mr. Joseph J. Levin, Jr.: I’m not sure what Your Honor means.

Justice William O. Douglas: Because that you’ve been -- the (Inaudible) you were born, we had cases here involving the park or swimming pool or -- a racial minority couldn’t go to play baseball or walk or have a picnic or a swim and our decrees in those cases as I remember merely prevent the city from barring in from --

Mr. Joseph J. Levin, Jr.: Excluding racial minorities.

Justice William O. Douglas: And I suppose that’s reflected in the Court of Appeals’ approach.

Up to that time, many of the parks in some areas of the country get -- have been turned over exclusively, you know to the dominant race.

Mr. Joseph J. Levin, Jr.: Well, of course that was the same situation that existed in Montgomery in 1959 when the initial Gilmore case was brought.

However, the Fifth Circuit, as best I recall, did not discuss, that may have been an underlying reason but it was not discussed in the opinion, and exclusive use seem to be directed more at ensuring that individual students or individual citizens did not become subjected to an exclusion from public recreational facilities.

But of course, the District Court’s order never -- there’s nothing in the District Court’s order which would’ve done that anyhow and that was why I couldn’t understand the reason for the exclusive use doctrine being incorporated into a -- in the Fifth Circuit’s opinion.

I think that as a matter of law, that it’s erroneous but it is the law in the Fifth Circuit now.

Justice William O. Douglas: Alright, well, I think, historically, it was the practice that this Court in its early decisions on recreational facilities that the Fifth Circuit struck down.

It’s not exclusive.

It’s everybody.

Mr. Joseph J. Levin, Jr.: I agree.

With the exception of private segregate -- when you’re assisting private segregated schools and thereby detracting from the public school system in a peculiar situation that you have in the south and in Montgomery then of course, you enter into another area where you can’t give support.

You can’t enhance the programs of these private segregated academies.

Chief Justice Warren E. Burger: Well, if I understood you correctly yesterday counsel, and perhaps this could be cleared up.

If five or six young men or 11 young men came down individually to play football or volleyball or whatever, they could come in.

But if they came down in the uniforms of the private school playing in connection with an intramural athletic program, they could not use the facility, is that right?

Mr. Joseph J. Levin, Jr.: Not if it were a school-initiated activity.

Individually, there's no difficulty and we’ve never -- certainly, we never make any attempt to keep any citizen out of public recreational facilities.

That’s never been the point, but as a school-initiated program either curriculum or athletic program, it would be prohibited under our theory of the case.

Justice Byron R. White: Counsel, I think that the District Court would’ve barred the exclusive use of public recreation facilities by any private club that had an express discriminatory policy and the Court of Appeals reversed that.

Mr. Joseph J. Levin, Jr.: It would've -- the District Court would have barred the use.

Justice Byron R. White: That is right.

Mr. Joseph J. Levin, Jr.: By a private segregated club and the Fifth Circuit reversed that in full.

Justice Byron R. White: In full and the effect of that is that a private club with an express discriminatory policy may use public recreation facilities?

Mr. Joseph J. Levin, Jr.: Yes, sir.

Justice Byron R. White: Whether exclusive or nonexclusive?

Mr. Joseph J. Levin, Jr.: That’s correct.

Well, I see my time is up, if there are no further questions.

Chief Justice Warren E. Burger: Very well, Mr. Levin.

Mr. Phelps.

Argument of Joseph D. Phelps

Mr. Joseph D. Phelps: Mr. Chief Justice and may it please the Court.

At the outset, I’d like to clarify just a little bit concerning the record in the case and specifically the reply brief that the petitioners filed last week in which they attach depositions or parts or parts of depositions as addendum.

Now, these depositions were taken, as Mr. Levin pointed out, in 1970.

I think may -- it may be well to go in and look at the sequence or chronology of this case.

It was -- original complaint, as pointed out by Mr. Levin, was December 28, 1958 or order posed in the case by the District Court on April 22, 1964.

Then in 1970, on August 12, 1970, the petitioners filed a motion to cite for contempt and for relief.

And in that August 12, 1970 motion they did raise the issue of this resegregation.

They raised the issue of the YMCA case which been decided a month before.

It was pursuant to that hearing that these depositions were taken or it was pursuant to that motion that these depositions were taken.

And that case resulted in the joint filing of a plan for extensive improvement of recreational facilities throughout the city.

Montgomery, as many other communities, we had recreation facilities in one part of town that weren't as good as another.

Some in the black community, one is good as some of the white.

Some in -- some portions of the white, one is good in some portions as the black, but be that as it may, the city, by a joint motion agreed to equalize all facilities.

We had just finished a community center at the time the filing of the petition.

It was completed about that time in a lower income in Negro area.

But be that as it may, we say facilities ought to be as good as we can possibly make them all over town, we agreed to do that and Judge Johnson approved this plan and found that was dispositive of all the issues before the court.

And that was in December of 1971 when the District Court said that the joint plan disposed of all issues before the court, and that appears in the appendix, in the very outset when the chronology of the case is set forth.

Then, far than that and after all those issues were disposed of in September of 1971, the petitioners came along and filed a petition for supplemental relief and that’s the basic -- basis of this present proceeding.

Now, the basis for the supplemental relief was largely, and I think, a fair reading of it discloses that it dealt with private schools and private academies.

Let’s go for a moment and look at the depositions that Mr. Levin attaches to his reply brief, and he includes, and I think very significantly, in this case.

If you look back at those depositions, I skip from page 20 to page 40, in some instances and a whole lot of them are omitted.

Now, we didn’t have enough -- he didn’t designate these as part of his appendix and, of course, we had no opportunity to counter designate so we have had delivered to the Clerk’s Office the entire deposition.

And, we’ve asked the court if they deem these depositions -- if the court deems these depositions appropriate before the court, all of them should certainly be considered.

For example, he talks about segregated Babe Ruth, but on page 15 of a deposition of Mr. McKean and he omitted this from the part he put back in this addendum.

As far as Babe Ruth is specific in here, it says no distinction be made between black and white, absolutely not.

There has never been any distinction in as far as Babe Ruth Leagues, nationally or from the state, no distinction with regard to race.

That’s omitted from what he’s got here, but we have delivered it to the Clerk’s Office.

Mr. McKean said they put out notices at all schools for children who want to play Babe Ruth or boys who want to play Babe Ruth to come and attend.

Dixie Youth, he mentioned that this morning, he mentioned that in his addendum.

He attached some depositions of a Mr. Marshall, but he didn’t attach them all.

And the parts that he didn’t attach say this on page 16, “No restriction against Blacks playing.

All Dixie Youth Leagues invite black boys to come out.

No boy is excluded because of race.”

Leagues formed on a geographic population basis in which black neighborhoods and communities are included on page 26, page 30.

Blacks are in fact, in all Dixie Youth teams.

On page 30, solicitation done for Dixie Youth in black neighborhoods.

Page 32, for the coming year, more blacks were urged and hopefully would come out and in point of fact, they did.

In point of fact, Babe Ruth Leagues, athlete -- athletics in Montgomery, Alabama and throughout the State of Alabama encouraged participation by all people without regard to race or color.

Alabama, as a matter of fact, is proud of the Black athletes.

They play for our colleges throughout the state.

The University of Alabama, for example, has many, many black players on the starting basketball team that played the University of Mississippi the other night.

But be that as it may, the depositions that he attaches here are not complete and these were submitted in August 1970 prior to the plaintiffs and the city agreeing on this joint plan for improvement.

Why were they able to agree on the joint plan for improvement and not go into the issue of “resegregation” in their disposing of all issues?

I submit to you that the depositions that were all filed in the District Court, and were left up high over from what he sends up here, establish why they did that, because they saw that there was no distinction in this Babe Ruth, Little League, or anywhere else.

As far as the City of Montgomery is concerned, he attaches a deposition -- parts of a deposition from a Mr. Boldman.

What he doesn’t attach shows that there is integrative participation in public recreation throughout the spectrum of Montgomery Alabama.

Football, basketball, baseball are integrated.

You have integrated teams playing integrated teams and predominantly white playing predominantly black throughout on page 49, 50, and 56 of Mr. Boldman’s deposition which, significantly, he didn’t attach.

So we think, first, that the issues -- all which --

Justice William J. Brennan: Mr. Phelps, I’m sorry, I don’t know that I follow you.

Are you -- is this an argument that this case has already been settled between the parties?

Mr. Joseph D. Phelps: No, sir.

It -- it's an argument that the depositions that he refers to are establish that the City of Montgomery does not discriminate in recreational activities and programs because of race or color and it is an argument too, sir, that this was before the District Court in 1970 when the District Court approved a joint motion for improvement.

The issue was before the court on this alleged resegregation.

Justice William J. Brennan: Well and yet, the District Court entered the injunction that then was modified or reversed, as you plead, by the Court of Appeals?

Mr. Joseph D. Phelps: Yes sir.

Justice William J. Brennan: Notwithstanding this -- all this material was before the District Court in 1970?

Mr. Joseph D. Phelps: The District Court in the order forming the basis of this appeal, if it please the Court, ever made no finding of resegregation and we are saying to the court that the reason he made no finding of resegregation is because, in point of fact, there was none.

He said this, “When there joint improvement petition was approved.”

Justice William J. Brennan: Well, on what then do the rest of the injunction, Judge Johnson?

Mr. Joseph D. Phelps: I think he rested the injunction on the fact that the pure simple fact that an all-white private school should not be able to use a municipal facility, one and then secondly on the issue of private organizations, without resegregation, private organizations shouldn’t use municipal facilities if they have a racially discriminatory admissions policy.

I don’t think, in the point I’m hoping to make and maybe I’m not doing it too clearly here, is that the issue of resegregation was not part of the District Court’s order.

It was not part of the District Court’s order.

The District Court in the order, they formed the basis of this writ, found that the city made facilities available to all on a non-discriminatory basis.

When he had these depositions before him back in 1970, what did he say when we filed a joint motions for improvement?

The District Court said it further appears that the implementation of said agreement and plans would dispose of all of the issues involved in this litigation and what were those issues?

Those issues included the issue of this alleged --

Justice William J. Brennan: What -- are you suggesting, Mr. Phelps, that in light of that finding that is in itself enough to suggest error in the injunction he granted?

Mr. Joseph D. Phelps: No, sir.

I think that tells us this.

Mr. Levin, and on his brief, reply brief and in this court, contends that there has been type of a resegregation.

He says the District Court is bound to have known that.

We state to you that the District Court knew to the contrary because of the fortunes of the testimony that was already before him.

He knew, to the contrary, resegregation didn’t enter into it as --

Justice William J. Brennan: Well, my problem Mr. Phelps, I’m not following it.

I don’t quite understand, assuming that this is all quite so and that indeed there was no question of resegregation, nevertheless, the District Court entered the injunction?

Mr. Joseph D. Phelps: That’s right, sir.

Justice William J. Brennan: On what basis?

On what was it predicated?

Mr. Joseph D. Phelps: I think it was predicated on the District Court’s feelings and understanding of the law that because a private club had a racially discriminatory admission policy, that private club should not be permitted to use a public recreational facility.

I do not believe that the District Court intended to imply by that, that the city was guilty of any evasion of a prior court order.

As Judge Clark pointed out on Footnote 14 in the Circuit Court opinion, this case does not involve any evasion of the city responsibility to operate recreational facilities on a desegregated basis by the subterfuges converting such facilities to private control.

The District Court had been presented with substance for that finding and even the plaintiffs themselves in the Fifth Circuit, on page 12 of their brief in the Fifth Circuit, took the position in the Fifth Circuit agree to neutrality on behalf of the city.

The fact that the state officials have presented a racially neutral policy and that the actual discrimination has occurred at the hands of private individuals, has never been viewed by the courts as a significant factor in determining the constitutionality of state action.

Mr. Justice Brennan, the purpose of my going into this was that that this matter that we are here today on was not tried before the District Court on an issue of resegregation.

It was not presented to the Circuit Court of Appeals on an issue of resegregation.

We submit to you that it could not have been because such is not defect, and we don’t go out in thin air and just say that without support.

We say it is not the fact because the depositions that were actually before the District Court, as Mr. Levin pointed out earlier, when this issue was raised, they asked more than just improvement in August 1970.

They asked for contempt and they asked that we would be enjoined from allowing these private groups to do it.

The District Court didn’t order that.

He approved the improvement of the facilities without finding, as Mr. -- Judge Clark said, “Any involvement of the city’s responsibility.”

And --

Justice William H. Rehnquist: Mr. Phelps, what’s your position with respect to the Footnote 12 in Judge Clark’s opinion?

The Court of Appeals saying that the District Court made no findings about history, frequency, or effects of public recreational facility used by such non-school affiliated organizations?

The case was tried on stipulated facts.

Nothing was stipulated which would support this prong of the injunction.

Mr. Joseph D. Phelps: I think Judge Clark is correct, sir and I think the posture of the case is -- was it -- as it was presented to the Court of Appeals then the District Court is such, that you really could never do it.

They asked for a broad spectrum on all the effect in every private club of every nature if they got a discriminatory admission clause.

How would you ever be able to go into the history, frequency, or effects of more than 100 and it’s literally hundreds of private organizations that use municipal facilities.

Justice William H. Rehnquist: Well, as I understand Judge Clark, he is saying, you know even if you could have done that or even if you could have done it by a representative sampling, in fact, they didn’t do it in this case, neither you nor your opponents?

Mr. Joseph D. Phelps: It wasn’t done in this case.

It was presented to the District Court on a -- stipulated facts that all of the facilities were open to all on a non-discriminatory basis.

Now, I don’t think that this case is the proper vehicle to go down and have a blanket order in Montgomery, Alabama applying to all types of private clubs regardless of their size, regardless of the purpose, regardless of the frequency or use, a blanket order is what Judge Clark says that the -- was too broad, and I think that that’s well supported by the law.

I think we can’t speculate, we can’t guess about the involvement going on.

I don’t believe that’s what the -- this Court envisioned in Burton and I think, as this Court said in Norwood, you can’t just assume that all of these things are invidious and that’s what they ask in this case as an order, a blanket order saying any club with a discriminatory admission policies can’t use municipal facilities.

We --

Justice Byron R. White: Wouldn’t it -- well, this -- did this order we have here arose from a supplemental petition in a case that had been within the -- filed in the District Court?

Mr. Joseph D. Phelps: Yes.

Justice Byron R. White: And in the original order in 19’59 was that the city was segregating in its recreational policies?

Mr. Joseph D. Phelps: The 1959 order ordered all facilities opened up.

Justice Byron R. White: Yes.

In fact, but if you a -- wouldn’t the best counter is that part of that order, as an effective remedy to say that private clubs couldn’t use if they were discriminatory -- if they had a discriminatory policy could not use city made recreational facilities?

Mr. Joseph D. Phelps: I don’t believe so, Mr. Justice White, and I feel strongly that it would not have been for several reasons.

One, I the -- I don’t believe that the city is under an affirmative duty to require desegregation in private clubs.

And, secondly, these private clubs, as pointed out by the Court of Appeals, are entitled we think now, as well as then in the periodic use of public facilities.

They wouldn’t found here and they simply would --

Justice Byron R. White: Well, I don't -- did Judge Johnson ever articulate any reasons or basis for entering this supplemental injunction that included this prohibition against use by Judge Johnson?

Mr. Joseph D. Phelps: No, sir.

As Judge Clark commented, no findings were made on any evasion of the city’s responsibility.

There weren't any findings that this private clubs were a place -- a public accommodation or any nexus between the private clubs and the municipality.

Justice Thurgood Marshall: Mr. Phelps, you said that returning to resegregation was not the issue before Judge Johnson.

What was the issue?

Mr. Joseph D. Phelps: The issue before Judge Johnson, Mr. Justice Marshall, was whether or not just because a club has admission policy that doesn’t -- it excludes either whites or blacks, whether that in and of itself would preclude that organization from the use of municipal facilities.

Justice Thurgood Marshall: And that’s what is before us now?

Mr. Joseph D. Phelps: As I under it, Mr. Justice Marshall, that is the question before you.

I would like --

Chief Justice Warren E. Burger: Your task here, Mr. Phelps, if I may say so, is to defend that judgment of the Court of Appeals, isn’t it?

Mr. Joseph D. Phelps: Yes, sir.

Chief Justice Warren E. Burger: The modification of Judge Johnson’s order and I think perhaps some of us have been confused as to why this background, or how it related closely at least to the modification made by the Court of Appeals?

Mr. Joseph D. Phelps: The background, sir was necessitated or I thought it was because of this reply brief that they filed last week in which they attached only portions of some depositions, and I thought it appropriate to call to the attention of the Court that there was a great deal more that was brought out even back then that he didn’t see fit to include and that was the purpose of my going into that portion of the background.

Justice Lewis F. Powell: Mr. Phelps, may I come back to this paragraph 3 of Judge Johnson’s order that says that -- that refers to the use of these facilities by any private group, club, or organization.

Is there any definition in the record anywhere of a club or an organization or a group?

Mr. Joseph D. Phelps: No, sir.

I think --

Justice William J. Brennan: Would this embrace a lady’s bridge club?

Mr. Joseph D. Phelps: I think this would -- if Your Honor please would embrace the spectrum from Muslim to Mormon with Lion’s Club and City Club and ladies garden clubs and bridge clubs and just everybody, from a group of 5-500.

It would embrace the Moose Lodge, the Fraters, every conceivable type of private club, political, social, fraternal, charitable, all or everybody as we see it under this order.

Unknown Speaker: But it's a group.

Mr. Joseph D. Phelps: I imagine a group would be two or more people that have some type of club relation between them, and that would be up to the two or more people to determine what that was.

I guess three of us could form a group.

Justice Lewis F. Powell: And there's nothing in Judge Johnson’s order that sheds any light on what he may have meant by using those words?

Mr. Joseph D. Phelps: Not that I can see, if the Court please.

There’s nothing in his order that discusses any type of use or how they go about people and I think Judge Clark, in the Fifth Circuit order, points that out.

Justice William J. Brennan: Well, tell me Mr. Phelps. Getting back to what Mr. Justice White asked you earlier.

Really, to decide this case, doesn’t one have to go back to the 1959 order and it’s underpinning at that time?

Mr. Joseph D. Phelps: I think this, Mr. Justice Brennan, we have to see, of course, the -- there was an order to prohibit segregation in municipal recreational facilities.

Justice William J. Brennan: And that was the 1959 order.

Mr. Joseph D. Phelps: That’s right, sir.

Justice William J. Brennan: And might want to look at this 19, what is it 1970 or 1971 order of Judge Johnson as simply a sequel, a supplement, as a further remedy to address the situation that he found in 1959?

Mr. Joseph D. Phelps: I think so.

I think it has to be looked at in the context though, Mr. Justice Brennan, that no resegregation has been written to in any stage and I think the record is barren of any support of resegregation.

Justice William J. Brennan: Well, what I meant to suggest was and perhaps it doesn’t stand up, but what I meant to suggest was if it were that this later order is simply a supplement to the original order, then the issue of re-segregation is rather irrelevant, isn’t it?

Mr. Joseph D. Phelps: I’m not sure I understand.

Justice William J. Brennan: Well, I don’t see what resegregation -- if this later order is just a further order adding to the 1959 order, in order to give effect to the 1959 order, then this issue of resegregation --

Mr. Joseph D. Phelps: Let me say this.

I don’t feel that this present order is even germane really --

Justice William J. Brennan: I see.

Mr. Joseph D. Phelps: -- to the 1969 order because that opened everything up, and now they have come along and the petitioners ask that it should be closed to a particular group because of the racial admissions policy of that particular group.

Justice Byron R. White: Well, then why did you -- do you concede that the Court of Appeals was correct in affirming Judge Johnson with respect to the school?

Mr. Joseph D. Phelps: Yes, sir.

We make no issue about private schools in this proceeding.

We don’t make that it’s even an issue.

The affirmative duty on the school boards and the municipality to this --

Justice Byron R. White: You agree the city may not make public recreational facilities available to a private school in the manner that they can make it available to a private club?

Mr. Joseph D. Phelps: I think that it would.

Well, let me --

Justice Byron R. White: Isn't that a yes or no question?

Mr. Joseph D. Phelps: I’m not sure, sir.

I’m not sure.

Justice Byron R. White: Well, the Court of Appeals, well assume you say you agree, said that the city may not make its recreational facilities available on an exclusive basis even periodically to a private segregated school, whether it has a racial discriminatory policy or it is just all-white, isn’t it?

Mr. Joseph D. Phelps: Yes.

Justice Byron R. White: That’s what it -- and you have said you agree with that?

Mr. Joseph D. Phelps: We do not contest that.

We think that’s within (Voice Overlap).

Justice Byron R. White: Well, why is the situation different with respect to a private club that has an expressed discriminatory policy?

Mr. Joseph D. Phelps: Because the city, as we understand it, has no affirmative duty to maintain desegregated or --

Justice Byron R. White: Well, it has an affirmative duty because it is a -- has -- it is under an order of the Federal District Court affirmatively to deseg -- to quit discriminating.

It's under an order.

Justice William J. Brennan: That is the 1959 order.

Mr. Joseph D. Phelps: Yes, sir.

Justice Byron R. White: And you're still subject to that order?

Mr. Joseph D. Phelps: Yes, sir, and we say we abide --

Justice Byron R. White: And it may be that generally, absent such an order, you -- the city -- the pure neutrality would be unexceptionable.

But if they are under an affirmative duty, under an order, how do you distinguish between schools and clubs?

Mr. Joseph D. Phelps: Alright.

I read the 1959 order to say open up your recreational facilities.

Open them up without regard to race or color.

Don’t keep any group out --

Justice Thurgood Marshall: And keep them open.

Mr. Joseph D. Phelps: Sir?

Justice Thurgood Marshall: And keep them open.

Mr. Joseph D. Phelps: That’s right, and keep them open, and don’t turn a Negro group away or a White group away.

And, I don’t think that the 1959 order or any court of this -- or any decision of this Court puts a burden on a municipality to delve in to the racial composition to these groups.

We think we are in strict accord with the 1959 order.

Justice Byron R. White: Because you are not running from the order, but you do have to inquire about the school?

Mr. Joseph D. Phelps: Yes, sir.

I think you have to do this.

Justice Byron R. White: Private schools.

Mr. Joseph D. Phelps: I think you have to go into the racial composition there because it -- we have to see that desegregated education is not interfered with and not retarded as this Court pointed out in Norwood versus Harrison.

But I don’t think that government at any level should be placed with responsibility of delving into the membership policies of church clubs, social clubs, and political organizations.

We think that -- we don’t plead that the 1959 order of Watson versus Memphis or any other decision requires us to do that.

Now, I’d like to say this.

Mr. Levin says that Montgomery, Alabama should be treated apart from other parts of the country.

He says that, for some reason, there’s something different about the situation here.

This community and in this area struggled with problems of desegregation and removal of discriminatory practices, and we feel that when we come before this Court and say that we are open, that our facilities are open to all, that’s not an empty promise or just a statement, its documented by the facts as they exist right in Montgomery.

For example, two members of the respondent board that are before this Court today are black leaders in Montgomery.

They were appointed without any court compulsion and they’re there and a part of this case.

A black man is presently the Recreation Director for the entire program.

There had been extensive construction of facilities throughout the City of Montgomery.

Some by virtue of the joint proposal filed in 1970 and 1971, and some go far beyond that.

It’s without dispute and they don’t dispute this in their reply briefs that Montgomery is commencing the construction of a municipal golf course with swimming pools being opened, that will be available to black people and white people and without -- everyone without regard to race or color.

There is desegregated participation in municipally sponsored recreational activities.

As pointed out in the portions of the record that he did not include and also in the appendix itself of the -- on pages 55 and 53.

Seventeen of those 31 football games involved desegregated teams playing desegregated teams.

The August 1st stipulated facts on which this record is before this Court says and states and agrees between the parties that all recreational facilities throughout the City of Montgomery are open to all on an equal basis with all person to other community have an equal access thereto without regard to raise the (Inaudible).

That’s not just an empty statement, if the Court pleases.

It’s supported by the actual facts that are living and existing in Montgomery, Alabama today.

A comparison of the style of this case, from the appendix of how it started out with the parties that are there now, show that there had been a complete change in the Park and Recreation Board.

We’ve got a new mayor.

We’ve got new members and a Biracial Park and Recreation Board there in Montgomery.

The leadership now in this area is coming from biracial groups.

Justice Thurgood Marshall: Doesn’t Judge Johnson live in Montgomery?

Mr. Joseph D. Phelps: Yes, sir.

Justice Thurgood Marshall: Doesn’t he know all of that?

Mr. Joseph D. Phelps: Yes, sir.

I think that he does.

I think, in answer to Mr. Justice Marshall’s comment, that he decided this case prior to this Court’s decision in Irvis.

I think he thought that if a group had a policy of allowing only blacks or only whites in that in that it's in and if itself as a matter of law.

Justice Thurgood Marshall: I agree Montgomery is on the race question.

I mean, Judge Johnson knew that but he still put this over us?

Mr. Joseph D. Phelps: Yes and what I say to the Court is true.

Justice Thurgood Marshall: (Inaudible)

Mr. Joseph D. Phelps: Well, these facts are true, if the Court please.

We’ve got these participants down there and we state to the Court that discrimination in recreation in Montgomery, Alabama, as Mr. Justice Brennan mentioned in the 1969 order, we say we are in strict compliance with it.

Any discrimination on behalf of the City of Montgomery, Alabama has been removed.

We respectfully submit to the Court “root and branch.”

Chief Justice Warren E. Burger: Mr. Phelps, the electronic system is not functioning again today.

You have two minutes left.

There won’t be any light signal.

Mr. Joseph D. Phelps: Mr. Justice Marshall, the District Court in the order that’s before this Court made the finding that the respondents allow all persons and groups to use recreational facilities specifically, and I quote, Judge Johnson.

Justice Thurgood Marshall: Why did he issue the order?

Mr. Joseph D. Phelps: I don’t know, sir.

I think because he understood the law to be that we had to go into the racial composition and see what kind of admissions policies, all the types of --

Justice Thurgood Marshall: Did he say that?

Mr. Joseph D. Phelps: No, sir.

He said this, and I quote, “The City of Montgomery makes football, basketball and baseball facilities available to all on a non-discriminatory basis to private, to any private groups who apply for them on a non-discriminatory basis.”

I agree with you, sir that the District Court does know that we have got two black members on the Board and it comes out and publicized in the press that a black man is heading all of the recreational programs throughout the City of Montgomery.

Now, in conclusion, let me say this.

They want to use the vehicle of this desegregation case to go into all of the admissions policies of various groups regardless of the size, composition, or purpose of the group.

We don’t feel, in this case, on remand or otherwise that this is a proper vehicle to do it.

The head of a group that they brought before the court is the YMCA, and the court found YMCA really wasn’t private because they are all encompassing membership and therefore, and the connection that the city and the white cooperating, an order was entered.

If they have any examples that they feel like the city is using or using the city for subterfuge, those part is -- they are just -- as Mr. Justice Black said in Palmer versus Thompson, ought to be before the court.

We respectfully submit to the Court that the two he mentions today, the Babe Ruth and the Dixie League, are not discriminatory as is evidenced by the portions of the depositions that he didn’t include.

But this case is not the vehicle, we respectfully submit, to go in and to put a municipality on the basis of defending its relation with all types of private groups.

We think that in Burton, the Court envisioned a shifting and analysis of circumstances and with the broad spectrum that they seek here, we say that this case is not the vehicle.

As Mr. Justice -- Chief Justice Burger stated in Norwood versus Harrison, no presumptions flow from mere allegations.

No one can be required, consistent with due process, to prove absence of violation of the law.

If they’ve got a specific, they’ve got judicial retorts, but better than that, better than that if they’ve got something that they feel like is re-segregating, if they will bring it to the attention of the Park and Recreation Board of the City of Montgomery, if they will bring it to the attention of the Biracial Park and Recreation Board, I think it’ll be remedied and I state that it‘ll be remedied without the necessity of judicial intervention.

I think that’s the posture of this case.

That’s the posture of what Montgomery, Alabama is trying to do.

We’ve made progress.

He says in his brief “we applaud it.”

We are proud of the progress that we’ve made.

We think that the facts are undisputed and documented speak for themselves that public recreational, public recreational facilities in Montgomery, Alabama are open to all without regard to race or color and we ask this court to allow us to continue to keep them opened up.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.