|City of Memphis v. Greene
[ Stevens ]
[ White ]
[ Marshall ]
City of Memphis v. Greene
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join, dissenting.
This case is easier than the majority makes it appear. Petitioner city of Memphis, acting at the behest of white property owners, has closed the main thoroughfare between an all-white enclave and a predominantly Negro area of the city. The stated explanation for the closing is of a sort all [p136] too familiar: "protecting the safety and tranquility of a residential neighborhood" by preventing "undesirable traffic" from entering it. Too often in our Nation's history, statements such as these have been little more than code phrases for racial discrimination. These words may still signify racial discrimination, but apparently not, after today's decision, forbidden discrimination. The majority, purporting to rely on the evidence developed at trial, concludes that the city's stated interests are sufficient to justify erection of the barrier. Because I do not believe that either the Constitution or federal law permits a city to carve out racial enclaves, I dissent.
In order to determine "whether the State ‘in any of its manifestations' has become significantly involved in private discriminations," it is necessary to "‘sif[t] facts and weig[h] circumstances'" so that "‘nonobvious involvement of the State in private conduct [can] be attributed its true significance.'" Reitman v. Mulkey, 387 U.S. 369, 378 (1967), quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961). The key to the majority's conclusion is the view that it takes of the facts, and consequently I will review the relevant parts of the record in some detail.
The majority treats this case as involving nothing more than a dispute over a city's race-neutral decision to place a barrier across a road. My own examination of the record suggests, however, that far more is at stake here than a simple street closing. The picture that emerges from a more careful review of the record is one of a white community, disgruntled over sharing its street with Negroes taking legal measures to keep out the "undesirable traffic," and of a city, heedless of the harm to its Negro citizens, acquiescing in the plan.
I readily accept much of the majority's summary of the circumstances that led to this litigation. I would, however, [p137] begin by emphasizing three critical facts. First, as the District Court found, Hein Park
was developed well before World War II as an exclusive residential neighborhood for white citizens, and these characteristics have been maintained.
App. 148. Second, the area to the north of Hein Park, like the "undesirable traffic" that Hein Park wants to keep out, is predominantly Negro. And third, the closing of West Drive stems entirely from the efforts of residents of Hein Park. Up to this point, the majority and I are in agreement. But we part company over our characterizations of the evidence developed in the course of the trial of this case. At the close of the evidence, the trial court described this as
a situation where an all-white neighborhood is seeking to stop the traffic from an overwhelmingly black neighborhood from coming through their street.
Tr. 323. In the legal and factual context before us, I find that a revealing summary of the case. The majority apparently does not.
According to the majority, the Court of Appeals concluded that respondents were entitled to relief based on four facts that the panel gleaned from the District Court's findings. These facts were:
(1) that the closing would benefit a white neighborhood and adversely affect [Negroes]; (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."
Ante at 109 (footnote omitted). By purportedly examining the evidence supporting each of the four points, the majority is able to conclude that the court below was mistaken, and that the only effect of the closing [p138] of West Drive is "some slight inconvenience to black motorists." Ante at 119. A more detailed study of the record convinces me, to the contrary, that the Court of Appeals was entirely justified in each of its conclusions.
The majority does not seriously dispute the first of the four facts relied on by the Court of Appeals. In fact, it concedes that the trial court "clearly concluded . . . that the adverse impact on blacks was greater than on whites." Ante at 110, n. 15. The majority suggests, however, that this "impact" is limited to the "inconvenience" that will be suffered by drivers who live in the predominantly Negro area north of Hein Park and who will no longer be able to drive through the subdivision. This, says the majority, is because residents of the area north of Hein Park will still be able to get where they are going; they will just have to go a little out of their way, and thus will take a little longer to complete the trip.
This analysis ignores the plain and powerful symbolic message of the "inconvenience." Many places to which residents of the area north of Hein Park would logically drive lie to the south of the subdivision. [n1] Until the closing of West Drive, the most direct route for those who lived on or near Springdale St. was straight down West Drive. Now the Negro drivers are being told in essence: "You must take the long way around because you don't live in this ‘protected' white neighborhood." Negro residents of the area north of Hein Park testified at trial that this is what they thought the city was telling them by closing West Drive. See, e.g., Tr. 22-23, 34 (testimony of N. T. Greene); id. at 64 (testimony of Eleanore Cross). See also id. at 111 (testimony of [p139] Dr. Marvin Feit). Even the District Court, which granted judgment for petitioners, conceded that "[o]bviously, the black people north of [Hein Park] . . . are being told to stay out of the subdivision." Id. at 317. In my judgment, this message constitutes a far greater adverse impact on respondents than the majority would prefer to believe. [n2]
The majority also does not challenge the Sixth Circuit's second finding, that the barrier is being erected at the point of contact of the two communities. Nor could it do so, because the fact is not really in dispute. The Court attempts instead to downplay the significance of this barrier by calling it "a curb that will not impede the passage of municipal vehicles." Ante at 112. But that is beside the point. Respondents did not bring this suit to challenge the exclusion of municipal vehicles from Hein Park. Their goal is to preserve access for their own vehicles. But in fact, they may not even be able to preserve access for their own persons. The city is creating the barrier across West Drive by deeding public property to private landowners. Nothing will prevent the residents of Hein Park from excluding "undesirable" pedestrian as well as vehicular traffic if they so choose. See Tr. 136, 217-219, 317-318. What is clear is that there will be a barrier to traffic that is to be erected precisely at the point where West Drive (and thus, all-white Hein Park) ends and Springdale St. (and the mostly Negro section) begins.
The psychological effect of this barrier is likely to be significant. In his unchallenged expert testimony in the trial court, Dr. Marvin Feit, a professor of psychiatry at the University of Tennessee, predicted that the barrier between West Drive and Springdale St. will reinforce feelings about the city's "favoritism" toward whites and will "serve as a monument to racial hostility." Id. at 103, 104-105. The testimony [p140] of Negro residents and of a real estate agent familiar with the area provides powerful support for this prediction. [n3] As the District Court put it:
[Y]ou are not going to be able to convince those black people out there that they didn't do it because they were black. They are helping a white neighborhood. Now that is a problem that somebody is going to have to live with. . . .
Id. at 325. I cannot subscribe to the majority's apparent view that the city's erection of this "monument to racial hostility" amounts to nothing more than a "slight inconvenience." Thus, unlike the majority, I do not minimize the significance of the barrier itself in determining the harm respondents will suffer from its erection. [n4]
The majority does not attempt to question the third conclusion by the Court of Appeals, that the closing of West Drive is intended as a protection of Hein Park against "undesirable" outside influences. Rather, its disagreement with [p141] the Court of Appeals is over the inference to be drawn. The majority insists that, to the extent that the Court of Appeals found racially discriminatory intent, that finding is not supported by the record. The majority also asserts, ante at 451 U.S. 114"]114, that there is "no evidence" that either the residents of Hein Park or the city officials were motivated by any racial considerations. A proper reading of the record demonstrates, to the contrary, that respondents produced at trial precisely the kind of evidence of intent that we deemed probative in 114, that there is "no evidence" that either the residents of Hein Park or the city officials were motivated by any racial considerations. A proper reading of the record demonstrates, to the contrary, that respondents produced at trial precisely the kind of evidence of intent that we deemed probative in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267-268 (1977). [n5]
The term "undesirable traffic" first entered this litigation through the trial testimony of Sarah Terry. Terry, a West [p142] Drive resident who opposed the closing testified that she was urged to support the barrier by an individual who explained to her that "the traffic on the street was undesirable traffic." Tr. 140. [n6] The majority apparently reads the term "undesirable" as referring to the prospect of having any traffic at all on West Drive. But the common sense understanding of Terry's testimony must be that the word "undesirable" was meant to describe the traffic that was actually using the street, as opposed to any traffic that might use it. Of course, the traffic that was both actually using the street and would be affected by the barrier was predominantly Negro. [n7]
But Terry's testimony is not, as the majority implies, the only Arlington Heights-type evidence produced at trial. The testimony of city planning officials, for example, strongly suggests that the city deviated from its usual procedures in deciding to close West Drive. In particular, despite an unambiguous requirement that applications for street closings be signed by "all" owners of property abutting on the thoroughfare to be closed, the city here permitted this application to go through without the signature or the consent of [p143] Sarah Terry. [n8] Perhaps more important, the city gave no notice to the Negro property owners living north of Hein Park that the Planning omission was considering an application to close West Drive. The Planning Commission held its hearing without participation by any of the affected Negro residents, and it declined to let them examine the file on the West Drive closing. It gave no notice that the City Council would be considering the issue. When respondents found out about it, they sought to state their case. But the Council gave opponents of the proposal only 15 minutes, even though some members objected that that was not enough time. Furthermore, although the majority treats West Drive as just another closing, it is, according to the city official in charge of closings, the only time the city has ever closed a street for traffic control purposes. Tr. 297-298 (testimony of Paul Goldstein). See id. at 313, 321-322 (comments of trial judge). And it cannot be disputed that all parties were aware of the disparate racial impact of the erection of the barrier. [n9] The city of Memphis, moreover, has an [p144] unfortunate but very real history of racial segregation -- a history that has, in the past, led to intercession by this Court. [n10] All these factors represent precisely the kind of evidence that we said in Arlington Heights was relevant to an inquiry into motivation. Regardless of whether this evidence is viewed as conclusive, it can hardly be stated with accuracy that "no evidence" exists. [n11] [p145]
Most important, I believe that the findings of the District Court and the record in this case fully support the Court of Appeals' conclusion that Negro property owners are likely to suffer economic harm as a result of the construction of the barrier. In attempting to demonstrate to the trial court that the closing of West Drive would adversely affect their property, respondents first introduced the testimony of H. C. Moore, a real estate agent with 17 years' experience in the field. Moore began by predicting that, after West Drive was closed, Hein Park would become "more or less a Utopia within the city of Memphis," families who had left the inner city for the suburbs would probably return in order to live there, and the property values in Hein Park "would be enhanced greatly." Tr. 91-92. Moore was then asked what effect the closing would have on the property values in the Springdale area. He responded:
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 --
Id. at 92. At this point, counsel for petitioners interposed an objection, but Moore was eventually permitted to answer the question, and he testified as follows:
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 [p146] 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.
Id. at 95. Surely Moore's uncontroverted expert testimony is evidence of an impairment of property values, an impairment directly traceable to the closing of West Drive. The majority dismisses this aspect of Moore's testimony as "speculation." Ante at 117-118. Yet the majority has no trouble crediting Moore's brief and conclusory testimony that the immediate impact of the closing would be negligible. Unlike the majority, I am unable to dismiss so blithely the balance of his comments.
The majority also gives insufficient weight to the testimony of Dr Feit on this point. Dr. Feit testified, based on his experience as Director of Planning for Allegheny County, Pa., that the shift in traffic patterns as a result of the closing of West Drive would lower the property values for owners living north of Hein Park. He further testified that the closing of West Drive would lead to increased hostility toward Hein Park residents and, ultimately, to increased police harassment of residents of the Springdale area. Tr. 102-104, 118-120. [n12] I would have thought it indisputable that increased police harassment of property owners must be construed as a significant impairment of their property interests. In my view, the combined testimony of Dr. Feit and real estate expert [p147] Moore is sufficient to demonstrate that the closing of West Drive will cause genuine harm to the property rights of the Negro residents of the area north of Hein Park.
In sum, I cannot agree with the majority's' suggestion that
[t]he 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,
ante at 124, and that this requirement amounts to no more than "some slight inconvenience," ante at 119. Indeed, as should be clear from the foregoing, the problem is less the closing of West Drive in particular than the establishment of racially determined districts which the closing effects. I can only agree with the Court of Appeals, which viewed the city's action as nothing more than "one more of the many humiliations which society has historically visited" on Negro citizens. 610 F.2d at 404. In my judgment, respondents provided ample evidence that erection of the challenged barrier will harm them in several significant ways. Respondents are being sent a clear, though sophisticated, message that, because of their race, they are to stay out of the all-white enclave of Hein Park and should instead take the long way around in reaching their destinations to the south. Combined with this message are the prospects of increased police harassment and of a decline in their property values. It is on the basis of these facts, all firmly established by the record, that I evaluate the legal questions presented by this case.
When Congress enacted § 1 of the Civil Rights Act of 1866; 14 Stat. 27, now 42 U.S.C. § 1982 it intended "to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein. . . ." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436 (1968). See Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 435 (1973); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235 (1969). These enumerated rights include the rights [p148] "to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. At bottom, as the majority recognizes, § 1982 creates a right in Negroes "not to have property interests impaired because of their race." Ante at 122. [n13] Our decisions have recognized that the language of the statute is to be broadly construed. We have said that "‘[w]e are not at liberty to seek ingenious analytical instruments,'" to carve exceptions from § 1982. Jones v. Alfred H. Mayer Co., supra, at 437, quoting United States v. Price, 383 U.S. 787, 801 (1966). On the contrary,
[a] narrow construction of the language of 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866. . . .
Sullivan v. Little Hunting Park, Inc., supra, at 237. If the language of the statute is given the broad reading that our cases require, then it is difficult to see how petitioners can avoid its effect.
The majority concludes that the kind of harm that § 1982 was meant to prohibit does not exist in this case, but, as I have stated, a proper reading of the record demonstrates substantial harm to respondents' property rights as a result of the establishment of a barrier at the northern edge of Hein Park. The closing will both burden respondents' ability to enjoy their property and also depress its value, thus falling within the literal language of § 1982. [n14] Even the majority [p149] concedes that "the statute might be violated by official action that depreciated the value of property owned by [Negro] citizens." Ante at 123. I believe that that is precisely what is challenged in this case. [n15]
The legislative history of § 1982 also supports my conclusion that the carving out of racial enclaves within a city is [p150] precisely the kind of injury that the statute was enacted to prevent. In Jones v. Alfred H. Mayer Co., supra, at 422-437, this Court discussed the legislative history of the Civil Rights Act of 1866 in some detail, and there is no need to duplicate all of that discussion here. A few examples should suffice.
When the Civil Rights Act of 1866 was introduced, both its supporters and its opponents alike recognized the revolutionary scope of its intended purpose of eliminating discrimination. As we noted in Jones v. Alfred H. Mayer Co., supra:
That the bill would indeed have so sweeping an effect was seen as its great virtue by its friends, and its great danger by its enemies, but was disputed by none. Opponents of the bill charged that it would not only regulate state laws, but would directly "determine the persons who [would] enjoy . . . property within the States," threatening the ability of white citizens "to determine who [would] be members of [their] communit[ies]. . . ."
392 U.S. at 433 (footnotes omitted; emphasis added). Senator Van Winkle, the Member of Congress quoted by the Court in that passage from Jones, spoke at some length about the "dangers" inherent in the bill that would eventually become § 1982:
I believe that the division of men into separate communities and their living in society and association with their fellows . . . are both divine institutions. . . . We have the right to determine who shall be members of our community, and . . . I do not see where it comes in that we are bound to receive into our community those whose mingling with us might be detrimental to our interests. I do not believe that a superior race is bound to receive among it those of an inferior race. . . .
Cong.Globe, 39th Cong., 1st Sess., 498 (1866). [p151] The Senate, of course, passed the bill in spite of Senator Van Winkle's fears, thus repudiating his view that white residents should enjoy the absolute right to close their communities to Negroes. In enacting § 1982, Congress was "fully aware of the breadth of the measure it had approved." Jones v. Alfred H. Mayer Co., 392 U.S. at 433. Senator Lane, a supporter of the bill, answered the arguments of Senator Van Winkle and others by explaining that the bill would prevent a white person from "invok[ing] the power of local prejudice" against a Negro. Cong.Globe, 39th Cong., 1st Sess., at 603. Senator Trumbull, a sponsor of the legislation, made plain that it was intended to prohibit local discriminatory customs, as well as discriminatory state laws. Id. at 1759. During the House debate over the Civil Rights Act, Representative Cook argued that, without the legislation, slavery might be perpetuated "under other names and in other forms," because "[a]ny combination of men in [a Negro's] neighborhood" might join to oppress him. Id. at 1124. As we recognized in Jones v. Alfred H. Mayer Co., supra, at 427-428, one goal of the Reconstruction Congress in enacting the statute was to provide protection for Negroes when "white citizens . . . combined to drive them out of their communities." See Cong.Globe, 39th Cong., 1st Sess., at 1156, 1835; J. tenBroek, Equal Under Law 181 (rev. ed.1966).
I do not, of course, mean to suggest that the Reconstruction Congress that enacted § 1982 anticipated the precise situation presented by this case. Nor do I wish to imply that the Act prevents government from ever closing a street when the effect is to inflict harm on Negro property owners. But because of our Nation's sad legacy of discrimination and the broad remedial purpose of § 1982, I believe that official actions whose effects fall within its terms ought to be closely scrutinized. When, as here, the decisionmaker takes action with full knowledge of its enormously disproportionate [p152] racial impact, [n16] I believe that § 1982 requires that the government carry a heavy burden in order to justify its action. Absent such a justification, the injured property owners are entitled to relief. There is no need to suggest here just how great the government's burden should be, because the reasons set forth by the city for the closing of West Drive could not, on the facts of this case, survive any but the most minimal scrutiny.
In sustaining the closing of West Drive, the majority points to petitioners' "[p]roper management of the flow of vehicular traffic within a city," and their exercise of the "unquestionably legitimate" "residential interest in comparative tranquility," ante at 126, 127. [n17] Those interests might, as the majority contends, well prove "sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing," ante at 128, but that is not the impact that the city must explain in this case. It must, instead, justify the substantial injury that it has inflicted on Negro citizens solely for the benefit of the white residents of Hein Park. For that purpose, the proffered explanations are insufficient. "[A] city's possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action." Palmer v. Thompson, 403 U.S. 217, 226 (1971). See Watson v. Memphis, 373 U.S. 526, 537 (1963); Cooper v. Aaron, 358 U.S. 1, 16 (1958); Buchanan v. Warley, 245 U.S. 60, 74, 81 (1917). It is simply unrealistic to suggest, as does the Court, that the harm suffered by respondents [p153] has no more than "symbolic significance," ante at 128, and it defies the lessons of history and law to assert that, if the harm is only symbolic, then the federal courts cannot recognize it. Compare Plessy v. Ferguson, 163 U.S. 537, 551 (1896) ("We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it") with Brown v. Board of Education, 347 U.S. 483, 494 (1954) ("To separate them from others . . . solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority"). The message the city is sending to Negro residents north of Hein Park is clear, and I am at a loss to understand why the majority feels so free to ignore it.
Indeed, until today I would have thought that a city's erection of a barrier, at the behest of a historically all-white community, to keep out predominantly Negro traffic would have been among the least of the statute's prohibitions. Certainly I suspect that the Congress that enacted § 1982 would be surprised to learn that it has no application to such a case. Even the few portions of debate that I have cited make clear that a major concern of the statute's supporters was the elimination of the effects of local prejudice on Negro residents. In my view, the evidence before us supports a strong inference that the operation of such prejudice is precisely what has led to the closing of West Drive. And against this record, the government should be required to do far more than it has here to justify an action that so obviously damages and stigmatizes a racially identifiable group of its citizens. [p154]
In short, I conclude that the plain language of § 1982 and its legislative history show that the harm established by a fair reading of this record falls within the prohibition of the statute. Because the Court of Appeals reached the same conclusion, I would affirm its judgment. [n18] [p155]
I end, then, where I began. Given the majority's decision to characterize this case as a mere policy decision on the part of the city of Memphis to close a street for valid municipal reasons, the conclusion that it reaches follows inevitably. But the evidence in this case, combined with a dab of common sense, paints a far different picture from the one emerging from the majority's opinion. In this picture, a group of white citizens has decided to act to keep Negro citizens from traveling through their urban "utopia," and the city has placed its seal of approval on the scheme. It is this action that I believe is forbidden, and it is for that reason that I dissent.
1. As the majority notes, ante at 103, n. 2, Hein Park is bordered on the south by Overton Park, which contains numerous municipally owned outdoor attractions. In fact, the entire central city lies south of Hein Park. Negro residents drive down West Drive for purposes as diverse as going to visit friends, Tr. 36 (testimony of N. T. Greene), and just looking at the scenery, id. at 63 (testimony of Eleanore Cross).
2. As I discuss infra at 145-147, I also conclude that, as a result of the closing, Negro property owners in the area north of Hein Park will suffer substantial impairments in both the enjoyment and value of their property.
3. One Negro resident, N. T. Greene, testified:
[B]ecause we are Black, we cannot drive through a piece of property that is owned collectively by us. This would cause psychological damage to me personally.
Tr. 23. He added that he perceived the barrier as "simply an extension of the insult and humiliation that we have tolerated and experienced too long already." Id. at 39. Another resident, Eleanore Cross, was asked how she would feel if West Drive were closed. She responded: "That would put a fear on me that, if they said, "Closed," that means "Closed," and that would mean put a fear on me." Id. at 64. One of respondents' expert witnesses, real estate agent H. C. Moore, testified that he anticipated similar effects. See infra at 145-146.
4. The majority makes much of the fact that, even after the closing of West Drive, three other streets are available for access into Hein Park. Of these, however, only one, Charles Place, which is west of West Drive and parallel to it, is arguably convenient. But drivers coming down West Drive have to go out of their way to reach Charles Place. There is, moreover, nothing to prevent the white property owners along Charles Place from seeking to close it at the northern end, for they could surely come up with reasons as vague as those set forth for the closing of West Drive itself. In any event, the fact remains that predominantly Negro traffic is being disadvantaged for the exclusive benefit of a community that was designed to be, and still remains, entirely white.
5. In Arlington Heights we explained:
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it "bears more heavily on one race than another" . . . -- may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. . . . But such cases are rare, [and ordinarily] impact alone is not determinative, and the Court must look to other evidence.
The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. . . . Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.
The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. . . .
The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed.
429 U.S. at 266-268 (citations and footnotes omitted).
6. Terry's testimony on this point is set forth in full in the majority opinion, ante at 115-116, n. 26.
7. Emmanuel Goldberger, a white citizen who opposed the closing of West Drive but who died before trial, explained in testimony before the City Council some of the reasons that he considered the closing racially motivated:
Mr. Chairman, there's been enough said about the number of cars, or the speed of the cars going on West Drive. You know and I know that that isn't the issue. . . .
But if you want me to, I will spell it out for you. Mr. Chairman, the answer is sitting right here. The well-to-do white people living in Hein Park do not want black people or the few of us who refuse to run away living north of Jackson to drive on . . . what they think is their street. I phoned a man -- I phoned a man with whom I have been friendly for more than 65 years. His wife answered and would not let me speak to him. So as the rights and wrongs were discussed, she said to me[,] "Leo and I were surprised to see you sitting with that group of niggers." That[,] Mr. Chairman[,] is the issue here.
Ex. 30, p. 1.
8. City officials asserted at trial that there is no requirement that the opinions of affected property owners be solicited before a street is closed, and the District Court found that there had been no substantial departure from usual practices. But the city's own application forms state that they must be signed by "[a]ll owners abutting the thoroughfare to be closed." App. 137. At trial, city officials took the position that this language only refers to individuals owning property abutting at the point of the closing. If that is accurate, then, on the city's theory, any two property owners living across a street from one another could seek to close it, and the city would have no obligation to consult any other residents at all before approving the closing. Put gently, such testimony is contrary to common sense, and not worthy of great deference.
9. During the brief City Council hearing, residents of the area north of Hein Park presented petitions with approximately 1,000 signatures protesting the closing of West Drive, stating: "This Closing symbolizes in unmistakable terms a White neighborhood shutting its door on its adjacent Black and integrated communities." These petitions made express reference to the racial impact. Witnesses before the Council also made reference to the racial character of the neighborhoods involved. See, e.g., Ex. 30, pp. 2-3, 6, 7, 11. The trial judge took judicial notice of the fact that the area to the north of Hein Park was predominantly Negro, and he added:
[I]f the City Council didn't know that that property coming up to Jackson Avenue [northern boundary of Hein Park] was predominently [sic] black, then I have got my doubts about them.
10. See Watson v. Memphis, 373 U.S. 526 (1963).
11. I do not mean by this discussion to imply that a showing of discriminatory motivation is required before a violation of § 1982 may be made out. I merely suggest that, if such a finding is required, the record in this case contains considerable evidence from which it could be made. See n. 14, infra. Nor am I deterred by the trial court's conclusion that no discriminatory motive was involved in the closing of West Drive. The Court of Appeals disagreed with this finding because the panel believed that the District Judge
conceived himself limited in his capability to grant relief by the language in [the first opinion], and that he placed too high a threshold upon the requirements of Section 1982 and, underlying it, the Thirteenth Amendment.
610 F.2d 395, 402. In its first opinion, the panel discussed § 1982 only insofar as it related to the city's willingness to grant a white community a benefit (the closing of a street) that was denied to a Negro community. 535 F.2d 976, 978 (1976). Much of the evidence presented at trial concerned this issue, and some of the comments of the trial judge suggest that he might have thought it the only one to be decided. In fact, § 1982 encompasses considerably more than the granting of a benefit to a white community when the same right is denied to Negroes. For example, a violation of the statute might be made out through a showing that a benefit was granted to a white community in such a manner that it harmed Negro property rights. See infra at 148-149. Thus, if the District Court, in fact, thought that respondents could show a violation of § 1982 only by showing that they had been denied a benefit granted to white residents, it was applying an improper legal standard in considering whether there was discrimination. This likelihood that the District Court indeed applied an improper standard must, in turn, taint the finding that intentional discrimination was absent. Thus, to the extent that the majority reaches its conclusion through reliance on that finding by the District Court, it is relying on a fact not properly found. The appropriate response in this situation should be to instruct the Court of Appeals to remand the case to the District Court for reconsideration of the evidence under the correct legal standard.
12. The District Court expressly credited Dr. Feit's testimony that racial hostility and arrests of Negro residents would increase. App. 155. That court did not discuss Dr. Feit's testimony that property values in the area north of Hein Park would decrease as a result of the closing of West Drive. There is absolutely no record evidence contravening either Dr. Feit's or real estate agent Moore's testimony that property values would fall.
13. Indeed, we have in the past implied that a violation of § 1982 can be made out when the challenged action may have an adverse impact on property values in the future. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 437 (1973). See Wright v. Salisbury Club, Ltd., 632 F.2d 309, 314-316 (CA4 1980).
14. Like the majority, I do not reach the question whether a showing of discriminatory intent is a necessary element of a violation of § 1982. JUSTICE WHITE, in his opinion concurring in the judgment, examines the language of the statute and the legislative history and concludes that a showing of racially discriminatory purpose is indeed required. I do not believe that his arguments support his conclusion. The language of the statute simply declares that
[a]ll 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 plain language does not suggest an intent requirement, because it does not condition a violation of § 1982 on the motivation of any person or persons. There is nothing in the statute to suggest, for example, that a right denied through sheer insensitivity is entitled to less protection than one denied through racial animus. I agree with JUSTICE WHITE that the legislative history suggests a congressional intent to strike down both state laws that, by their terms, served to oppress the former slaves and those that were enforced with that goal in mind. But, particularly in light of the broad statutory language, I find no basis for concluding that that is all that Congress meant to do. Even if JUSTICE WHITE is correct, and racially discriminatory motivation must be demonstrated under § 1982, it is enough for me if the evidence raises an inference of intent and the government fails to rebut it with a sufficiently strong explanation. And on that premise, I would certainly hold that intent must be inferred when, as here, municipal officials were acting on behalf of what they knew to be, and what had always been, an all-white community were acting not in accordance with any municipal plan, but instead for the sole benefit of that white community, were aware in the course of their proceedings that a predominantly Negro community would be injured by their official action, deviated significantly from their usual procedures, and gave the Negro community no meaningful opportunity to state its case. I do not believe that this inference is successfully rebutted on the facts of this case. See infra at 152-153.
15. The majority implies, see ante at 114, n. 23, that there is analytical significance in the fact that although the defendants are the city and its officials, respondents introduced evidence as to the motivations of the private citizens who petitioned the city to close West Drive. But it is beyond dispute that § 1982 has application to official government action that merely ratifies private discriminatory conduct. See Hurd v. Hodge, 334 U.S. 24, 31-34 (1948). See also Cong.Globe, 39th Cong., 1st Sess., 1833 (1866) (remarks of Rep. Lawrence) (statute reaches State's failure to protect rights, as well as its actions that infringe them).
16. See n. 9, supra.
17. I do not understand the majority to dispute the conclusion by the Court of Appeals that
[t]he 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.
610 F.2d at 404. That statement would, in fact, be difficult to dispute in light of the testimony by a city official that a street closing for traffic control purposes is, in fact, unprecedented. See Tr. 297-298 (testimony of Paul Goldstein). Of course, the result that I reach does not turn on the accuracy of the statement by the Court of Appeals.
18. In light of my disposition of the statutory question, I would ordinarily find it unnecessary to consider the merits of the Thirteenth Amendment argument. But I cannot let the Court's discussion of the constitutional claim pass without comment. The majority reserves until another case the issue whether § 1 of the Amendment, by its own force, bans "badges and incidents of slavery" because, in its view,
a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not . . . be fairly characterized as a badge or incident of slavery.
Ante at 126. For reasons that I have already indicated, I believe that the degree of harm to respondents from the erection of a barrier at the end of West Drive far exceeds the minimal inconvenience found by the majority. Assuming with the majority that the Amendment would, even without implementing legislation, ban more than the mere practice of slavery, I would conclude that official action causing harm of the magnitude suffered here plainly qualifies as a "badge or incident" of slavery, at least as those terms were understood by the Reconstruction Congress.
When the Thirteenth Amendment was being debated, supporters and opponents alike acknowledged that it would have the effect of striking down racial discrimination in a wide variety of areas. See, e.g., Cong.Globe, 38th Cong., 1st Sess., 1465, 2944, 2962, 2979, 2982-2983, 2987 (1865). See generally J. tenBroek, Equal Under Law 162-168 (rev. ed.1965). In enacting § 1 of the Civil Rights Act of 1866, the provision that produced both § 1981 and § 1982, see Runyon v. McCrary, 427 U.S. 160, 168, n. 8, 170 (1976), Congress did not believe it was doing more than spelling out the guarantees implicit in § 1 of the Thirteenth Amendment. See Cong.Globe, 39th Cong., 1st Sess., 503-504 (1866) (remarks of Sen. Howard); id. at 602-603 (remarks of Sen. Lane); R. Kluger, Simple Justice 47, 627-629 (1975). Because that Congress included so many of those who had a hand in drafting the Thirteenth Amendment, cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439-440 (1968), I would give its judgment considerable deference. Consequently, I would hold that, because the closing of West Drive is forbidden, on these facts, by § 1982, it is, a fortiori, a violation of the Thirteenth Amendment as well. Of course, this should not be taken as an argument that Congress cannot, under § 2 of the Thirteenth Amendment, enact legislation forbidding more than would § 1 of the Amendment, standing alone. I simply suggest that Congress did not do so when it enacted § 1 of the Civil Rights Act of 1866.Thirteenth Amendment. I would, however, insist that the government carry a heavy burden of justification before I would sustain against Thirteenth Amendment challenge conduct as egregious as erection of a barrier to prevent predominantly Negro traffic from entering a historically all-white neighborhood. For reasons that I have already stated, I do not believe that the city has discharged that burden in this case, and, for that reason, I would hold that the erection of the barrier at the end of West Drive amounts to a badge or incident of slavery forbidden by the Thirteenth Amendment.