O\u27Keefe, James H

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North Dakota Law Review Volume 31 Number 1 Article 9 1955 Constitutional Law - Equal Protection - Segregation in Recreational Facilities Furnished by the State James H. O'Keefe Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation O'Keefe, James H. (1955) "Constitutional Law - Equal Protection - Segregation in Recreational Facilities Furnished by the State," North Dakota Law Review: Vol. 31 : No. 1 , Article 9. Available at: https://commons.und.edu/ndlr/vol31/iss1/9 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. NORTH DAKOTA LAW REVIEWby the state.2 5 But upon compliance with the foregoing, neither the accord-ance of finality to the board's interpretation of the evidence 20 nor to deter-minations of certain questions of law 27 is violative of due process.Here, the fact that appellant in refusing to produce the subpoenaed papers.was acting on advice of competent legal counsel, and that the crime of whichapplicant was convicted involved no moral turpitude 28 is of no material con-sequence. Apellant's contention that the Board of Regents relied on immaterialand prejudicial evidence of the alleged subversive activities of the RefugeeCommittee in determining the extent of disciplinary action taken is likewiseunavailing in that the mere fact of appellant's conviction of a crime was suf-ficient to sustain the Board's determination.29 Therefore, if the board hasnot exceeded its jurisdictional limits and if substantial evidence supports itsfindings, a final determination of the constitutional validity of the empower-ing statute precludes judicial review of the considerations upon which theboard based its decision. 3OThe instant case, in supporting the extension of discretionary powers ofadministrative boards, is in accord with the vast majority of holdings. It issubmitted that the policy thus set forth is desirable as tending not only tofacilitate the accurate and expeditious fulfilment of administrative functions,but also to prevent an even greater crowding of court dockets, the inescapableconsequence of a contrary view.H. M. PIPPINCONSTITUTIONAL LAW *- EQUAL PROTECTION - SEGREGATION IN RECREA-TIONAL FACILITIES FURNISHED BY THE STATE. - Suit was brought againstthe City of Baltimore and the State of Maryland by plaintiffs, adult and minorNegroes, to enjoin segregation of the races at public swimming pools, beachesand bathhouses. Plaintiffs claim that such segregation interferes with rightsguaranteed them by the equal protection clause of the Fourteenth Amend-ment. It was stipulated at a pre-trial conference that the separate facilitiesafforded the Negroes were "physically equal." The court held, that segrega-tion of the races with respect to recreational facilities controlled by the State(lid not deprive the plaintiffs of their constitutional rights as long as the fa-.ilities provided were of a substantially equal nature. Lonesome v. Maxwell,23 F. Supp. 193 (D.Md. 1954).Under the "separate but equal" doctrine, public facilities for Negroes and"''hites may be separate if substantially equal.' It is not required that theiicilities provided the different races be identical but is is sufficient if they25. Smith v. State Board, 140 Iowa 66, 117 N.W. 1116 (1908); See Golsmith v.nttd States Board of Tax Appeals, 270 U.S. 117, 123 (1925).2ti. cf. Jones v. Buffalo Creek Coal Co., 245 U.S. 328 (1917); Central Land Co.Lniidley, 159 U.S. 103 (1895); U.S. v. Gallagher, 183 F.2d 342 (3d Cir. 1949)."27. Reetz v. Michigan, supra note 11.28. Sinclair v. United States, 279 U.S. 263 (1929).9. Sinclair v. United States, supra note 28; Armour Packing Co. v. United States,t, U.S. 56 (1908).30. Gibson v. Medical Examining Board, 141 Conn. 218, 104 A.2d 890 (1954);,to cx rel, Kassabian v. State Board, supra note 14; Schnure v. Board of Regents, 130Y.S. 2d 783 (N.Y. 1954); Davis v. Board of Regents, 283 App. Div. 591, 128 N.Y.S.2d(1954); cf. Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943);v. Powell, 314 U.S. 402 (1941); Bates and Guild Co. v. Payne, 194 U.S. '106I. Plessy v. Ferguson, 163 U.S. 537 (1896).RECENT CASESare equivalent. 2 This doctrine has been controlling in the field of recercation.,In recreation the courts have always demanded strict adherence to standardsof physical equality, not hesitating to strike down any segregation laws whichhave only the appearance of providing equality.' Thus the doctrine has notbecome a pure legal fiction. With typical judicial restraint the whole of thedoctrine has never been closely re-examined, the Supreme Court being con-tent to point out inequalities as particular cases arise. Without specificallyre-examining the doctrine, the Court has ruled that segregation in professionaland graduate schools is a denial of equal facilities.' Aside from the moreobvious inequalities present in segregated education, such factors as restrict-ed class of associates, less renowned faculty, and absence of school tradition inthe Negro school were cited. While comparing the relative merits of theNegro and White law schools the Court said, ". . . the University of TexasLaw School [i.e. the one for Whites] possesses to a far greater degree thosequalities which are incapable of objective measurement but which make forgreatness in a law school." c, It was made clear that while segregation wasstill possible in higher education, the standards demanded were to be increas-ingly exacting. Expressly avoiding a frontal attack on the "separate but equal"doctrine, the Court did indicate the doctrine was capable of being reconsid-ered in the light of contemporary knowledge respccting the purposes of theFourteenth Amendment.7 Shortly thereafter, a case involving segregation inrecreation was remanded by the Supreme Court to be reviewed in light ofthese decisions on graduate and professional schools. s It is apparent thatthe Supreme Court sees some relationship between cases involving segrega-tion in recreation and those involving segregation in higher education.The recent case in which the Supreme Court declared segregation in pub-lic schools violative of the equal protection clause casts a new light uponthe whole "separate but equal" doctrine. 9 Segregation in the field of publiceducation is now per se, unequal and thus separate school facilities can neverbe made legally equal. Is the Court now ready to carry this new pronounce-ment to its logical end and overrule the doctrine in other fields? The courtin the principal ease expresses a belief to the contrary, preferring to give thedecision a narrowly restricted application. Equality in recreational facilitiesin the past has been determined only by a comparison of physical plants. 1l2. State ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Law v. Baltimore, 78 F.Supp. 346 (D. Md. 1948).3. E.g., Beat v. Holcombe, 347 U.S., 974 (1952) (parks); Williams v. Kansas City,205 F.2d 47 (8th Cir. 1953) (swimming pool); Law v. Mayor and City Council ofBaltimore, 78 F. Supp. 346 (D. Md. 1948) (golf); Lopez v. Secombe, 71 F. Supp.769 (S.D. Cal. 1944) (bathhouse).4. Hayes v. Crutcher, 108 F. Supp. 582 (M.D. Tenn. 1952); Durkee v. Murphy, 181Md. 259, 29 A.2d 253 (1942).5. McLaurin v. Oklahoma Board of Regents, 339 U.S. 637 (1950) (Negro grad-uate student required to sit at separate table); Sweatt v. Painter, 339 U.S. 629 (1950)(Texas established separate law school for Negroes with separate buildings and faculty.Held, not equal facilities).6. Sweatt v. Painter, 339 U.S. 629, 634 (1950).7. Id. at 637.8. Rice v. Arnold, 340 U.S. 848 (1950) (Upon remand, the Supreme Court ofFlorida found that the Sweatt and McLaurira cases were not controlling in the field ofsegregated recreation. United States Supreme Court refused certiorari, 342 U.S. 946).9. Brown v. Board of Education, 347 U.S. 483 (1954) (It is interesting to note thatJustice Harlar in his classic dissent in Plessy v. Ferguson, supra note 1, foresaw thatthe "separate but equal" doctrine would never endure the test of time or close inspection.10. See 35 Minn. L. Rev. 399 (1950).NORTH DAKOTA LAW REVIEWIntangible inequalities were factors never before considered. However, therecent decision banning segregation in schools was based primarily on thepsychological damage that segregation engenders in school children, resultingin a deprivation of equal educational opportunity." It is submitted that thisreasoning could apply to segregation in recreation, although perhaps withdiminished force. Certainly the same feeling of inferiority is present in segre-gated play as in segregated education.If it could be assumed that separate recreational facilities may be inherentlyas well as physically equal, it may be further argued that segregation of thiskind is not a proper exercise of the state police power since it accomplishes noreasonable governmental objective. However, the use of the police power inrequiring recreational segregation presents a different and more complexproblem than that involved in segregated education. Prejudice against theNegroes is highest, except for direct sexual relations, in such personal activitiesas bathing, dancing and swimming.1 2 As a result, it would seem a soundgovernmental objective to avoid racial antipathies which otherwise wouldresult from these interracial contacts. Of course a natural aversion to mem-bers of another race furnishes, in itself, no basis for use of the police powerto enforce segregation; there must be a present and pressing public necessityfor the use of it.13 It would seem that segregated recreation is a proper ex-ercise of the police power, at least in areas of marked racial antagonisms.Clearly, segregation is more open to attack under the equal protection clause.The recent education cases by partial rejection of the "separate but equal"doctrine, place the whole structure of segregation in serious constitutionaljeopardy. In line with the traditional policy of deciding constitutional ques-tions only when necessary to resolve the issue at hand, the Supreme Courthas wisely refrained from declaring segregation, per se, unconstitutional.14 Sucha broad declaration would bring down in ruin the traditional southern so-cial structure. The Court, aware of this non-legal reality, has merely placeditself in such a position that it can further diminish the scope of the doctrineupon an occasion of its own choosing, preferably as socio-political conditionsbecome more favorable toward the Negro. Segregation in recreation, as ineducation, tends to deprive the Negro of basically the same intangible bene-fits that all should receive under an equalitarian constitution. Racial integra-tion of public recreational facilities is necessary if the Negro is to advancein his continuing fight for full equality under law.JAMES H. O'KEEFECORPORATIONS - POWER OF CORPORATIONS TO MAKE DONATIONS. - Thestockholders of plaintiff corporation objected to a proposed donation by thecorporation to Princeton University orr the ground that the act was ultravires. The corporation sought a declaratory judgment to determine the statusof its power to make such donations. The court held that a corporation wasgiven such power, both by statutory provisions to that effect and also by the11. Brown v. Board of Education, supra note 9 at page 494.12. Myrdal, An American Dilemma, 60, 61 (1944).13. See Korematsu v. United States, 323 U.S. 214 (1944).14. Rescue Army v. Municipal Court, 331 U.S. 549 (1947); Ohio By. Co. v. Dittney,232 U.S. 576 (1914); Southwestern Oil and Gas Co. v. Texas, 217 U.S. 114 (1910);Eurton v. United States, 196 U.S. 283 (1904).

Constitutional Law - Equal Protection - Segregation in Recreational Facilities Furnished by the State

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Constitutional Law - Equal Protection - Segregation in Recreational Facilities Furnished by the State

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