The Supreme Court: Indecisive Decision

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Time after time in the past decade, the Supreme Court has held that discrimination by private individuals is not forbidden by the U.S. Constitution. But how to distinguish between private acts and public responsibility? Last week the court tried again to deal with the question and stirred up almost as much controversy as it settled.

When U.S. Senator Augustus Octavius Bacon died in 1914, he left 100 acres to his home town of Macon, Ga., as a park "for the sole, perpetual and unending use of the white women, white girls, white boys and white children of Macon." Half a century later, an expanding Constitution upset Bacon's plans. Macon's white citizens realized that the city could no longer administer the park and continue discrimination. Negroes were admitted, only to have the park's trustees sue, claiming Bacon's will had been violated. The city decided to remove itself as trustee of the park. Private trustees were appointed, and the action was approved in the state courts. Then six Macon Negroes carried the argument to the U.S. Supreme Court.

"Plainly Public." There, last week, by a 6-3 vote, the switch of trustees was deemed inadequate to qualify the park as private. If a person left a school or center for the use of one race only, and in no way implicated the state in its supervision, wrote Justice William O. Douglas for the majority, there would be no constitutional trouble. "This park, however, is in a different posture. From the pleadings we assume it was swept, manicured, watered and maintained by the city as a public facility for whites only. We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector."

Clear enough. But Douglas went on to say more: "This conclusion is buttressed by the nature of the service rendered the community by a park. The service rendered even by a private park of this character is municipal in nature." As opposed to golf clubs, social centers, schools and other like organizations, "a park is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain."

"Amorphous & Far-Reaching." To Justice John Harlan, the last part of Douglas' argument was dubious. "This decision is more the product of human impulses, which I fully share, than of solid constitutional thinking," he said in dissent. He argued that the "public function" of privately established schools and privately established parks is clearly similar. If the majority thought that its decision left "unaffected the traditional view that the 14th Amendment does not compel private schools to adapt their admission policies to its requirements," said Harlan, he did not agree. He found it difficult "to avoid the conclusion that this decision opens the door to reversal of these basic constitutional concepts. The example of schools is, I think, sufficient to indicate the pervasive potentialities of this 'public function' theory ... a catch phrase as vague and amorphous as it is far-reaching."