Watson v. City of Memphis

PETITIONER:Watson
RESPONDENT:City of Memphis
LOCATION:Clauson’s Inn

DOCKET NO.: 424
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 373 US 526 (1963)
ARGUED: Apr 17, 1963 / Apr 18, 1963
DECIDED: May 27, 1963

Facts of the case

Question

  • Oral Argument – April 17, 1963
  • Audio Transcription for Oral Argument – April 17, 1963 in Watson v. City of Memphis

    Audio Transcription for Oral Argument – April 18, 1963 in Watson v. City of Memphis

    Earl Warren:

    I. Watson Jr., et al., petitioners versus City of Memphis.

    Mr. Prewitt you may continue your argument.

    Thomas R. Prewitt:

    Mr. Chief Justice may it please the Court.

    Yesterday Your Honor I believe you asked me to check in the [Inaudible] of the number of colored children that are now attending desegregated schools in the City of Memphis and I have that information.

    Earl Warren:

    Thank you.

    Thomas R. Prewitt:

    There are presently 63 colored school children attending desegregated schools in the City of Memphis.

    The program of desegregation was commenced in the Fall of 1961 with the first grade and in the Fall of 1962 the second and third grades were desegregated.

    These 63 school children do not include an undetermined number of colored children who were assigned to the desegregated schools, but who asked to be reassigned to all colored schools.

    I don’t have that number, may it please the Court.

    I might state this with respect to the schools because it does have considerable relevancy here that on May the 22nd next there is scheduled a hearing in the District Court at Memphis.

    Both the Board of Education and the NAACP have presented proposed plans for further integration of the public schools.

    Under the NAACP plan, the first six grades would be integrated this Fall and seven, eight, and nine in the Fall of 1964 and the remaining grades in the Fall of 1965.

    Under the Board of Education plan, the first four grades would be integrated this year and then one grade a year here after until the program is terminated.

    So that is the situation with respect to schools.

    Earl Warren:

    Thank you very much.

    Thomas R. Prewitt:

    Now with respect to the parochial school and that has some relevance because the Park Commission operates playgrounds on parochial school property.

    Bishop Adrian of Nashville has recently announced that the parochial schools in Tennessee would commence their program of desegregation this Fall on a gradual basis.

    Now, up to address myself to the problem at hand, the recreational facilities of the City of Memphis.

    The undisputed proof shows these facts, may it please the Court that 56 of the 117 supervised playgrounds, which accommodate 100,000 children in supervised play, are on school and Church property.

    The Park Commission in its thinking and in evolving its plan with respect to complying with the Brown case felt that it would not be wise to desegregate the playgrounds on the Church properties and the school properties until those institutions themselves were desegregated.

    It was thought that that would not be in the best interest of the people as a whole.

    Yes sir?

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    I beg your pardon.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    No sir, if Your Honor please.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    Not all of it, if Your Honor please, some of it.

    For instance basketball takes place in the school gymnasiums.

    Of course baseball would take place on the school playgrounds.

    Thomas R. Prewitt:

    Most of it would take place after school hours, but much of the supervised play would take place during the school terms.

    A great portion of it of course takes place in the summer time.

    And I would judge that the greater percentage of the supervised play does take place in the summer time when the schools are not in session.

    But with respect to basketball and baseball and other activities the recreational activity does take place during the school time.

    Now, the proof also shows this, may it please the Court, with respect to all of the 117 playgrounds that if the relief sought here is granted and all of the playgrounds are desegregated at the same time that the supervisory staff that now supervises the play of these 100,000 children will not be adequate and that more supervisors will have to be trained and employed to give proper supervision and proper protection to these children during this transition period, it’s contemplated.

    The necessary result of that, may it please the Court, would be that a large number of children would not receive the benefits of supervised play that they are now receiving and the Park Commission feels that that is tremendously important thing for all of the people of Memphis, especially to keep the children off the streets during the summer vacation period.

    And I don’t believe that I need any citation of authority otherwise to demonstrate how important that is to any city.

    This playground system of Memphis, we feel, is one of the finest in the country and we feel that it has been developed over a period of years to the point where it is one of the most important facets of our community life.

    We recognize, may it please the Court that we must comply with the established law that all of the playgrounds must be open to all children colored and white, but we feel that additional time yet is necessary, recognizing that it has been eight years since the Brown decision.

    But we feel that experience has shown that where this program can be developed on a gradual basis without an injunction hanging over the heads of our people and authority that we can develop it in such a way that it will not create confusion or disarray and will give protection and supervision to all of these children.

    The Park Commission certainly from the concurrent finding of both Lower Courts has acted in unquestioned good faith in trying to carry out what we felt was the law as announced in the second Brown decision.

    But we feel that some additional time is necessary, bearing in the mind that the only question before this Court is whether or not the Lower Courts had any discretion save to issue an immediate injunction.

    The adequacy of the plan that I filed on yesterday, the adequacy of any plan has never been presented to the District Court or to the Court of Appeals.

    This appeal was taken before we had an opportunity to allow the District Judge to adjudicate with respect to the full plan.

    And as I stated yesterday, we don’t say that this plan that we’ve got enough is the magic answer or that it will be adequate or that it will be sufficient.

    It is the best plan that we’ve been able to devise and we feel that the District Judge should have an opportunity to adjudicate with respect to that plan and if it is inadequate to accelerate it or to take what other steps might be necessary, that’s our position.

    If they —

    Earl Warren:

    Mr. Prewitt may I ask you this.

    I understood Mrs. Motley to say that practically all or at least a great many of the parts that you have desegregated were merely little squares or little triangles that, where they had a statue and a few — in a few chair, few seats that people could sit in.

    Is that the fact then and if so how many general playgrounds have you in these last nine years desegregated for the use of all people?

    Thomas R. Prewitt:

    If Your Honor please in answer to your question, I would take issue with counsel on her statement.

    I can’t tell you how many of the 130 I believe parks and 117 playgrounds have been desegregated.

    I will try to give you now some of the facilities that have been desegregated.

    Six of the seven public golf courses, Crump Stadium, which was alluded to, has been desegregated.

    The public zoo, the fairground, the lake boat dock and several, I’m not prepared to say exactly how many, several playgrounds have already been desegregated.

    Several were desegregated last year and the program calls for additional desegregation this year.

    But many, many parks and many, many facilities have been desegregated under the plan that’s already been evolved.

    And the Park Commission is complying with — yes sir, counsel reminds me that all the tennis courts have been desegregated.

    And I am safe in making this statement that there is no activity sponsored by the Park Commission which is not now open to both races.

    There is no as distinguished from a particular playground at a particular place.

    Thomas R. Prewitt:

    There are many playgrounds which are still segregated.

    Most of them are neighborhood playgrounds, but there is no activity now except the Pink Palace Museum and it stands in a different light and I don’t believe that it is going to be a significant problem.

    In fact I think that it is very minor when considered in the light of the whole program.

    William J. Brennan, Jr.:

    Well, Mr. Prewitt are you telling us that the program, this ten year program is in fact being put into effect, is that it?

    Thomas R. Prewitt:

    Yes, it is being —

    William J. Brennan, Jr.:

    I see.

    Now what you are doing is according to that program and the timetable into that program?

    Thomas R. Prewitt:

    No sir it’s been accelerated, in several different instances.

    For instance I believe Winchester Park on the program was to be desegregated in 1965 and that has already been desegregated.

    It was desegregated in 1962.

    There are other instances of that type where the program has been accelerated and it will be accelerated, but we feel that it is difficult to plan ahead on a program as vast as this.

    We recognize the problem and as time goes on and the Park Commission we believe will be able to make judgments as situations come up and accelerate the program in the exercise of its discretion.

    Tom C. Clark:

    The time element is the same in the schools as it is in the recreational area desegregation?

    Thomas R. Prewitt:

    If Your Honor please, as I stated earlier in response to the Chief Justice’s question yesterday, the Board of Education proposes to desegregate the fourth grade this year and then one grade each year thereafter.

    The plan submitted by the NAACP would accomplish complete desegregation of the schools by 1965.

    The District Judge has not yet ruled with respect to the two plans concerning the school system.

    Tom C. Clark:

    And the schools would be desegregated by 1965?

    Thomas R. Prewitt:

    If the plan submitted by the end of —

    Tom C. Clark:

    [Inaudible]

    Thomas R. Prewitt:

    If the plan that we have already presented to the public press is the final plan, but the Trial Court has never had an opportunity to even consider that plan.

    Earl Warren:

    Well Mr. Prewitt, has the City of Memphis opened up any new parks in recent years?

    Thomas R. Prewitt:

    Yes sir.

    Earl Warren:

    Have all of those been opened up on the non-segregated basis?

    Thomas R. Prewitt:

    You mean parks that were formally undeveloped, is that what you…

    Earl Warren:

    I don’t know.

    I said have they opened any any new parks?

    I don’t know what undeveloped means, but have they opened up any new parks for use of the people of Memphis during recent years, and if so have those that they have opened up been desegregated or have they been segregated?

    Thomas R. Prewitt:

    I think I can answer that yes, if Your Honor please, that they have opened up new parks, which are now desegregated.

    Earl Warren:

    Have they opened any of that have remained segregated?

    Thomas R. Prewitt:

    Yes sir.

    Earl Warren:

    And why?

    If you are looking for a plan to remedy this situation and to give these people their rights, why do you buy new parks and segregate them?

    Thomas R. Prewitt:

    If Your Honor please, the only answer I can give to that is that the new parks as well as the old parks have to be considered as part of the overall system and the plan for desegregation takes into account all of the system, including new parks as well as the old parks and the program that we are trying to evolve will result of course in desegregation of all the parks.

    In all candor, may it please the Court, I can add very little or detract from the opinion of the Court of Appeals.

    I feel that the Court of Appeals has analyzed the evidence presented below, has concurred in the findings of the fact of the Trial Court, and has stated our position far better than I can state it.

    We feel that since both Lower Courts found that the Park Commission acted in unquestioned good faith and that more time was necessary in order to accomplish an orderly desegregation of this vast recreational system, that the trial Judge was not in error in refusing to issue an injunction, which would order massive desegregation of every recreational facility in the City of Memphis.

    Potter Stewart:

    Mr. Prewitt, you’ve emphasized several times that the — in your view the only question before this Court now is whether any delay at all is permissible in — with respect to park and playground system as contracted — as contrasted with a school system and that no particular plan is before us.

    Is that what I understand?

    Thomas R. Prewitt:

    Yes.

    Potter Stewart:

    I’ve been looking through the record and I can’t seem to find the judgment of the District Court.

    The judgment of the Court of Appeals is one affirming the District Court, but there is lots of — there are some conclusion in fact in law with no signature by the Judge on it, were those proposed and not —

    Thomas R. Prewitt:

    No sir, they were entered.

    If the record reflects only a copy then this record is in error.

    The findings of facts of the Lower Court are in the record at page 91.

    Potter Stewart:

    91 to 101.

    Thomas R. Prewitt:

    Yes, sir.

    William J. Brennan, Jr.:

    That’s 102.

    That doesn’t seem to be signed or approved, is that the District Court judgment?

    Thomas R. Prewitt:

    That is the fault of the printer, may it please the Court and not the fault of the District Court.

    William J. Brennan, Jr.:

    But is this the —

    Thomas R. Prewitt:

    That is the judgment.

    Now I do not know why they printed a record doesn’t have a signed copy, but it is the judgment of the Court and I have learned today that the typewritten record is here, so that I’m sure it will reflect the signature of the judge.

    Hugo L. Black:

    Who was the Judge?

    Thomas R. Prewitt:

    Marion Boyd, may it please the Court.

    Arthur J. Goldberg:

    [Inaudible]

    Potter Stewart:

    As I am glancing over this record at page 102 and 103, it appears that the — that Judge Boyd approved a specific plan and a specific timetable, didn’t he?

    Thomas R. Prewitt:

    Judge Boyd approved a partial plan, may it please the Court, with respect to the golf courses, fairgrounds, amusement park and a few other facilities that are specifically listed.

    He further ordered the Park Commission to submit a complete plan within six months and before that six-month period expired the appeal was taken.

    So that he has never had an opportunity to rule on the adequacy of the complete plan.

    Potter Stewart:

    So his basic judgment and as you submitted it was simply denying an injunction, a prayer for injunction, which would have required the immediate total desegregation of all the facilities.

    Potter Stewart:

    And it’s your point that if we agree with you, that there is at least possibly some room for some delay, this would not imply the approval of any specific plan in Memphis or anywhere else, is that right?

    Thomas R. Prewitt:

    Certainly not, because no plan has ever been presented to the Court other than the partial plan with respect to the golf courses and fairgrounds and amusement parks, and the tennis courts, yes.

    John M. Harlan II:

    [Inaudible] the Court gives judgment — the district court will then be called on to approve or disapprove or modify the plan that you’ve left here?

    Thomas R. Prewitt:

    That’s correct.

    John M. Harlan II:

    And they of course should be subject to further reviews as to whether he abused this discretion or not in what he did?

    Thomas R. Prewitt:

    That’s correct Your Honor please if the plan that we’ve submitted is inadequate then the court necessarily will do something about it.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    If Your Honor please, I believe that if the Board of Education plan is approved it will — the time they’ll need for desegregation will be about the same time, yes sir.

    Well both programs were commenced at about the same time.

    Your Honor is correct, that if the NAACP Plan is approved then there — it would be on earlier date and I think that might very well have a considerable bearing on what the trial court should do with respect to the Park system.

    It’s hard to separate the two, they are so enmeshed.

    They even — the Park Commission and the Board of Education even operate out of the same building now.

    It’s very difficult to consider the two things separately because actually we are talking about the same children because they have the same children, the same children go to school to play on the playgrounds, and the two systems–

    Earl Warren:

    The children must go to school they need not go to the playground.

    Thomas R. Prewitt:

    That’s correct Your Honor please and we feel that that strengthens our position, because the participation on the playgrounds is voluntary and we certainly don’t want to create a situation which would discourage that voluntary participation.

    We want to make the playground system attractive to the children so that they will avail themselves of the benefits of it.

    Earl Warren:

    Then you are continuing an existence the feeling of the community that there should be segregation?

    Thomas R. Prewitt:

    To some extent yes, I think that’s true if Your Honor please.

    Earl Warren:

    At least in the Brown case that that wasn’t a justifiable reason?

    Thomas R. Prewitt:

    Yes sir, but may it please the Court, the opinion of the Court of Appeals is not based on that fact.

    The opinion of the Court of Appeals is based upon the fact that if the release sought here is granted many more supervisors will be necessary to supervise these 100,000 children and that many children that now enjoy the benefits of supervised play will be deprived of that.

    That was the basis, not that the community feeling was against it.

    Of course I would be naïve even if I stood in front of this Court and said that the white people of Memphis were all for integration, but the opinion of the Court of Appeals did not take into account any hostility in rendering its opinion.

    It was based upon other factors that we feel are legitimate factors under the Brown decision.

    John M. Harlan II:

    What other Courts of Appeals [Inaudible]

    Thomas R. Prewitt:

    If Your Honor please the Fifth Circuit Court of Appeals with respect to Birmingham or Montgomery I’m not sure, ruled, Gilmore against Montgomery, ruled that the second Brown decision applied to public parks and in the City of Charleston case, the Court of Appeals for the Fourth Circuit ruled not that the Brown case applied, but that delay would be authorized in if there was a proof to justify.

    In the South Carolina case, there was only one facility involved, the public golf course.

    They weren’t considering a system, an entire recreational system. Those are the only two cases that I know about that cover this specific question.

    Byron R. White:

    Mr. Prewitt there will still be the same 100,000 children to be serviced whether the parks are segregated or desegregated and how is that that they will take more supervisors in the event of desegregation, in a particular park?

    Just take and pick one of the parks you are familiar with and give us an example.

    Thomas R. Prewitt:

    All right if Your Honor please let’s take a park that accommodates 800 children, that would be an average, because there are 100,000 children to be — that are involved in.

    Byron R. White:

    We’ll take a specific park with which you are familiar.

    You don’t need to deal with averages and figures.

    You know of a park there, just speak of one that is now segregated and tell us about how —

    Thomas R. Prewitt:

    I am told that the average park requires two to four supervisors to supervise the play.

    Until last year there were no integrated playground situations.

    Where that situation has changed and instead of having children of all of one race, but are mixed for the first time the feeling of the people in-charge, the Superintendent of Recreation and the Director of Parks based upon trouble already experienced on the public buses and at the zoo where additional protection was needed to the public, based upon actual experience, they testified that more supervisors than two to four in the park in question would be needed to protect those 800 children.

    Byron R. White:

    I know that’s the testimony, but why are they needed.

    I know that’s somebody’s opinion, but what are the — now you said a moment ago that some parks, some playground that was schedule to be desegregated in 1965 was desegregated in 1962, which park was that whether –?

    Thomas R. Prewitt:

    That was Winchester and I believe the basic reason for that was that the character of the neighborhood had changed more rapidly than the —

    Byron R. White:

    Well, did you need more supervisors in that park when –?

    Thomas R. Prewitt:

    No, because the character of the neighborhood was such that once it was open to both races, only the colored children participated.

    Byron R. White:

    Well was — what is your, is that just — do we have the facts in the record as to why more supervisors would be needed or just someone’s opinion would be prevalent?

    Thomas R. Prewitt:

    You have the facts that where other facilities have been desegregated Mr. Justice White, such as the public buses and the public Zoo that additional protection was needed.

    Byron R. White:

    Well — are you saying that if you only desegregate a park and you have a mixture of the races, there is going to be just more fights or more or what?

    Thomas R. Prewitt:

    Yes sir and I don’t think there is a slightest doubt about it.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    Yes.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    Very little trouble with the tennis courts, very little trouble, may it please the Court, with the golf courses, very little trouble actually at the Zoo, but in dealing with the playgrounds such vast numbers of children, it’s the feeling of the people in-charge who lived in Memphis all of their life that, that is a much more sensitive area and it is an area in which we need more additional time.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    I mentioned, may it please the Court, the Zoo and the public transportation system as two examples of where there was confusion and turmoil.

    Arthur J. Goldberg:

    [Inaudible]

    Thomas R. Prewitt:

    There have been, as I mentioned the playground to Mr. Justice White, but because of the character of the neighborhood, the participation by the white children ceased upon the integration, but there are many neighborhoods where that situation will be not be true.

    Byron R. White:

    Will is it — are there any other public playgrounds that are desegregated other than the Winchester?

    Thomas R. Prewitt:

    There are three, I believe Your Honor please, there are either three that are already desegregated or that will be that —

    Byron R. White:

    Well, how about that the ones that are already segregated – desegregated? You say there are three of those or only – there are only one?

    Thomas R. Prewitt:

    The only one I can think of is that has already been desegregated is Winchester.

    Thomas R. Prewitt:

    Two more are on — are planned immediately.

    Byron R. White:

    Well, do you know what — are these in the neighborhoods similar to those of the Winchester?

    Thomas R. Prewitt:

    Yes, sir.

    Byron R. White:

    So that you would anticipate that there will be colored children in the end result there?

    Thomas R. Prewitt:

    Probably if Your Honor please.

    Byron R. White:

    So you have no plans in any neighborhood this time to desegregate a park where there actually in a — were after the so called desegregation there would be both races on the playground.

    Thomas R. Prewitt:

    We feel that those should be desegregated after such parks as Winchester.

    That the plan contemplates that park such as Winchester should be first desegregated and that other parks where there will be more —

    Byron R. White:

    Have you submitted your plan yet in the District Court or not?

    Thomas R. Prewitt:

    We submitted it to the Court, but the Court would not consider it.

    Byron R. White:

    Well, in that plan that you submitted, when is the first — when will be the first park or the first playground that is — when is that scheduled for desegregation where you know there will be a mixture of the races after the so called desegregation, what year?

    Thomas R. Prewitt:

    All I can say Your Honor please, the Winchester playground has been desegregated.

    Byron R. White:

    Well I know, but you know that — and why the other two you’ve got plans, you anticipated only colored children will be playing in that park?

    Thomas R. Prewitt:

    I cannot since it’s a voluntary program, may it please the Court.

    Byron R. White:

    I know, but you said a while ago there are other neighborhoods where this will not take place after desegregation and that there actually will be a mixture.

    Thomas R. Prewitt:

    I don’t understand exactly what the Court —

    Byron R. White:

    Well, I know but the — you’ve — if the only park that have been desegregated or that are going to be desegregated are the ones in the Winchester type neighborhood, there going to be required no further supervisors because there only be colored children there?

    Thomas R. Prewitt:

    Your Honor please, our plan contemplates desegregation of all 117 —

    Byron R. White:

    Yeah, I know it, but I want to — I would like to when is the year — in what year do you plan desegregation of the park where in a neighborhood not like the Winchester Park?

    Thomas R. Prewitt:

    If our plan that has been submitted to the Court, but has not been filed but which has been published is adopted, the playground will desegregated on a staggered basis until 1971 when at which time all of the playgrounds will be desegregated.

    I cannot answer Your Honor’s question that in 1965 our playground number 25 will be desegregated and in that area, the population is 50-50.

    I just don’t know, but it’s a gradual program over a period of the next seven or eight years until 1971, taking around six or seven playgrounds a year or whatever is required.

    We haven’t attempted to gerrymander this proposition, but we have — the Park Commission has attempted to desegregate areas which will be less troublesome first.

    Earl Warren:

    Well, if you desegregate only those parks that because of the type of the neighborhood will only be used by Negroes, have you desegregated at all?

    Thomas R. Prewitt:

    Well, as I say, it’s a voluntary participation, may it please the Court.

    Earl Warren:

    Well, I was asking you a while back about voluntary participation in the park is distinguished from attendance of public schools and you said it was because the people of Memphis weren’t ready to accept that and use the park in that spirit, that cause them to — cause your authorities to do what they are doing on this basis.

    Thomas R. Prewitt:

    Well, if Your Honor please, my answer – I will try to answer the Court’s question in this way.

    Actually, there is no segregation in housing in Memphis as such.

    That is, there is no one particular area in Memphis where there are only colored people and other areas where there are only White people.

    They are intermingled and scattered over the whole city.

    Thomas R. Prewitt:

    This plan of desegregation would desegregate these various parks and playgrounds over a six to seven-year period until 1971.

    And I can’t answer Your Honor’s question by saying that when the park number 25 is desegregated that only white people or only colored people will appear there.

    Earl Warren:

    Well I didn’t answer that, you told us that just a little while ago that the reason is Westchester one could be done in a manner that it was, was because it was so predominantly colored that when they desegregated it, the Whites wouldn’t go there and therefore, you would have no trouble?

    Thomas R. Prewitt:

    That was not the basic reason.

    The reason was that the neighborhood around this particular park was almost entirely colored.

    The White people can participate there if they wish, it’s a voluntary situation.

    That’s about all I can say, Your Honor please.

    Again, I submit to the Court that the question herein involved is whether or not the District Court and the Court of Appeals had any discretion save to issue an immediate injunction that was the only issue there, it’s the only issue before this Court and if we are inadequate in our plans then that can be corrected and the Trial Judge will correct it, I’m sure.

    Earl Warren:

    Mrs. Motley

    Constance B. Motley:

    As Mr. Prewitt has stated the typewritten transcript of all of the testimony is here in this Court.

    And on Page 45 of the first volume, it is made clear that those parks, which are already desegregated or which had been desegregated prior to the institution of the suit to 25 of these squares and the —

    William J. Brennan, Jr.:

    25 [Inaudible]

    Constance B. Motley:

    Yes sir, the 25 that had been already desegregated.

    William J. Brennan, Jr.:

    Those were all these little neighborhood squares?

    Constance B. Motley:

    That’s right.

    And as it appears on page 45 of the typewritten transcript of the testimony, at that time, the Superintendent of the parks was going over the list of all the facilities and he had in his hand Plaintiff’s Exhibit 6 and he has the summary of all these facilities and there is one category on the top marked “General” and the Counsel examining him said, “Doesn’t general mean these — he said alright, in this category called general up there, number one, aren’t they what you mean to say these parks with just benches and places like Fort Square, are they?”

    Answer; “That is correct,” so that the facilities which were desegregated were mainly these squares with statues.

    In fact, one of them is I think a little strip of land near the river with four or five benches and they call that a park, but actually it’s just a little square that’s been desegregated.

    Potter Stewart:

    Mrs. Motley, it’s your position or at least your first position that with respect to a park and a playground system, there is no room for any delay of any kind, any place for any reason in delaying the compulsory immediate desegregation.

    Is that correct?

    Constance B. Motley:

    Yes, our first position is that with respect to public recreation —

    Potter Stewart:

    Yes.

    Constance B. Motley:

    — there is no need for the delay contemplated by this Court in the second Brown case because recreation is not like public schools, it’s like desegregation of the buses and those have been desegregated in Memphis and many other communities, immediate in the sense of immediate here of course doesn’t mean tomorrow, because no injunction was issued for ten days anyway and there maybe an appeal and a stay, but what we mean is that, that it should not be applied to this area, this gradualism, which is developed with respect to school —

    Potter Stewart:

    Well, any gradualism at all, don’t you mean?

    Constance B. Motley:

    That’s right.

    No gradualism at all is our first —

    Potter Stewart:

    And this area, you don’t mean Memphis, you mean the area of parks and playgrounds anywhere whether it be Memphis or Jackson, Mississippi or —

    Constance B. Motley:

    Yes sir, yes that’s correct.

    And what they’re attempting to do here really is to apply gradualism to the area of recreation such as now has developed with respect to the school.

    Now, Mr. Prewitt also said that the District Court has not acted on their plan because that his hands were stayed.

    Constance B. Motley:

    Now, that seems to imply that we applied for a stay of the District Court’s order or somebody did, but there was no stay here.

    And of course, an appeal does not automatically stay proceedings in the District Court and it is my understanding that that plan has not been filed with the District Court, the ten-year plan.

    Potter Stewart:

    There is no plan before this Court, is there?

    Constance B. Motley:

    That’s right.

    It has not been filed in the District Court, but as I said before, the Sixth Circuit has looked at it and now this Court has it because they say it’s a public document, everybody knows what —

    Potter Stewart:

    But it’s neither been approved nor disapproved by any Court?

    Constance B. Motley:

    That’s right.

    Yes that’s absolutely correct.

    Now, the point of —

    Arthur J. Goldberg:

    [Inaudible]

    Constance B. Motley:

    Yes sir, that’s what it is.

    Now as to the more supervisors — I think the answer to that was there — desegregation is that, if 20,000 new white children should move into Memphis as the Sixth Circuit said in the Clemens case, the local authorities would take care of that and they would provide more supervisors or whatever is required to accommodate an additional increase in white children.

    And the other thing is that there is more confusion now as a result of this gradualism and not less because Negroes are not advised when these parks are desegregated, they don’t know which park they can go in and as the record says, you don’t know until you go there and the policeman doesn’t chase you and you can go.

    So, this has resulted in more confusion rather than less.

    Thank you.