Case 3.3 Incrementalism: Neglecting Important Constitutional Values without a Master Plan: Hawkins v. Town of Shaw

IMPORTANT CONSTITUTIONAL
VALUES WITHOUT A MASTER PLAN

Andrew HAWKINS et al., Plaintiffs,
Appellants,
v.
TOWN OF SHAW, MISSISSIPPI,
et al.,
Defendants-Appellees.
No. 29013.
United States Court of Appeals,
Fifth Circuit,
jan. 23, 1971
437 F.2d 1286
Summary

The Court of Appeals, Tuttle, Circuit Judge, held that disparities in providing municipal services in that nearly 98% of all homes fronting on unpaved streets in town were occupied by blacks and 97% of homes not served by sanitary sewers were in black neighborhoods, and fact that all new mer-cury vapor street lighting fixtures had been installed in white neighborhoods re-sulted in denial of equal protection . . . .

Opinion

TUTTLE, Circuit judge:
Referring to a portion of town or a segment of society as being "on the other side of the tracks" has for too long been a familiar expression to most Americans. Such a phrase immediately conjures up an area characterized by poor housing, over-crowded conditions and, in short, overall deterioration. While there may be many reasons why such areas exist in nearly all of our cities, one reason that cannot be ac-cepted is the discriminatory provision of municipal services based on race. It is such a reason that is alleged as the basis of this action.
Appellants are Negro citizens of the Town of Shaw, Mississippi. They alleged that the town has provided various munic-ipal services including street paving and street lighting, sanitary sewers, surface wa-ter drainage as well as water mains and fire hydrants in a discriminatory manner based, on race. Appellants brought a class action seeking injunctive relief under 42 U. S.C. § 1983 against the town, the town's mayor, clerk and five aldermen . . .

FACTS

The Town of Shaw, Mississippi was incorporated in 1886 and is located in the Mississippi Delta. Its population, which has undergone little change since 1930, con-sists 'of about 2,500 people-I, 500 black and 1,000 white residents. Residential ra-cial segregation is almost total. There are 451 dwelling units occupied by blacks it' town, and, of these, 97% (439) are located in neighborhoods in which no whites re-side. That the town's policies in adminis-tering various municipal services have led to substantially less attention being paid to the black portion of town is clear.

***STREET PAVING

The undisputed evidence is that 97% of all those who live in homes fronting on unpaved streets are black. In attempting to justify this, the trial court stated:
"Initially, concrete paving was afforded to those streets serving commercial and industrial inter-ests and to the areas nearest the town's center. In some cases this resulted in more street pav-ing in white than Negro neighborhoods, but the paving actually done in the municipality was on the basis of general usage, traffic needs and other objective criteria. Residential neighbor-hoods not facing principal streets or thorough-fares long remained unpaved, regardless of their character as white or black neighbor-hoods."

The record simply does not support the justification that streets were built ac-cording to traffic needs and usage. The town's one engineer who made recommen-dation to defendants as to the priority of street paving projects testified that he had never surveyed the town to determine which streets were used the most. Nor did he compare the usage of streets in black neighborhoods. He even admitted that he was not familiar with the usage of streets in the Promised Land Addition, which is one of the oldest and largest black neighbor-hoods in Shaw.

The finding that many streets were paved in the business areas and that this resulted, "in some cases," in providing more paving in white rather than black neighborhoods, also fails to justify the ex-isting disparities. As appellants point out, in 1956 when the first residential streets in black neighborhoods were paved, 96% of the white residents of Shaw already lived on paved streets, most of which had been paved during the 1930's. Many of these streets, however, were solely residential, and could not possibly serve commercial, industrial or any public buildings.

The trial court also found that many of the streets on which blacks live were too narrow to pave. The town engineer had testified that streets in black neighborhoods had not been paved because they did not have the fifty-foot right-of-way he consid-ered necessary. However, as appellants point out, most of the streets in Shaw, in both black and white neighborhoods, have platted rights of way that range from 30 to 40 feet. Further, while most streets fewer than 50 feet in white neighborhoods are paved, those in the black areas are not.

In short, even if we assume that such criteria as traffic usage, need and width constitute compelling state interests, they were not applied equally to both black and white neighborhoods. We are led to the inevitable conclusion that Shaw's policies, which have resulted in such significant disparities between the black and white portions of town, are, in no way justifiable.

STREET LIGHTS

The record clearly shows that abso-lutely no high power mercury vapor street lights have been installed in black residen-tial areas. Only the much weaker bare bulb fixtures are to be found. The trial court stated that there was no showing that the lighting was inadequate and, in any event: "The brighter lights are provided for those streets forming either a state highway, or serv-ing commercial, industrial or special school needs, or otherwise carrying the heaviest traffic load."

The fact that there was no specific showing that lighting was not adequate is not significant. What is significant is that it is clear that all of the better lighting that exists in Shaw can be found only in the white parts of town. Surely, this cannot be justified merely on the ground that the bare bulb fixtures are not shown to be inadequate. One might readily assume, it seems, that the modern high intensity lights are more adequate from the fact of their use by the city. Improvements to exist-ing facilities provided in a discriminatory manner may also constitute a violation of equal protection.

The other justifications accepted by the trial court again fail, for if the "special needs" criteria were applied equally for the benefit of both black and white citi-zens, all the high intensity lights would not be in only the white areas of town. For example, while streets with heavy traffic serving commercial and public centers, such as Gale Street, in black areas have only bare bulb fixtures, many little trav-eled streets in white neighborhoods have the high intensity variety. In short, we are again convinced that as with the paving of streets, the placement of new light fixtures only in the white portion of town cannot be justified.

SANITARY SEWERS

While 99% of white residents are served by a sanitary sewer system, nearly
20% of the black population is not so served. The trial court thought this was justified by noting that:

"Part of the problem in reaching all older unserved areas has been the necessity for bring-ing this service into newer subdivisions devel-oped for both races and brought into the town, as it is the town's firm policy to make sewer installations for all such new areas." It is not at all clear from the record that such a "firm policy" exists. However, even assuming that it does, the fact that exten-sions are now made to new areas in a non-discriminatory manner is not suffi-cient when the effect of such a policy is to "freeze in" the results of past discrimina-tion. As this court stated [previously]. . . "a relationship otherwise rational may be in-sufficient in itself to meet constitutional standards-if its effect is to freeze-in past discrimination." We find that since over one-third of the black population was not served when the original sewer system was constructed and nearly twenty percent of this population remains unserved, a policy of serving only new areas would freeze in the results of past discrimination. .

The trial court, however, also stated that:
"While the complaint about less than 100% sanitary sewage for all residences is certainly a real one, that condition arises basically from the fact that local law does not yet require indoor plumbing. The lack of sanitary sewers in certain areas of the town is not the result of racial discrimination in withholding a vital service: rather it is a consequence of not requiring through a proper housing code, certain mini-mal conditions for inhabited housing."

While we recognize that a proper housing code would help this situation, it is circular reasoning to argue that because indoor plumbing is not required, sewers are not provided. If sewers were provided, indoor plumbing could be more easily in-stalled. Indeed, without it, black residents desiring such facilities are forced to incur the extra expense of installing individual sewage disposal apparatus. In short, the justifications offered for the disparities that exist in the town's sewerage system are not valid.

SURFACE WATER DRAINAGE

We do not doubt that as the trial court notes: "Having flat nonporous soil with slow run-off conditions, Shaw suffers from drainage problems common to the Delta area." Indeed, there are serious drainage problems in both the black and white sections of town. However, the record reveals that the problems of the black community are far more serious. Whereas, the white community has been provided with either underground storm sewers or a continuous system of drainage ditches, the black neighborhoods have been provided with a poorly maintained system of drainage ditches and, on many streets, none at all. The following testi-mony concerning the black portion of town is illustrative:

Q. What is the shape of the actual drainage ditches or absence of them within the area?

A. These vary, so greatly. In one section, for example, of Canaan Street where within the last week someone has come along and cleared a ditch. The ditch is in the shape of a spade; that is, it's one shovel wide and one shovel deep and whatever was in what is now the ditch is now heaped in a pile along the side and this in that area serve as a ditch.

On Lampton Street, back in the Gale Street area, the ditch is a major excavation being three or four feet deep and the course of it, for example, negotiating a turn by automobile traveling from Lampton Street and attempting to turn into one of the short streets such as Johnson Street or Mose Street or Shaw Street is very precarious kind of undertaking that requires backing up and adjusting several times so as to get the car down the street without leaving the car in the ditch.
Then in the Elm Street area there is no visible form of drainage.

Appellees point to various impedi-ments to justify this disparity including haphazard subdividing, the absence of zoning regulations and rights of way of insufficient width. We have already dealt with the claim that roads in the black area are of insufficient width. Regarding the other impediments, we only note that they have been substantially overcome in white neighborhoods. We see no acceptable rea-son why they should not have been over-come in the black community as well.

WATER MAINS, FIRE HYDRANTS AND TRAFFIC CONTROL SIGNS

Although water is supplied to all res-idents of the town, the trial court found that "at all times water pressure is inade-quate in certain localities, irrespective of their racial character." We agree that the record discloses inadequate water pres-sure, but disagree that it is not related to the racial make-up of the locality.

The record reveals that the two areas where water pressure is most inadequate are black and constitute 63% of the town's black population. As appellants note, in the Gale Street area, 211 homes are served by 4" water mains while in the Promised Land, most of the 74 homes are served by 2" or 1 1/4" mains. Most of the white com-munity is served by 6" mains. The 4" mains that do exist in the white portion of town serve, however, far fewer homes than the 4" mains in the black section. In short, as with the previously examined municipal services, the town's policies have again created a situation in which the black por-tion of town is severely disadvantaged. An examination of the record regarding the placement of fire hydrants as well as the placement of any traffic control signs in black neighborhoods leads us to the same conclusion.

INTENT

Yet, despite the fact that we conclude that no compelling state interests can jus-tify the disparities that exist in the black and white portions of town, it may be argued that this result was not intended. That is to say, the record contains no direct evidence aimed at establishing bad faith, ill will or an evil motive on the part of the Town of Shaw and its public officials. . . . Having determined that no compelling state interests can possibly justify the dis-criminatory results of Shaw's administra-tion of municipal services, we conclude that a violation of equal protection has occurred.