concurring.
' I, too, join Mr. Justice Black’s opinion and the judgment of the Court.
Cases such as this are “hard” cases for there is much to be said on each side. In isolation this litigation may *229not be of great importance; however, it may have.significant implications.
The dissent of Me. Justice White rests on a conviction that the closing of the Jackson pools was racially motivated, at least in part, and that municipal action- so motivated is not to be tolerated. That dissent builds to its conclusion with a detailed review of the city’s and the Spate’s official attitudes of past years.
Mr. Justice Black’s opinion stresses, oh the other .hand, the facially equal effect upon all citizens of the decision to discontinue the pools. It also emphasizes the difficulty and undesirability of resting any constitutional decision upon what is claimed to be legislative motivation.
I remain impressed with the following-factors: (1) No other municipal recreational facility in the city of Jackson has been discontinued. • Indeed, every other service— parks, auditoriums, golf courses, zoo — that once was segregated, has been continued and operates on a nonsegregated basis. One must concede that this was effectuated initially under pressure of the 1962 declaratory judgment of the federal court. (2) The pools are not part of the city’s educational system. They are a general municipal service of the nice-to-have but not essential variety, and they are a service, perhaps a luxury, not enjoyed by many communities. (3) The pools had operated at a deficit. It was the judgment of the city officials that these deficits would increase. (4) I cannot read-intoThe closing of the pools an official expression of inferiority toward black citizens, as Mr. Justice White and those who join him repetitively assert, post, at 240-241, 266, and 268, and certainly on this record I cannot perceive this to be a "fact” or anything other than speculation. Furthermore, the alleged deterrent to relief, said to exist because of the risk of losing other public, facilities, post, at'269, *230is not detectable here in the face of the continued and desegregated presence of all other recreational -facilities provided by the city of Jackson. (5) The response of petitioners’ counsel at oral argument to my inquiry* whether the city was to be “locked in” with its pools for an indefinite time in the future, despite financial loss of whatever amount,- just because at one time the pools of Jackson had been segregated, is disturbing.
There are, of course, opposing considerations enumerated in the two dissenting opinions. As my Brothers Black, Douglas, and White all point out, however, the Court’s past cases do not precisely control this one, and the present case, if reversed, would take us farther than any before. On balance, in the light of the factors I have listed above, my judgment is that this is neither the time nor the occasion to be punitive toward Jackson for its past constitutional sins of segregation! On the record as presented to us in this case, I therefore vote to affirm.
“Q. Mr. Rosen, if you were to prevail here, would the city or Jackson be locked.in to operating the pools irrespective of the economic consequences of that operation?
“A. If the question is forever. If it was purely an economic problem, having nothing to do with race, or opposition to integration, they could handle that problem the way any community- handles that problem, if it is purely an economic decision. But if it becomes a consideration of race, which creates the economic difficulties, then it seems to me that this Court in numerous decisions has answered that question. It answered it in Watson, it answered it in Brown, and it answered it in Green. -
“Q. Well, this is in the premise of my question, for you to prevail here, this racial overtone, I will assume, you .must concede must be present. Now suppose you prevail, and suppose they lose economically year after year by increasing amounts. My question is, are they locked in forever?
“A. If the question is, are they locked in forever because of racial problems which cause a rise in economic difficulties in operating the pool, my answer is that they would be locked in.” Tr. of Oral Arg. 43-44.