This litigation arises out of efforts by the residents of Hein Park, a subdivision located in Memphis, Tennessee, to close West Drive at its northerly end so as to bar all through traffic.1 As found by the district court, Hein Park
was developed well before World War II as an exclusive residential neighborhood for white citizens and these characteristics have been maintained. To the west of Hein Park is the sizeable and handsomely landscaped Southwestern College campus; the southern boundary of Hein Park is a boulevard which is the northern boundary for a large park and zoo; the eastern boundary is a large crosstown thoroughfare, which also contains residences; and the northern boundary is Jackson Avenue which carries considerable traffic, much of which is commercial in nature.
The street involved in this litigation is known as West Drive. It, extends the complete length of the subdivision, which is about one-half mile. Opposite West Drive on the north side of Jackson Avenue is a major thoroughfare, Springdale Street, which serves a sizeable area composed of black citizens. These are primarily the persons who will be inconvenienced by the so-called closing of West Drive.
As the map indicates, Springdale Street is, in fact, a northward extension, under another name, of West Drive.
The proposed closing is described by the district court in its opinion:
The partial closing will be accomplished by having the northernmost property owners on West Drive buy a 25-foot east-west strip across the entire width of the street. Because officials of certain departments of the city deem it necessary that public service vehicles will be able to cross the strip, a 24-foot gap will be left in the barricade. There will be a speed breaker across the gap, but other details, such as signs, have not been finalized.
Although the record is uncertain whether the northernmost property owners who are acquiring the east-west strip across the width of West Drive will, in fact, bar all foot traffic as well, it is clear that the proposed conveyance will leave them with the absolute right to do so if they wish, since the property will be private in all respects except for retained rights-of-way for certain service and emergency vehicles and utility easements.
Plaintiffs, certain black individuals and members of a class of black persons in the City of Memphis who own or stand to inherit property immediately to the north of and adjoining the Hein Park area, have attempted from the beginning to prevent the closing. They principally claim in this lawsuit that the closing of West Drive deliber
In an earlier appeal, our court reversed a judgment of the district court which dismissed the original complaint for failure to state a claim. In so doing, we held that the district court relied too heavily on Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), and its ruling that the closings of municipal swimming pools would not violate the Equal Protection Clause of the Fourteenth Amendment where it was shown that such closings prevented whites and blacks equally from enjoying the pools. Greene v. City of Memphis, 535 F.2d 976 (6th Cir. 1976) (Greene I). In remanding, we held that the facts alleged in the complaint, construed in the light most favorable to the plaintiffs, stated claims under 42 U.S.C. § 1982 and, even though it had not then been specifically pleaded, under 42 U.S.C. § 1983. In dicta, our court further observed that:
To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to in itself violate equal protection or, alternatively, to command an inference of racial motivation, [citations omitted]
This view does not conflict with Palmer, supra, which noted that “no ease in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.” 403 U.S. at 224, 91 S.Ct. at 1944, 29 L.Ed.2d at 444 (emphasis supplied). [citations omitted]
In Palmer, the closings left whites and blacks alike without municipal pools; consequently, there was “no state action affecting blacks differently from whites.” 403 U.S. at 225, 91 S.Ct. at 1945, 29 L.Ed.2d at 445. According to the instant complaint allegations, the closing of West Drive left certain white residents with privacy and quiet of a dead-end street, though black residents, for racial reasons, have been and would be unable to acquire such a dead-end street.
535 F.2d at 979-80.
Upon remand, amendments to the complaint were filed, certain additional individuals moved and were permitted to intervene as plaintiffs and the court certified
the action of the City Council which undertakes to close West Drive did not create a benefit for white citizens which has been denied black citizens. The proof shows that this is the only time that the street and alley closing procedure has been used to close a street which serves as a thoroughfare for the residents and the public. From the standpoint that the closing procedure has been used to close alleys and dedicated but unused streets, the proof shows that the procedure has benefited black citizens as well as white citizens.
The court, however, did hold that the proposed closing had a disproportionate impact upon the black citizens, but that the disparate impact was not so stark that a discriminatory motive could be inferred therefrom. The court stated that
the closure of West Drive in the manner adopted by the City Council will have disproportionate impact on certain black citizens. However, the Court also concludes that there is not sufficient proof of racially discriminatory intent or purpose on the part of the city officials to establish a constitutional violation.
******
As heretofore indicated, by placing the narrow barrier at the intersection of West Drive and Jackson, the southbound overwhelmingly black traffic will no longer be allowed to continue a logical and direct route across Jackson. At the same time the white residents of West Drive will have considerably less traffic. The residents of West Drive also will have less inconvenience because most of their movement will logically take them southbound on departure and northbound on return.
However, this Court does not believe that the disparate impact is so stark that a purpose or intent of racial discrimination may be inferred. It must be noted that excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood.
******
Similarly this Court does not find a purpose or intent to racially discriminate based upon a consideration of other evidence in the case as directed in Arlington Heights v. Metropolitan Housing Corp., supra, 429 U.S. [252] at 267, 68 [97 S.Ct. 555, 50 L.Ed.2d 450].
Page 399In the instant case, this federal court is of the opinion that it should refrain from applying its judgment on the merits even though the City Council opted for lessening the traffic problems for the white citizens of West Drive in spite of the adverse impact upon the black citizens north of Hein Park, the aggravation of racial hostility with the attendent (sic) retribution and vandalism caused by the obvious rejection, a reduction of response time for the fire and police and the inconvenience and delay to Sanitation Department employees.
THE COURT: (Interjecting) There is proof that this is just an invitation to vandalism and to defiance and confrontation from the people. Obviously the black people north of there who are being told to stay out of the subdivision.
Further showing his extreme skepticism at the proposed closing, the trial court observed:
THE COURT: I don’t think it is going to stand or fall except it is another indication that somebody decided they were going to accomplish, partially accomplish what they hadn’t been able to do in three years; the Hein Park Civic Club. They tried to keep all of the people north of Jackson from coming through there and that didn’t work. So, now somebody; I don’t know who it was, has come up with this clever idea that if we can get the two people on the corner to — I would be interested to know who is going to pay the eight hundred dollars [the agreed price of the 25-foot strip across West Drive], If we get those two people to agree and lend us their names, we can stop these people to the north.5
The trial judge also particularly noted in his opinion the testimony of Dr. Marvin Feit, an Assistant Professor at the University of Tennessee Center of Health Sciences, who testified as an expert witness that “closing West Drive would result in negative consequences in the form of hostility toward the people who live in Hein Park, increased vandalism, school harassment, and increased arrests by police.”6
In my opinion, with the 17 years experience in the real estate industry, psychologically it [the street closing], would have a deterring, depressing effect on those individuals who might live north of the Hein Park area. With the closure of the street, the creation of another little haven, the fact that these people are in a lower economic social group and wouldn’t be able to actually afford housing with the illustrious price tags of those houses in the Hein Park area, it would be, in my opinion, like the individual looking in the pastry store who doesn’t have a dime and who can’t afford it. And consequently, as a result of such, their moralistic values on their properties could tend to be such that the upkeep would not be nearly so great and it could have a detrimental effect on the property values in the future.
The foregoing citations from the record can only be reconciled with the court’s ultimate decision by concluding that the judge believed himself limited in his inquiry on remand to determining whether the proofs showed that in closing West Drive to reduce noise and traffic, the City of Memphis had conferred upon the white residents of West Drive a benefit that it had refused to black citizens when they had applied for similar relief. If this was, in fact, the limit of the inquiry, the decision must be upheld, for indeed the record did not show that any black resident had ever sought to close a street primarily for purposes of reducing the traffic and contributing to the tranquility of a given neighborhood. We have considerable sympathy with the trial judge’s view of his responsibility on remand since it seems supported at least by the cited dicta
Going back to 1982, which refers to the rights of blacks to hold their property in the same manner as whites, we feel that the closing of West Drive and the enhancement of the value of the properties along West Drive and the attendant and simultaneous decrease in property values that we think we have established here by the testimony of our witnesses in the black neighborhood does deny them a right protected by Section 1982. If the right is to uphold your property, we think that that right has been deprived. Not necessarily from the comparative standpoint of have black citizens ever applied for a street to be closed of this size and didn’t get it, and then just close off the inquiry there.
Now we understand the parameters of the Sixth Circuit’s decision in this, but we would suggest that the interpretations of 1982 refer to the full panacean [sic: panoply] of property rights, not necessarily the transfer of property.
Now, we also ask this Court in reviewing this matter be mindful of the Supreme Court’s starting point and its instruction of how a case of this nature should be considered. We think that the key language; and I think this is of supreme importance here, the key language is that the Court has to conduct a sensitive inquiry. It would be our argument and it is our argument that a sensitive inquiry in a matter of this type where we are contending that there was racial motivation, racial impact entails taking in everything that was brought forth here.
The “sensitive inquiry” referred to by counsel for the plaintiffs was taken from language of the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). There the Supreme Court was faced with the question of whether the refusal of the Village of Arlington Heights to authorize the construction of a public housing project within its boundaries in suburban Chicago was racially discriminatory and violated the Fourteenth Amendment. As Mr. Justice Powell observed:
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action — whether it “bears more heavily on one race than another,” Washington v. Davis, supra, 426 U.S. [229] at 242 [96 S.Ct. 2040, 48 L.Ed.2d 597] — may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356 [65 S.Ct. 1064, 30 L.Ed. 220] (1886); Guinn v. United States, 238 U.S. 347 [35 S.Ct. 926, 59 L.Ed. 1340] (1915); Lane v. Wilson, 307 U.S. 268 [59 S.Ct. 872, 83 L.Ed. 1281] (1939); Gomillion v. Light-foot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110] (1960). The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.
Id. at 266, 97 S.Ct. at 564 (footnotes omitted).7
While in his opinion, the trial judge expressly indicated his awareness of Arling
We readily acknowledge that, as a general proposition, street closings are a matter of purely local concern. We also recognize that street closings may, indeed, be a very beneficial way of preserving the residential character of a neighborhood against the growing incursion of traffic from outside sources. Thus we take note of plaintiff’s reliance upon Arlington County Board v. Richards, 434 U.S. 5, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977), and the Court’s observation that:
A community may also decide that restrictions on the flow of outside traffic into particular residential areas would enhance the quality of life there by reducing noise, traffic hazards, and litter.
Id. at 7, 98 S.Ct. at 26.
We further recognize that not every racially discriminatory act constitutes a badge of slavery. See e. g., Civil Rights Cases, 109 U.S. 3, 24-25, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Cf. Runyon v. McCrary, 427 U.S. 160, 211, 96 S.Ct. 2586, 2614, 49 L.Ed.2d 415 (1976) (White, J., dissenting) (“A racially motivated refusal to hire a Negro or a white babysitter or to admit a Negro or a white to a private association cannot be called a badge of slavery . . . .”). Nonetheless, the Supreme Court “recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery — its ‘burdens and disabilities’— included restraints upon ‘those fundamental rights which are the essence of civil freedom . . . .’ ” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441, 88 S.Ct. 2186, 2204, 20 L.Ed.2d 1189 (quoting Civil Rights Cases, supra, 109 U.S. at 22, 3 S.Ct. 18).9
42 U.S.C. § 1982 was enacted under authority of Section 2 of the Thirteenth Amendment.11 Jones, supra, 392 U.S. at 413, 88 S.Ct. 2186. Congress therein determined that the disability of blacks to enjoy property in the same manner as whites was a badge and incident of slavery. Id. at 439, 88 S.Ct. 2186.12
While the Supreme Court has not often been required to define “badge of slavery” under the Thirteenth Amendment, it is clear that many badges of slavery either were a part of the recent past or remain a part of the present. As Mr. Justice Douglas stated:
Some badges of slavery remain today. While the institution has been outlawed, it has remained in the minds and hearts of many white men. Cases which have come to this Court depict a spectacle of slavery unwilling to die. We have seen contrivances by States designed to thwart Negro voting, e. g., Lane v. Wilson, 307 U.S. 268 [59 S.Ct. 872, 83 L.Ed. 1281], Negroes have been excluded over and again from juries solely on account of their race, e. g., Strauder v. West Virginia, 100 U.S. 303 [, 25 L.Ed. 664], or have been forced to sit in segregated seats in courtrooms, Johnson v. Virginia, 373 U.S. 61 [83 S.Ct. 1053, 10 L.Ed.2d 195]. They have been made to attend segregated and inferior schools, e. g., Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873], or been denied entrance to colleges or graduate schools because of their color, e. g., Pennsylvania v. Board of Trusts, 353 U.S. 230 [77 S.Ct. 806, 1 L.Ed.2d 792]; Sweatt v. Painter, 339 U.S. 629 [70 S.Ct. 848, 94 L.Ed. 1114], Negroes have been prosecuted for marrying whites, e. g., Loving v. Virginia, 388 U.S. 1 [87 S.Ct. 1817, 18 L.Ed.2d 1010]. TheyPage 404have been forced to live in segregated residential districts, Buchanan v. Warley, 245 U.S. 60 [38 S.Ct. 16, 62 L.Ed. 149], and residents of white neighborhoods have denied them entrance, e. g., Shelley v. Kraemer, 334 U.S. 1 [, 68 S.Ct. 836, 92 L.Ed. 1161]. Negroes have been forced to use segregated facilities in going about their daily lives, having been excluded from railway coaches, Plessy v. Ferguson, 163 U.S. 537 [16 S.Ct. 1138, 41 L.Ed. 256]; public parks, New Orleans Park Improvement Assn. v. Detiege, 358 U.S. 54 [79 S.Ct. 99, 3 L.Ed.2d 46]; restaurants, Lombard v. Louisiana, 373 U.S. 267 [, 83 S.Ct. 1122, 10 L.Ed.2d 338]; public beaches, Mayor of Baltimore v. Dawson, 350 U.S. 877 [76 S.Ct. 133, 100 L.Ed. 774]; municipal golf courses, Holmes v. City of Atlanta, 350 U.S. 879 [76 S.Ct. 141, 100 L.Ed. 776]; amusement parks, Griffin v. Maryland, 378 U.S. 130 [84 S.Ct. 1770, 12 L.Ed.2d 754]; buses, Gayle v. Browder, 352 U.S. 903 [77 S.Ct. 145, 1 L.Ed.2d 114]; public libraries, Brown v. Louisiana, 383 U.S. 131 [86 S.Ct. 719,15 L.Ed.2d 637]. A state court judge in Alabama convicted a Negro woman of contempt of court because she refused to answer him when he addressed her as “Mary,” although she had made the simple request to be called “Miss Hamilton.” Hamilton v. Alabama, 376 U.S. 650 [84 S.Ct. 982, 11 L.Ed.2d 979],
Jones, supra, 392 U.S. at 445-46, 88 S.Ct. at 2206 (concurring opinion).
The closing of West Drive is merely another device leading to the same result. It would be, to blacks and whites alike, exactly what the trial judge said it was: an unmistakable warning to the black people living to the north of West Drive to stay out of the Hein Park subdivision. “[W]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.” Jones, supra, 392 U.S. at 442-43, 88 S.Ct. at 2205.
Without endeavoring to establish any legal guidelines for the determination of when conduct may amount to a badge of slavery, we find the determinations made by the district court here to be altogether adequate to bring the conduct complained of within that description. The community to be benefited by the closing was and had historically been all white. Conversely, the territory to be burdened by the closing was predominantly black. The barrier was to be erected precisely at the point of separation of these neighborhoods and would undoubtedly have the effect of limiting contact between them. The proposed closing was not enacted in response to any uniform city planning effort, directed generally to the preservation of the residential neighborhoods throughout the city; instead it appears to have been a unique step to protect one neighborhood from outside influences which the residents considered to be “undesirable.” Finally, there was some evidence, credited by the district court, of an economic depreciation in the property values in the predominantly black residential area with a corresponding increase in the property values in Hein Park. The result, under the unique circumstances here, can only be seen as one more of the many humiliations which society has historically visited upon blacks. Where that racial humiliation not only rises to the level of a badge of slavery but also affects the right of blacks to hold property in the same manner as other citizens, then Section 1982 has been violated and the federal courts must provide a suitable remedy.13
In addition to their Sections 1982 and 1983 claims, the plaintiffs raised certain pendent state claims. The district court held that “the evidence does not support a recovery under these or any other theory under the law of Tennessee.” The appellants have not questioned that decision in this appeal; we therefore have not considered it. The plaintiffs also sought a decree that the defendants should be required to cause sidewalks, curbs and gutters to be installed on West Drive. The district court found no basis for such relief and we agree. We likewise agree with the district court’s decision that the plaintiffs failed to prove their claim of a violation of their rights to procedural due process under the Fifth and Fourteenth Amendments.
CONCLUSION
In conclusion we hold that under the unique circumstances shown here, the erection of the barrier at the northerly boundary of West Drive constitutes a badge of slavery adversely affecting the ability of the plaintiffs to hold and enjoy their property, in violation of their rights under the Thirteenth Amendment and entitling them to a remedy under Section 1982.14 Accordingly, the judgment of the district court is reversed and the cause remanded for the fashioning of appropriate injunctive relief.
Appendix A to follow.
1.
A map of central Memphis is attached hereto as an appendix.
2.
U.S.Const. amend. XIII provides:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation. U.S.Const. amend. XIV, in part, provides:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
* * * * * *
Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
3.
42 U.S.C. § 1982 (1976) provides:
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
42 U.S.C. § 1983 (1976) provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
4.
The class was certified in accordance with a stipulation filed by the parties. That stipulation, in part, provided:
1. That the civil action brought by the plaintiff-intervenors through their complaint for intervention, as amended, may be certified as a class action that meets the requirements of Federal Rules of Civil Procedure 23(a) and (b)(2).
2. That the class is composed of black persons in the City of Memphis who own or stand to inherit property surrounding and adjoining the area along West Drive and Hein Park Subdivision.
3. That the issues embraced by this class action are to be confined to those in which injunctive or declaratory relief predominate.
4. That the monetary damage claims contained in the complaint, as amended, are made on behalf of the individual plaintiff-in-tervenors, and are not to be included as part of the relief sought on behalf of the members of the 23(b)(2) class, but said exclusion is not to preclude the seeking of such relief in other proceedings.
5.
The following exchange also occurred:
THE COURT: I don’t think that you can compare the closing of a part of an alley in an all black neighborhood to a situation where an all white neighborhood is seeking to stop the traffic from an overwhelmingly black neighborhood from coming through their street.
MR. SPEROS: Well, Your Honor, there has been no proof that it is an overwhelmingly black neighborhood to the north.
THE COURT: Have you been out there?
MR. SPEROS: I used to live out there.
THE COURT: Used to, you don’t now?
MR. SPEROS: Well, Sir, I lived on Overton Park which is just south of there just—
THE COURT: (Interjecting) I’m talking about Springdale. Coming across there. You don’t think that is predominently (sic) black?
MR. SPEROS: I am saying that there was no proof introduced to that effect, Your Hon- or. If you want to take judicial notice of it.
THE COURT: I will take judicial notice of the fact that that is one of the areas that — we use the word “predominently” (sic). I am sure that it is not all black. Predominently (sic) is kind of a delicate word. Hein Park is not predominently (sic) white, it is white.
So, if the City Council didn’t know that that property coming up to Jackson Avenue was predominently (sic) black, then I have got my doubts about them.
No contrary claim has been made on appeal, nor did any party object to the judicial notice so taken.
6.
Dr. Feit further testified:
There are several things that I think could very easily happen. First, one of the most important things that I think will occur is an increase in hostility directed towards the people in Hein Park. Acts of vandalism will most likely increase in the community where if people, children and teenagers know and perceive that the people in Hein Park arePage 400receiving something of a personal benefit that other people are not physically able to get.
A second consequence is going to be in school and which I think there very easily will be increased harrassment [sic] on the part of the children in the community that attend Snowden School and maybe a couple of other places, to the extent that the school, and the street, which now has a reasonable degree of integration and a reasonable degree of harmony flowing between the two areas, will effectively be destroyed.
Q Which street are you talking about now?
A The harmony that exists between Hein Park and West Drive and the Vollentine area. That harmony will be effectively destroyed.
That barrier will not in any way decrease foot traffic. In fact, it may serve as a magnet to bring more people to that place. I think if you ever wanted to create a monument to increased hostility, you would do that and that would serve as a magnet to bring people to a street to demonstrate very clearly that that is evidence of people being able to get favoritism. And as a result, and I have seen this happen in many other cities, you do get an increase and a long-term increase of vandalism on the street and in the area, particularly in Hein Park.
Q So that you are not restricted — well, let me ask the question this way. I think your testimony indicates that the hostility would be directed towards the residents of West Drive; is that correct?
A Very easily.
Q What, if anything, Dr. Feit, would this exertion of hostility have on the Black persons north of that area?
A Well, normally what happens is that people get on the telephone and call the Police Department. This is going to result in increased cost to the people of the city of Memphis because more policemen are going to have to come over there and investigate and as a result they will spend more time in the Black community. Obviously it is going to probably bring about an increase in arrests and harrassment [sic] of more Black youths, not in any way helping the City of Memphis Police Department do its job dealing with crime. They will have to spend increasingly more time in the Black community to locate vandals as opposed to dealing with crime.
* * * * * *
I think that the barrier is going to serve as a monument to racial hostility because now more people have access between the Vollentine area and Hein Park.
7.
Mr. Justice Powell was referring here to Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and its holding that the petitioners were illegally imprisoned for failure to comply with a city ordinance where such failure was the result of the city’s refusal to consent to the petition of approximately 200 persons of Chinese ancestry to operate a laundry business while the same consent was granted 80 others who were not of Chinese descent. The Court held that this worked an impermissible denial of the equal protection of the laws and hence a violation of the Fourteenth Amendment, even where no express evidence *402of intent was found. In this regard the Court found the facts themselves sufficient:
The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is therefore illegal, and the public administration which enforces it is a denial of the equal protection of the laws, and a violation of the Fourteenth Amend.ment of the Constitution. Id. at 374, 6 S.Ct. at 1073.
In Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), also cited by Mr. Justice Powell, the Supreme Court struck down a local act of the Alabama legislature which redefined the boundaries of the City of Tuskegee with the effect of removing from the city all save only four or five of its 400 Negro voters while not removing a single white voter or resident. As Mr. Justice Frankfurter observed:
The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections. Id. at 341, 81 S.Ct. at 127.
8.
Because of our holding that the plaintiffs are entitled to relief under Section 1982, we do not reach the question whether relief could be predicated directly on the Thirteenth Amendment with the cause of action lying under Section 1983. Neither our circuit nor the Supreme Court has decided this question. We note, however, that constitutional rights other than those contained in the Fourteenth Amendment have been protected under Section 1983. See, e. g., Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939) (violation of Fifteenth Amendment remedied under R.S. § 1979, the predecessor of Section 1983).
9.
Senator Trumbull, the sponsor of the bill which ultimately became the Civil Rights Act of 1866, stated that
this measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect . . . . Of what avail will it now be that the Constitution of the United States has declared that slavery shall not exist, if in the late slave-holding States laws are to be enacted and enforced depriving persons of African descent of privileges which are essential to freemen?
It is the intention of this bill to secure those rights.
10.
We also note that Section 1982 is limited in its scope to situations having a racial character. “The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights,, specifically defined in terms of racial equality.” George v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783, 1789, 16 L.Ed.2d 925 (1966).
11.
42 U.S.C § 1982, in its original form, was enacted as part of the Civil Rights Act of 1866. Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27, re-enacted by the Enforcement Act of 1870, ch. 114, § 18, 16 Stat. 144, and codified in § 1978 of the Revised Statutes of 1874, now 42 U.S.C. § 1982.
12.
Mr. Justice Bradley in the Civil Rights Cases, supra, 109 U.S. at 20, 3 S.Ct. at 28, stated regarding the Thirteenth Amendment:
By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.
It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States;
13.
We expressly leave open here the question to what extent intent is ever an element of the plaintiffs case under Section 1982. Compare Note, Racially Disproportionate Impact of Facially Neutral Practices — What Approach under 42 U.S.C. Sections 1981 and 1982?, 1977 Duke L.J. 1267 with Comments, Burden of Proof in Racial Discrimination Actions Brought Under the Civil Rights Acts of 1866 and 1870: Disproportionate Impact or Discriminatory Purpose?, 1978 B.Y.U.L.Rev. 1030. Cf. County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 1386, 59 L.Ed.2d 642 (1979) (Powell, J., dissenting) (whether case brought under 42 U.S.C. § 1981 requires proof of racially discriminatory intent or purpose is an open question).
14.
“The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy.” Jones, supra, 392 U.S. at 414 n. 13, 88 S.Ct. at 2190 n. 13.