U.S. Supreme Court

MEMPHIS v. GREENE, 451 U.S. 100 (1981)

451 U.S. 100

Decided April 20, 1981.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in the judgment. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined.

The question presented is whether a decision by the city of Memphis to close the north end of West Drive, a street that traverses a white residential community, violated of the Civil Rights Act of 1866 or the Thirteenth Amendment to the United States Constitution. The city's action was challenged by respondents, who resided in a predominantly black area to the north. The Court of Appeals ultimately held the street closing invalid because it adversely affected respondents' ability to hold and enjoy their property. 


Most of the relevant facts concerning the geography, the decision to close the street, and the course of the litigation are not in dispute. The inferences to be drawn from the evidence, however, are subject to some disagreement.

A. Geography

Hein Park, a small residential community in Memphis, Tenn., is bounded on three sides by thoroughfares and on the west by the campus of Southwestern University. West Drive is a two-lane street about a half mile long passing through the center of Hein Park. Its southern terminus is a short distance from an entrance to Overton Park, a large recreation area containing, among other facilities, the municipal zoo. Its northern terminus is at the intersection of Jackson Ave. and Springdale St., two heavily traveled four-lane avenues. West Drive is one of three streets that enter Hein Park from the north; two streets enter from the east.

The closing will have some effect on both through traffic and local traffic. Prior to the closing, a significant volume of traffic southbound on Springdale St. would continue south on West Drive and then - because of the location of Overton Park to the south of Hein Park - make either a right or a left turn to the next through street a few blocks away, before resuming the southerly route to the center of the city. The closing of West Drive will force this traffic to divert to the east or west before entering Hein Park, instead of when it leaves, but the closing will not make the entire route any longer. With respect to local traffic, the street closing will add some distance to the trip from Springdale St. to the entrance to Overton Park and will make access to some homes in Hein Park slightly less convenient.

The area to the north of Hein Park is predominantly black. All of the homes in Hein Park were owned by whites when the decision to close the street was made.

B. City Approval

In 1970, residents of Hein Park requested the city to close four streets leading into the subdivision. After receiving objections from the police, fire, and sanitation departments, the city denied the request. In its report regarding the application, the city's Traffic Engineering Department noted that much of the traffic through the subdivision could be eliminated by closing West Drive at Jackson Ave. Thereafter, on July 9, 1973, members of the Hein Park Civic Association filed with the Memphis and Shelby County Planning Commission a formal "Application to Close Streets or Alleys" seeking permission to close West Drive for 25 feet south of Jackson Ave. The application was signed by the two property owners abutting both Jackson Ave. and West Drive and all but one of the other West Drive homeowners on the block immediately south of Jackson Ave. The stated reasons for the closing were:

After receiving the views of interested municipal departments, the County Planning Commission on November 1, 1973, recommended that the application be approved with the conditions that the applicants provide either an easement for existing and future utility company facilities or the funds to relocate existing facilities and that the closure provide clearance for fire department vehicles. The City Council held a hearing at which both proponents and opponents of the proposal presented their views, and the Council adopted a resolution authorizing the closing subject to the conditions recommended by the Planning Commission. The city reconsidered its action and held additional hearings on later dates but never rescinded its resolution. 

C. Litigation

In a complaint filed against the city and various officials in the United States District Court for the Western District of Tennessee on April 1, 1974, three individuals and two civic associations, suing on behalf of a class of residents north of Jackson Ave. and west of Springdale St., alleged that the closing was unconstitutional and prayed for an injunction requiring the city to keep West Drive open for through traffic....

After a full trial Judge McRae filed a detailed memorandum decision in which he found against the respondents on each of the three contested issues of fact. He specifically concluded that the action of the City Council closing West Drive "did not create a benefit for white citizens which has been denied black citizens"; that racially discriminatory intent or purpose had not been proved; and that the city  had not departed significantly from normal procedures in authorizing the closing. Accordingly, the District Court entered judgment for the city.

The Court of Appeals did not reject any of the District Court's findings of fact. The Court of Appeals did hold, however, that Judge McRae had erred by limiting his focus to the issue of whether the city had granted a street closing application made by whites while denying comparable benefits to blacks....The court held that the respondents need not show that the city had denied street-closing applications submitted by black neighborhoods to show a violation of 1982.  Rather, the court held that respondents could demonstrate that this particular street closing was a "badge of slavery" under 1982 and the Thirteenth Amendment without reference to the equal treatment issue. 

The Court of Appeals recognized that a street closing may be a legitimate and effective means of preserving the residential character of a neighborhood and protecting it from the problems caused by excessive traffic. The Court of Appeals concluded, however, that relief under 1982 was required here by the facts: (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a "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"; (3) that the closing was not part of a citywide plan but rather was a "unique step to protect one neighborhood from outside influences which the residents considered to be `undesirable'"; and (4) that there was evidence of "an economic depreciation in the property values in the predominantly black residential area." Before addressing the legal issues, we consider the extent to which each of these conclusions is supported by the record and the District Court's findings.

D. The Evidence

Judge McRae expressly found that the City Council action "will have disproportionate impact on certain black citizens." He described the traffic that will be diverted by the closing as "overwhelming black," and noted that the white residents of West Drive will have less inconvenience. We must note, however, that although... although it is correct that the motorists who will be inconvenienced by the closing are primarily black, the extent of the inconvenience is not great.

As for the Court of Appeals' second point, the court attached greater significance to the closing as a "barrier" between two neighborhoods than appears warranted by the record. The physical barrier is a curb that will not impede the passage of municipal vehicles. Moreover, because only one of the several streets entering Hein Park is closed to vehicular traffic, the other streets will provide ample access to the residences in Hein Park. The diversion of through traffic around the Hein Park residential area affects the diverted motorists, but does not support the suggestion that such diversion will limit the social or commercial contact between residents of neighboring communities.  

The Court of Appeals' reference to protecting the neighborhood from "undesirable" outside influences may be read as suggesting that the court viewed the closure as motivated by the racial attitude of the residents of Hein Park. The District Court's findings do not support that view of the record. Judge McRae expressly discounted the racial composition of the traffic on West Drive in evaluating its undesirable character; he 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." The transcript of the City Council hearings indicates that the residents of West Drive perceived the traffic to be a problem because of the number and speed of the cars traveling down West Drive. Even if the statements of the residents of West Drive are discounted as self-serving, there is no evidence that the closing was motivated by any racially exclusionary desire....

Finally, the Court of Appeals was not justified in inferring that the closure would cause "an economic depreciation in the property values in the predominantly black residential area . . . ." The only expert testimony credited by the District Court on that issue was provided by a real estate broker called by the plaintiffs.... In our opinion the District Court correctly refused to find an adverse impact on black property values based on that speculation. 

In summary, then, the critical facts established by the record are these: The city's decision to close West Drive was motivated by its interest in protecting the safety and tranquility of a residential neighborhood. The procedures followed in making the decision were fair and were not affected by any racial or other impermissible factors. The city has conferred a benefit on certain white property owners but there is no reason to believe that it would refuse to confer a comparable benefit on black property owners. The closing has not affected the value of property owned by black citizens, but it has caused some slight inconvenience to black motorists.


Under the Court's recent decisions in Washington v. Davis, 426 U.S. 229 , and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 , the absence of proof of discriminatory intent forecloses any claim that the official action challenged in this case violates the Equal Protection Clause of the Fourteenth Amendment. Petitioners ask us to hold that respondents' claims under 1982 and the Thirteenth Amendment are likewise barred by the absence of proof of discriminatory purpose. We note initially that the coverage of both 1982 and the Thirteenth Amendment is significantly different from the coverage of the Fourteenth Amendment. The prohibitions of the latter apply only to official action, or to action taken under color of state law. We have squarely decided, however, that 1982 is directly applicable to private parties, Jones v. Alfred H. Mayer Co., 392 U.S. 409; and it has long been settled that the Thirteenth 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." Civil Rights Cases. Thus, although respondents challenge official action in this case, the provisions of the law on which the challenge is based cover certain private action as well. Rather than confront prematurely the rather general question whether either 1982 or the Thirteenth Amendment requires proof of a specific unlawful purpose, we first consider the extent to which either provision applies at all to this street closing case.... 


In relevant part, the Thirteenth Amendment provides:

In this case respondents challenge the conferring of a benefit upon white citizens by a measure that places a burden on black citizens as an unconstitutional "badge of slavery." The city argues that in the absence of a violation of specific enabling legislation enacted pursuant to Section 2 of the Thirteenth Amendment, any judicial characterization of an isolated street closing as a badge of slavery would constitute the usurpation of "a law-making power far beyond the imagination of the amendment's authors." 

Pursuant to the authority created by the Thirteenth Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the "badges and incidents of slavery." The exercise of that authority is not inconsistent with the view that the Amendment has self-executing force. As the Court noted in Jones v. Alfred H. Mayer Co. :

In Jones, the Court left open the question whether Section 1 of the Amendment by its own terms did anything more than abolish slavery. It is also appropriate today to leave that question open because a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not, in any event, be fairly characterized as a badge or incident of slavery.

We begin our examination of respondents' Thirteenth Amendment argument by reiterating the conclusion that the record discloses no racially discriminatory motive on the part of the City Council. Instead, the record demonstrates that the interests that did motivate the Council are legitimate. Proper management of the flow of vehicular traffic within a city requires the accommodation of a variety of conflicting interests: the motorist's interest in unhindered access to his destination, the city's interest in the efficient provision of municipal services, the commercial interest in adequate parking, the residents' interest in relative quiet, and the pedestrians' interest in safety. Local governments necessarily exercise wide discretion in making the policy decisions that accommodate these interests.

In this case the city favored the interests of safety and tranquility. As a matter of constitutional law a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events. The decision to reduce the flow of traffic on West Drive was motivated, in part, by an interest in the safety of children walking to school. That interest is equally legitimate whether it provides support for an arguably unnecessary preventive measure or for a community's reaction to a tragic accident that adequate planning might have prevented. 

The residential interest in comparative tranquility is also unquestionably legitimate. That interest provides support for zoning regulations, designed to protect a "quiet place where yards are wide, people few, and motor vehicles restricted . . . ." , and for the accepted view that a man's home is his castle.... 

Whether the individual privacy interests of the residents of Hein Park, coupled with the interests in safety, should be considered strong enough to overcome the more general interest in the use of West Drive as a thoroughfare is the type of question that a multitude of local governments must resolve every day. Because there is no basis for concluding that the interests favored by the city in its decision were contrived or pretextual, the District Court correctly concluded that it had no authority to review the wisdom of the city's policy decision. 

The interests motivating the city's action are thus sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on the liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. The argument that the closing violates the Amendment must therefore rest, not on the actual consequences of the closing, but rather on the symbolic significance of the fact that most of the drivers who will be inconvenienced by the action are black.

But the inconvenience of the drivers is a function of where they live and where they regularly drive - not a function of their race; the hazards and the inconvenience that the closing is intended to minimize are a function of the number of vehicles involved, not the race of their drivers or of the local residents. Almost any traffic regulation - whether it be a temporary detour during construction, a speed limit, a one-way street, or a no-parking sign - may have a differential impact on residents of adjacent or nearby neighborhoods. Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation's adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom. Proper respect for the dignity of the residents of any neighborhood requires that they accept the same burdens as well as the same benefits of citizenship regardless of their racial or ethnic origin.

To decide the narrow constitutional question presented by this record we need not speculate about the sort of impact on a racial group that might be prohibited by the Amendment itself. We merely hold that the impact of the closing of West Drive on nonresidents of Hein Park is a routine burden of citizenship; it does not reflect a violation of the Thirteenth Amendment.

JUSTICE WHITE, concurring in the judgment.

We granted review to answer the question presented in the petition for a writ of certiorari. The parties in their briefs proceeded on the same assumption. However, instead of addressing the question which was explicitly presented by the findings and holdings below, raised by the petitioners, granted review by this Court and briefed by the parties, the Court inexplicably assumes the role of factfinder, peruses the cold record, rehashes the evidence, and sua sponte purports to resolve questions that the parties have neither briefed nor argued. It is not surprising that the dissent has taken this same record and interpreted it in quite another way. In any event, rather than becoming involved in the imbroglio between the majority and the dissent, I much prefer as a matter of policy and common sense to answer the question for which we took the case.

We are called upon to determine whether a nonintentional adverse impact upon black citizens is a sufficient basis for relief under 42 U.S.C. 1982. That statute declares that "[a]ll 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." Under that language, a person's race is irrelevant to the existence of the declared rights. No person is to be denied the enumerated rights merely because that person is not white. Purposeful racial discrimination is quite clearly the focus of the proscription, and this understanding of 1982 is supported by the legislative history of the Civil Rights Act of 1866, the enactment from which 1982 was derived.

The Civil Rights Act of 1866 was enacted pursuant to Section 2 of the Thirteenth Amendment. That Amendment had been adopted by the States in 1865 after the close of the Civil War. It announced the legal demise of slavery. Section 2 of the Amendment provides: "Congress shall have power to enforce this article by appropriate legislation." Although slavery was legally abolished, the Amendment foresaw that specific implementation of its command would be required to eradicate completely the deep-seated institution of slavery. The Civil Rights Act of 1866 was explicitly designed as such a practical measure.

When the 39th Congress undertook consideration of the proposed Civil Rights Act of 1866, there was a growing perception that the plight of the southern blacks had not been resolved by the adoption of the Thirteenth Amendment. In the words of one contemporary observer: "The general government of the republic has, by proclaiming the emancipation of the slaves, commenced a great social revolution in the south, but has, as yet, not completed it. Only the negative part of it is accomplished. The slaves are emancipated in point of form, but free labor has not yet been put in the place of slavery in point of fact." Individual Southern States had begun enacting the so-called Black Codes, which, although not technically resurrecting the institution of slavery, were viewed by the Republican Congress as a large step in that direction. In addition, there was evidence that former slaves were being subjected to serious abuses at the hands of the white majority.  The proposed Civil Rights Act was specifically designed to stem this tide of oppression. Senator Trumbull, sponsor of the bill, made this precise purpose of the Act abundantly clear:

The supporters of the bill emphasized time and again that the measure was designed to eradicate blatant deprivations of civil rights. The purpose of the Act was to insure that the abolition of slavery was accomplished in fact as well as theory:

The Civil Rights Act of 1866 thus was a response to the perception held by Congress that former slaves were being denied basic civil rights. The Act would give practical effect to the Thirteenth Amendment. "The bill under consideration is intended only to carry into practical effect the amendment of the Constitution. Its object is to declare not only that slavery shall be abolished upon the pages of your Constitution, but that it shall be abolished in fact and in deed . . . ." But nothing in the legislative history of this Act suggests that Congress was concerned with facially neutral measures which happened to have an incidental impact on former slaves. On the contrary, the theme of the debates surrounding this statute is that the former slaves continued to be subject to direct, intentional abuses at the hands of their former masters. That was the problem Congress intended to address and that focus should determine the reach and scope of this statute. We have no basis for concluding anything other than that a violation of 1982 requires some showing of racial animus or an intent to discriminate on the basis of race... 


This case is easier than the majority makes it appear. Petitioner city of Memphis, acting at the behest of white property owners, has closed the main thoroughfare between an all-white enclave and a predominantly Negro area of the city. The stated explanation for the closing is of a sort all too familiar: "protecting the safety and tranquility of a residential neighborhood" by preventing "undesirable traffic" from entering it. Too often in our Nation's history, statements such as these have been little more than code phrases for racial discrimination. These words may still signify racial discrimination, but apparently not, after today's decision, forbidden discrimination. The majority, purporting to rely on the evidence developed at trial, concludes that the city's stated interests are sufficient to justify erection of the barrier. Because I do not believe that either the Constitution or federal law permits a city to carve out racial enclaves I dissent....


The majority treats this case as involving nothing more than a dispute over a city's race-neutral decision to place a barrier across a road. My own examination of the record suggests, however, that far more is at stake here than a simple street closing. The picture that emerges from a more careful review of the record is one of a white community, disgruntled over sharing its street with Negroes, taking legal measures to keep out the "undesirable traffic," and of a city, heedless of the harm to its Negro citizens, acquiescing in the plan....

The majority concedes that the trial court "clearly concluded . . . that the adverse impact on blacks was greater than on whites." The majority suggests, however, that this "impact" is limited to the "inconvenience" that will be suffered by drivers who live in the predominantly Negro area north of Hein Park and who will no longer be able to drive through the subdivision. This, says the majority, is because residents of the area north of Hein Park will still be able to get where they are going; they will just have to go a little out of their way and thus will take a little longer to complete the trip.

This analysis ignores the plain and powerful symbolic message of the "inconvenience." Many places to which residents of the area north of Hein Park would logically drive lie to the south of the subdivision. Until the closing of West Drive, the most direct route for those who lived on or near Springdale St. was straight down West Drive. Now the Negro drivers are being told in essence: "You must take the long way around because you don't live in this `protected' white neighborhood." Negro residents of the area north of Hein Park testified at trial that this is what they thought the city was telling them by closing West Drive. Even the District Court, which granted judgment for petitioners, conceded that "[o]bviously, the black people north of. [Hein Park] . . . are being told to stay out of the subdivision." In my judgment, this message constitutes a far greater adverse impact on respondents than the majority would prefer to believe....

The psychological effect of this barrier is likely to be significant. In his unchallenged expert testimony in the trial court, Dr. Marvin Feit, a professor of psychiatry at the University of Tennessee, predicted that the barrier between West Drive and Springdale St. will reinforce feelings about the city's "favoritism" toward whites and will "serve as a monument to racial hostility."  The testimony of Negro residents and of a real estate agent familiar with the area provides powerful support for this prediction. As the District Court put it: "[Y]ou are not going to be able to convince those black people out there that they didn't do it because they were black. They are helping a white neighborhood. Now, that is a problem that somebody is going to have to live with . . . ."  I cannot subscribe to the majority's apparent view that the city's erection of this "monument to racial hostility" amounts to nothing more than a "slight inconvenience...." 

The majority does not attempt to question the third conclusion by the Court of Appeals, that the closing of West Drive is intended as a protection of Hein Park against "undesirable" outside influences. The term "undesirable traffic" first entered this litigation through the trial testimony of Sarah Terry. Terry, a West Drive resident who opposed the closing, testified that she was urged to support the barrier by an individual who explained to her that "the traffic on the street was undesirable traffic." The majority apparently reads the term "undesirable" as referring to the prospect of having any traffic at all on West Drive. But the common-sense understanding of Terry's testimony must be that the word "undesirable" was meant to describe the traffic that was actually using the street, as opposed to any traffic that might use it. Of course, the traffic that was both actually using the street and would be affected by the barrier was predominantly Negro.... 

Most important, I believe that the findings of the District Court and the record in this case fully support the Court of Appeals' conclusion that Negro property owners are likely to suffer economic harm as a result of the construction of the barrier. In attempting to demonstrate to the trial court that the closing of West Drive would adversely affect their property, respondents first introduced the testimony of H. C. Moore, a real estate agent with 17 years' experience in the field.... Surely Moore's uncontroverted expert testimony is evidence of an impairment of property values, an impairment directly traceable to the closing of West Drive. The majority dismisses this aspect of Moore's testimony as "speculation...." 

In sum, I cannot agree with the majority's suggestion that "[t]he injury to respondents established by the record is the requirement that one public street rather than another must be used for certain trips within the city," and that this requirement amounts to no more than "some slight inconvenience." 


When Congress enacted the Civil Rights Act of 1866, 14 Stat. 27, now 42 U.S.C. 1982, it intended "to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein. . . ." Jones v. Alfred H. Mayer Co. (1968). These enumerated rights include the rights "to inherit, purchase, lease, sell, hold, and convey real and personal property." At bottom, as the majority recognizes, 1982 creates a right in Negroes "not to have property interests impaired because of their race." Our decisions have recognized that the language of the statute is to be broadly construed. If the language of the statute is given the broad reading that our cases require, then it is difficult to see how petitioners can avoid its effect....

I do not, of course, mean to suggest that the Reconstruction Congress that enacted 1982 anticipated the precise situation presented by this case. Nor do I wish to imply that the Act prevents government from ever closing a street when the effect is to inflict harm on Negro property owners. But because of our Nation's sad legacy of discrimination and the broad remedial purpose of 1982, I believe that official actions whose effects fall within its terms ought to be closely scrutinized. When, as here, the decisionmaker takes action with full knowledge of its enormously disproportionate  racial impact, I believe that 1982 requires that the government carry a heavy burden in order to justify its action. Absent such a justification, the injured property owners are entitled to relief. There is no need to suggest here just how great the government's burden should be, because the reasons set forth by the city for the closing of West Drive could not, on the facts of this case, survive any but the most minimal scrutiny....

In short, I conclude that the plain language of 1982 and its legislative history show that the harm established by a fair reading of this record falls within the prohibition of the statute. Because the Court of Appeals reached the same conclusion, I would affirm its judgment. 

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