382 U.S. 296 (1966)
In 1911 United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Macon, Georgia, a tract of land.1 After the death of the Senator's wife and daughters, the land was to be used as a park and pleasure ground for white people only.2 Control was vested in a Board of Managers of seven white persons.3
The city kept the park segregated for some years.4 In time the city let Negroes use it.5 The city took the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.6
Thereupon individual members of the Board of Managers brought suit in a Georgia state court against the City of Macon and the trustees of certain residuary beneficiaries of the estate.7 They asked that the city be removed as trustee and that the court appoint new trustees to whom title to the park would be transferred.8 The city answered that it could not legally enforce racial segregation in the park.9 The other defendants admitted the allegation and requested the city's removal.10
Several Negro citizens of Macon intervened.11 They alleged that the racial limitation was contrary to federal law and public policy.12 They asked that the court refuse to appoint private trustees.13 The city resigned as trustee and amended its answer accordingly.14 Other heirs of Senator Bacon intervened seeking reversion of the trust property to the estate if the petition were denied.15
The Georgia trial court accepted the city's resignation and appointed three individuals as new trustees.16 On appeal by the Negro intervenors the Supreme Court of Georgia affirmed.17 The United States Supreme Court granted a writ of certiorari.18
Whether a park devised by will for the exclusive use of white persons, and long operated by a city as a public facility, remains subject to the Equal Protection Clause of the Fourteenth Amendment after the city resigns as trustee and a state court appoints private trustees?19
The Equal Protection Clause of the Fourteenth Amendment bars state-sponsored racial inequality.20 Formally private conduct becomes subject to constitutional limitations when it is so entwined with governmental policies or so impregnated with a governmental character as to become an instrumentality of the state.21 This is particularly true when the entity performs a public function traditionally associated with municipal government such as mass recreation through parks.22
Yes. The park was devised in 1911 by Senator Bacon to the City of Macon for use as a pleasure ground for white people only under a board of white managers.23 The city operated it for years as a segregated public facility by sweeping, manicuring, watering, patrolling, and maintaining the grounds while granting it tax exemption.24 Although the city resigned as trustee and the Georgia trial court appointed private successor trustees, the established facts show no change in the park's public character or municipal maintenance and concern.25
The nature of a park as open mass recreation without selective criteria other than race places it in the public domain akin to fire or police services.26 The momentum acquired as a municipal facility is not dissipated ipso facto by the substitution of trustees.27 Therefore the park remains subject to the Fourteenth Amendment.28
The park remains subject to the Equal Protection Clause of the Fourteenth Amendment after the change in trustees.29
Related opinions on this issue
Justice White agreed that the new trustees could not operate the park on a segregated basis but reached that result on different grounds.30 He concluded that Georgia Code sections 69-504 and 69-505 incurably tainted the racial restriction by authorizing racially limited charitable park trusts while casting doubt on nonracial restrictions.31 This involvement meant the state participated in private racial discrimination to such a significant extent that the restriction reflected state policy and violated the Fourteenth Amendment.32
White emphasized that the record was silent on continued city involvement.33 He rejected the majority's presumption of ongoing municipal entanglement as conjecture.34 Yet he still found the 1905 legislation converted the private choice into state action.35
Justice Black dissented.36 He maintained that the Georgia Supreme Court had decided only state-law questions concerning acceptance of the city's resignation and appointment of new trustees.37 No federal constitutional issue was adjudicated.38
Nothing in the Constitution prevents a city from resigning a trusteeship or a state court from appointing successors under state law.39 Black viewed the majority opinion as an improper advisory opinion on an issue the state courts had not reached.40 He stressed that the decree did not direct the new trustees to enforce segregation.41
Georgia retained full power to decide questions of reversion to the Bacon heirs.42
Joined by Justice Stewart
Justice Harlan dissented on both procedural and substantive grounds.43 He contended that the writ should have been dismissed as improvidently granted because the record did not clearly present the constitutional question.44 The Court should avoid deciding constitutional issues when they can be avoided.45
On the merits Harlan argued that the Equal Protection Clause reaches only state action.46 This case involved private discrimination originating solely from Senator Bacon's personal preferences.47 The city's resignation and the appointment of new trustees did not constitute state action.48
The majority's public-function theory rested on conjecture about continued municipal involvement.49 It threatened to extend state-action doctrine to private schools and other traditionally private institutions.50
Whether state court approval of a municipal trustee's resignation and appointment of successor private trustees to administer the park on a racially restricted basis constitutes state action violating the Fourteenth Amendment?51
State judicial action that enforces or gives effect to private racial discrimination by approving a trustee resignation and appointing successors to carry out a racially restrictive trust constitutes state action under the Fourteenth Amendment.52 This occurs when the facility has acquired a public character through prior municipal operation and the transfer does not disentangle the park from its prior segregated regime.53
Yes. The Georgia trial court accepted the City of Macon's resignation as trustee and appointed three private individuals as new trustees after the city had long operated the park as a segregated public facility.54 The Georgia Supreme Court affirmed that decree.55 The established facts demonstrate that the state courts' actions gave effect to the racially restrictive purpose of the trust by facilitating the continuation of segregation under private trustees.56
Because the park's predominant character remained municipal, the judicial approval and appointment implicated the state in conduct proscribed by the Fourteenth Amendment.57 The record does not show that the mere substitution of trustees instantly transferred the park from the public to the private sector free of constitutional constraints.58
State court approval of the municipal trustee's resignation and appointment of successor private trustees constitutes state action violating the Fourteenth Amendment.59
Related opinions on this issue
Justice White would have vacated the judgment and remanded for further state-law proceedings free from the compulsion of an erroneous view of federal law.60 The city's resignation, its acceptance, and the appointment of new trustees all rested on the incorrect premise that private trustees could obey the racial restriction without violating the Constitution.61 He concluded that the 1905 Georgia statutes favoring racial restrictions over other user limitations made the restriction reflect state policy.62
Justice Black maintained that the Georgia courts had decided only that the trial court committed no error under Georgia law in accepting the resignation and appointing successors.63 He argued that the majority improperly inferred a holding that the new trustees could operate the park on a segregated basis.64 The decree did not enjoin the trustees to exclude Negroes.65
The record contained no indication they had done so.66
Joined by Justice Stewart
Justice Harlan argued that the record was ambiguous at best on whether the state courts had decided the federal question.67 The Court should not stretch to reach a constitutional issue.68 He concluded that the sequence of events, including the city's resignation after it could no longer enforce segregation, involved no state action of the kind necessary to implicate the Fourteenth Amendment once the city was no longer connected with administration of the park.69