author: Mr. Justice Blackmun

text:
    MORTON, SECRETARY OF THE INTERIOR, et al. v. MANCARI et al.
    No. 73-362.
    Argued April 24, 1974
    Decided June 17, 1974

      BlackmuN, J., delivered the opinion for a unanimous Court.

      Harry R. Sachse argued the cause for appellants in No. 73-362. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Carlton R. Stoiber, and M. Patricia Schaffer. Harris D. Sherman
      argued the cause for appellant in No. 73-364. With him on the briefs was Stuart J. Land.

      Gene E. Franchini argued the cause and filed a brief for appellees in both cases.

      Together with No. 73-364, Amerind v. Mancari et al., also on appeal from the same court.

      Briefs of amici curiae urging reversal were filed by Theodore S. Hope, Jr., William C. Pelster, and Joseph E. Fortenberry for Montana Inter-Tribal Policy Board et al., and by Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund.

   Mr. Justice Blackmun

delivered the opinion of the Court.

The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, 48 Stat. 984, 25 U. S. C. § 461 et seq., accords an employment preference for qualified Indians in the Bureau of Indian Affairs (BIA or Bureau). Appellees, non-Indian BIA employees, challenged this preference as contrary to the anti-discrimination provisions of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. § 2000e et seq. (1970 ed., Supp. II), and as violative of the Due Process Clause of the Fifth Amendment. A three-judge Federal District Court concluded that the Indian preference under the 1934 Act was impliedly repealed by the 1972 Act. 359 F. Supp. 585 (NM 1973). We noted probable jurisdiction in order to examine the statutory and constitutional validity of this longstanding Indian preference. 414 U. S. 1142 (1974); 415 U. S. 946 (1974).

I

Section 12 of the Indian Reorganization Act, 48 Stat. 986,25 U. S. C. § 472, provides:

“The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office,[] in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.”

In June 1972, pursuant to this provision, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, issued a directive (Personnel Management Letter No. 72-12) (App. 52) stating that the BIA’s policy would be to grant a preference to qualified Indians not only, as before, in the initial hiring stage, but also in the situation where an Indian and a non-Indian, both already employed by the BIA, were competing for a promotion within the Bureau. The record indicates that this policy was implemented immediately.

Shortly thereafter, appellees, who are non-Indian employees of the BIA at Albuquerque, instituted this class action, on behalf of themselves and other non-Indian employees similarly situated, in the United States District Court for the District of New Mexico, claiming that the “so-called 'Indian Preference Statutes,’ ” App. 15, were repealed by the 1972 Equal Employment Opportunity Act and deprived them of rights to\property without due process of law, in violation of the Fifth Amendment. Named as defendants were the Secretary of the Interior, the Commissioner of Indian Affairs, and the BIA Directors for the Albuquerque and Navajo Area Offices. Appellees claimed that implementation and enforcement of the new preference policy “placed and will continue to place [appellees] at a distinct disadvantage in competing for promotion and training programs with Indian employees, all of which has and will continue to subject the [appellees] to discrimination and deny them equal employment opportunity.” App. 16.

A three-judge court was convened pursuant to 28 U. S. C. § 2282 because the complaint sought to enjoin, as unconstitutional, the enforcement of a federal statute. Appellant Amerind, a nonprofit organization representing Indian employees of the BIA, moved to intervene in support of the preference; this motion was granted by the District Court and Amerind thereafter participated at all stages of the litigation.

After a short trial focusing primarily on how the new policy, in fact, has been implemented, the District Court concluded that the Indian preference was implicitly repealed by § 11 of the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. Ill, 42 U. S. C. § 2000e-16 (a) (1970 ed., Supp. II), proscribing discrimination in most federal employment on the basis of race. Having found that Congress repealed the preference, it was unnecessary for the District Court to pass on its constitutionality. The court permanently enjoined appellants “from implementing any policy in the Bureau of Indian Affairs which would hire, promote, or reassign any person in preference to another solely for the reason that such person is an Indian.” The execution and enforcement of the judgment of the District Court was stayed by Mr. Justice Marshall on August 16, 1973, pending the disposition of this appeal.

II

The federal policy of according some hiring preference to Indians in the Indian service dates at least as far back as 1834. Since that time, Congress repeatedly has enacted various preferences of the general type here at issue. The purpose of these preferences, as variously expressed in the legislative history, has been to give Indians a greater participation in their own self-government; to further the Government’s trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.

The preference directly at issue here was enacted as an important part of the sweeping Indian Reorganization Act of 1934. The overriding purpose of that particular Act was to establish machinery whereby Indian tribes-would be able to assume a greater degree of self-government, both politically and economically. Congress was seeking to modify the then-existing situation whereby the primarily non-Indian-staffed BIA had plenary control, for all practical purposes, over the lives and destinies of the federally recognized Indian tribes. Initial congressional proposals would have diminished substantially the role of the BIA by turning over to federally chartered self-governing Indian communities many of the functions normally performed by the Bureau. Committee sentiment, however, ran against such a radical change in the role of the BIA. The solution ultimately adopted was to strengthen tribal government while continuing the active role of the BIA, with the understanding that the Bureau would be more responsive to the interests of the people it was created to serve.

One of the primary means by which self-government would be fostered and the Bureau made more responsive was to increase the participation of tribal Indians in the BIA operations. In order to achieve this end, it was recognized that some kind of preference and exemption from otherwise prevailing civil service requirements was necessary. Congressman Howard, the House sponsor, expressed the need for the preference:

“The Indians have not only been thus deprived of civic rights and powers, but they have been largely deprived of the opportunity to enter the more important positions in the service of the very bureau which manages their affairs. Theoretically, the Indians have the right to qualify for the Federal civil service. In actual practice there has been no adequate program of training to qualify Indians to compete in these examinations, especially for technical and higher positions; and even if there were such training, the Indians would have to compete under existing law, on equal terms with multitudes of white applicants. . . . The various services on the Indian reservations are actually local rather than Federal services and are comparable to local municipal and county services, since they are dealing with purely local Indian problems. It should be possible for Indians with the requisite vocational and professional training to enter the service of their own people without the necessity of competing with white applicants for these positions. This bill permits them to do so.” 78 Cong. Rec. 11729 (1934).

Congress was well aware that the proposed preference would result in employment disadvantages within the BIA for non-Indians. Not only was this displacement unavoidable if room were to be made for Indians, but it was explicitly determined that gradual replacement of non-Indians with Indians within the Bureau was a desirable feature of the entire program for self-government. Since 1934, the BIA has implemented the preference with a fair degree of success. The percentage of Indians employed in the Bureau rose from 34% in 1934 to 57% in 1972. This reversed the former downward trend, see n. 16, supra, and was due, clearly, to the presence of the 1934 Act. The Commissioner’s extension of the preference in 1972 to promotions within the BIA was designed to bring more Indians into positions of responsibility and, in that regard, appears to be a logical extension of the congressional intent. See Freeman v. Morton, 162 U. S. App. D. C. 358, 499 F. 2d 494 (1974), and n. 5, supra.

It is against this background that we encounter the first issue in the present case: whether the Indian preference was repealed by the Equal Employment Opportunity Act of 1972. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, was the first major piece of federal legislation prohibiting discrimination in private employment on the basis of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a). Significantly, §§ 701 (b) and 703 (i) of that Act explicitly exempted from its coverage the preferential employment of Indians by Indian tribes or by industries located on or near Indian reservations. 42 U. S. C. §§ 2000e (b) and 2000e-2 (i). This exemption reveals a clear congressional recognition, within the framework of Title VII, of the unique legal status of tribal and reservation-based activities. The Senate sponsor, Senator Humphrey, stated on the floor by way of explanation:

“This exemption is consistent with the Federal Government’s policy of encouraging Indian employment and with the special legal position of Indians.” 110 Cong. Rec. 12723 (1964).

The 1964 Act did not specifically outlaw employment discrimination by the Federal Government. Yet the mechanism for enforcing longstanding Executive Orders forbidding Government discrimination had proved ineffective for the most part. In order to remedy this, Congress, by the 1972 Act, amended the 1964 Act and proscribed discrimination in most areas of federal employment. See n. 6, supra. In general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government. As stated in the House Report:

“To correct this entrenched discrimination in the Federal service, it is necessary to insure the effective application of uniform, fair and strongly enforced policies. The present law and the proposed statute do not permit industry and labor organizations to be the judges of their own conduct in the area of employment discrimination. There is no reason why government agencies should not be treated similarly. . . H. R. Rep. No. 92-238, on H. R. 1746, pp. 2^-25 (1971).

Nowhere in the legislative history of the 1972 Act, however, is there any mention of Indian preference.

Appellees assert, and the District Court held, that since the 1972 Act proscribed racial discrimination in Government employment, the Act necessarily, albeit sub silentio, repealed the provision of the 1934 Act that called for the preference in the BIA of one racial group, Indians, over non-Indians:

“When a conflict such as in this case, is present, the most recent law or Act should apply and the conflicting Preferences passed some 39 years earlier should be impliedly repealed.” Brief for Appellees 7.

We disagree. For several reasons we conclude that Congress did not intend to repeal the Indian preference and that the District Court erred in holding that it was repealed.

First: There are the above-mentioned affirmative provisions in the 1964 Act excluding coverage of tribal employment and of preferential treatment by a business or enterprise on or near a reservation. 42 U. S. C. §§ 2000e (b) and 2000e-2 (i). See n. 19, supra. These 1964 exemptions as to private employment indicate Congress’ recognition of the longstanding federal policy of providing a unique legal status to Indians in matters concerning tribal or “on or near” reservation employment. The exemptions reveal a clear congressional sentiment that an Indian preference in the narrow context of tribal or reservation-related employment did not constitute racial discrimination of the type otherwise proscribed. In extending the general anti-discrimination machinery to federal employment in 1972, Congress in no way modified these private employment preferences built into the 1964 Act, and they are still in effect. It would be anomalous to conclude that Congress intended to eliminate the longstanding statutory preferences in BIA employment, as being racially discriminatory, at the very same time it was reaffirming the right of tribal and reservation-related private employers to provide Indian preference. Appellees’ assertion that Congress implicitly repealed the preference as racially discriminatory, while retaining the 1964 preferences, attributes to Congress irrationality and arbitrariness, an attribution we do not share.

■ Second: Three months after Congress passed the 1972 amendments, it enacted two new Indian preference laws. These were part of the Education Amendments of 1972, 86 Stat. 235, 20 U. S. C. §§ 887c (a) and (d), and § 1119a (1970 ed., Supp. II). The new laws explicitly require that Indians be given preference in Government programs for training teachers of Indian children. It is improbable, to say the least, that the same Congress which affirmatively approved and enacted these additional and similar Indian preferences was, at the same time, con-deinning the BIA preference as racially discriminatory. In the total absence of any manifestation of supportive intent, we are loathe to imply this improbable result.

Third: Indian preferences, for many years, have been treated as exceptions to Executive Orders forbidding Government employment discrimination. The 1972 extension of the Civil Rights Act to Government employment is in large part merely a codification of prior anti-discrimination Executive Orders that had proved ineffective because of inadequate enforcement machinery. There certainly was no indication that the substantive proscription against discrimination was intended to be any broader than that which previously existed. By codifying the existing anti-discrimination provisions, and by providing enforcement machinery for them, there is no reason to presume that Congress affirmatively intended to erase the preferences that previously had coexisted with broad anti-discrimination provisions in Executive Orders.

Fourth: Appellees encounter head-on the “cardinal rule . . . that repeals by implication are not favored.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936) ; Wood v. United States, 16 Pet. 342-343, 363 (1842); Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U. S. 186, 193 (1968). They and the District Court read the congressional silence as effectuating a repeal by implication. There is nothing in the legislative history, however, that indicates affirmatively any congressional intent to repeal the 1934 preference. Indeed, as explained above, there ■is ample independent evidence that the legislative intent was to the contrary.

This is a prototypical case where an adjudication of repeal by implication is not appropriate. The preference is a longstanding, important component of the Government’s Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem. Any perceived conflict is thus more apparent than real.

In the absence of some affirmative showing of an intention to repeal, the only-permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Georgia v. Pennsylvania R. Co., 324 U. S. 439, 456—457 (1945). Clearly, this is not the case'here. .A provision aimed at furthering Indian self-government by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians.

Furthermore, the- Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U. S. 753, 758 (1961); Rodgers v. United States, 185 U. S. 83, 87-89 (1902).

The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible .... The intention of the legislature to repeal ‘must be clear and manifest.’ ” United States v. Borden Co., 308 U. S. 188, 198 (1939). In light of the factors indicating no repeal, we simply cannot conclude that Congress consciously abandoned its policy of furthering Indian self-government when it passed the 1972 amendments.

We therefore hold that the District Court erred in ruling that the Indian preference was repealed by the 1972 Act.

IV

We still must decide whether, as the appellees contend, the preference constitutes invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497 (1954). The District Court, while pretermitting this issue, said: “[W]e could well hold that the statute must fail on constitutional grounds.” 359 F. Supp., at 591.

Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a “guardian-ward” status, to legislate on behalf of-federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, § 8, cl. 3, provides Congress with the power to “regulate Commerce . . . with the Indian Tribes,” and thus, to this extent, singles Indians out as a proper subject for separate legislation. Article II, § 2, cl. 2, gives the President the power, by and with the advice and consent of the Senate, to make treaties. This has often been the source of the Government's power to deal with the Indian tribes. The Court has described the origin and nature of the special relationship:

“In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic. . . .” Board of County Comm’rs v. Seber, 318 U. S. 705, 715 (1943).

See also United States v. Kagama, 118 U. S. 375, 383-384 (1886).

Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U. S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. See Simmons v. Eagle Seelatsee, 244 F. Supp. 808, 814 n. 13 (ED Wash. 1965), aff’d, 384 U. S. 209 (1966).

It is in this historical and legal context that the constitutional validity of the Indian preference is to be determined. As discussed above, Congress in 1934 determined that proper fulfillment of its trust required turning over to the Indians a greater control of their own destinies. The overly paternalistic approach of prior years had proved both exploitative and destructive of Indian interests. Congress was united in the belief that institutional changes were required. An important part of the Indian Reorganization Act was the preference provision here at issue.

Contrary to the characterization made by appellees, this preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be “an Inhabitant of that State for which he shall be chosen/’ Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians. The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. See n. 24, supra. In the sense that there is no other group of people favored in this manner, the legal status of the BIA is truly mi generis. Furthermore, the preference applies only to employment in the Indian service. The preference does not cover any other Government agency or activity, and we need not consider the obviously more difficult question that would be presented by a blanket exemption for Indians from all civil service examinations. Here, the preference is reasonably and directly related to a legitimate, nonracially based goal. This is the principal characteristic that generally is absent from proscribed forms of racial discrimination.

On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment. See, e. g., Board of County Comm’rs v. Seber, 318 U. S. 705 (1943) (federally granted tax immunity); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973) (same); Simmons v. Eagle Seelatsee, 384 U. S. 209 (1966), aff’g 244 F. Supp. 808 (ED Wash. 1965) (statutory definition of tribal membership, with resulting interest in trust estate); Williams v. Lee, 358 U. S. 217 (1959) (tribal courts and their jurisdiction over reservation affairs). Cf. Morton v. Ruiz, 415 U. S. 199 (1974) (federal welfare benefits for Indians “on or near” reservations). This unique legal status is of long standing, see Cherokee Nation v. Georgia, 5 Pet. 1 (1831); Worcester v. Georgia, 6 Pet. 515 (1832), and its sources are diverse. See generally U. S. Dept, of Interior, Federal Indian Law (1958); Comment, The Indian Battle for Self-Determination, 58 Calif. L. Rev. 445 (1970). As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed. Here, where the preference is reasonable and rationally designed to further Indian self-government, we cannot say that Congress’ classification violates due process.

The judgment of the District Court is reversed and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

       The Indian Health Service was transferred in 1954 from the Department of the Interior to the Department of Health, Education, and Welfare. Act of Aug. 5, 1954, § 1, 68 Stat. 674, 42 U. S. C. § 2001. Presumably, despite this transfer, the reference in § 12 to the “Indian Office” has continuing application to the Indian Health Service. See 5 CFR § 213.3116 (b) (8).

       There are earlier and more narrowly drawn Indian preference statutes. 25 U. S. C. §§ 44, 45, 46, 47, and 274. For all practical purposes, these were replaced by the broader preference of § 12. Although not directly challenged in this litigation, these statutes, under the District Court’s decision, clearly would be invalidated.

       The directive stated:
      “The Secretary of the Interior announced today [June 26, 1972] he has approved the Bureau’s policy to extend Indian Preference to training and to filling vacancies by original appointment, reinstatement and promotions. The new policy was discussed with the National President of the National Federation of Federal Employees under National Consultation Rights NFFE has with the Department. Secretary Morton and I jointly stress that careful attention must be given to protecting the Rights of non-Indian employees. The new policy provides as follows: Where two or more candidates who meet the established qualification requirements are available for filling a vacancy. If one of them is an Indian, he shall be given preference in filling the vacancy. This new policy is effective immediately, and is incorporated into all existing programs such as the Promotion Program. Revised Manual releases will be issued promptly for review and comment. You should take immediate steps to notify all employees and recognized unions of this policy.” App. 52-53.

       The appellees state that none of them is employed on or near an Indian reservation. Brief for Appellees 8. The District Court described the appellees as “teachers ... or programmers, or in computer work.” 359 F. Supp. 585, 587 (NM 1973).

         The specific question whether § 12 of the 1934 Act authorizes a preference in promotion as well as in initial hiring was not decided by the District Court' and is not now before us. We express no opinion on this issue. See Freeman v. Morton, 162 U. S. App. D. C. 358, 499 F. 2d 494 (1974). See also Mescalero Apache Tribe v. Mickel, 432 F. 2d 956 (CA10 1970), cert. denied, 401 U. S. 981 (1971) (preference held inapplicable to reduction in force).

       Section 2000e-16 (a) reads:
      “All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonap-propriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.”

       Act of June 30, 1834, § 9, 4 Stat: 737, 25 U. S. C. §45:
      “[I]n all cases of the appointments of interpreters or other persons employed for the benefit of the Indians, a preference shall be given to persons of Indian descent, if such can be found, who are properly qualified for the execution of the duties.”

       Act of May 17, 1882, § 6, 22 Stat. 88, and Act of July 4, 1884, § 6, 23 Stat. 97, 25 U. S. C. § 46 (employment of clerical, mechanical, and other help on reservations and about agencies); Act of Aug. 15, 1894, § 10, 28 Stat. 313, 25 U. S. C. § 44 (employment of herders, teamsters, and laborers, “and where practicable in all other employments” in the Indian service); Act of June 7, 1897, § 1, 30 Stat. 83, 25 U. S. C. § 274 (employment as matrons, farmers, and industrial teachers in Indian schools); Act of June 25, 1910, § 23, 36 Stat. 861, 25 U. S. C„ § 47 (general preference as to Indian labor and products of Indian industry).

       Senator Wheeler, cosponsor of the 1934 Act, explained the need for a preference as follows:
      “We are setting up in the United States a civil service rule which prevents Indians from managing their own property. It is an entirely different service from anything else in the United States, because these Indians own this property. It belongs to them. What the policy of this Government is and what it should be is to teach these Indians to manage their own business and control their own funds and to administer their own property, and the civil service has worked very poorly so far as the Indian Service is concerned ... .” Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934).

       A letter, contained in the House Report to the 1934 Act, from President F. D. Roosevelt to Congressman Howard states:
      “We can and should, without further delay, extend to the Indian the fundamental rights of political liberty and local self-government and the opportunities of education and economic assistance that they require in order to attain a wholesome American life. This is but the obligation of honor of a powerful nation toward a people living among us and dependent upon our protection.” H. R. Rep. No. 1804, 73d Cong., 2d Sess., 8 (1934).

       “If the Indians are exposed to any danger, there is none greater than the residence among them of unprincipled white men.” H. R. Rep. No. 474, 23d Cong., 1st Sess., 98 (1834) (letter dated Feb. 10, 1834, from Indian Commissioners to the Secretary of War).

       As explained by John Collier, Commissioner of Indian Affairs: “[T]his bill is designed not to prevent the absorption of Indians in white communities, but rather to provide for those Indians unwilling or unable to compete in the white world some measures of self-government in their own affairs.” Hearing on S. 2755 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 1, p. 26 (1934).

       Hearings on H. R. 7902, Readjustment of Indian Affairs, before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 1-7 (1934) (hereafter House Hearings). See also Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152-153, n. 9 (1973).

       House Hearings 491-497.

       “[Section 12] was intended to integrate the Indian into the government service connected with the administration of his affairs. Congress was anxious to promote economic and political self-determination for the Indian.” Mescalero Apache Tribe v. Hickel, 432 F. 2d, at 960 (footnote omitted).

       “The bill admits qualified Indians to the position [sic] in their own service.
      “Thirty-four years ago, in 1900, the number of Indians holding regular positions in the Indian Service, in proportion to the total of positions, was greater than it is today.
      “The reason primarily is found in the application of the generalized civil service to the Indian Service, and the consequent exclusion of Indians from their own jobs.” House Hearings 19 (memorandum dated Feb. 19, 1934, submitted by Commissioner Collier to the Senate and House Committees on Indian Affairs).

       Congressman Carter, an opponent of the bill, placed in the Congressional Record the following observation by Commissioner Collier at the Committee hearings:
      “[W]e must not blind ourselves to the fact that the effect of this bill if worked out would unquestionably be to replace white employees by Indian employees. I do not know how fast, but ultimately it ought to go very far indeed.” 78 Cong. Rec. 11737 (1934).

       “It should be possible for Indians to enter the service of their own people without running the gauntlet of competition with whites for these positions. Indian progress and ambition will be enormously strengthened as soon as we adopt the principle that the Indian Service shall gradually become, in fact as well as in name, an Indian service predominantly in the hands of educated and competent Indians.” Id., at 11731 (remarles of Cong. Howard).

       Section 701 (b) excludes “an Indian Tribe” from the Act’s definition of “employer.” Section 703 (i) states:
      “Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.”

       Senator Mundt supported these exemptions on the Senate floor by claiming that they would allow Indians “to benefit from Indian preference programs now in operation or later to be instituted.” 110 Cong. Rec. 13702 (1964).

       The 1964 Act, however, did contain a proviso, expressed in somewhat precatory language:
      “That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin.” 78 Stat. 254.
      This statement of policy was re-enacted as 5 U. S. C. § 7151, 80 Stat. 523 (1966), and the 1964 Act’s proviso was repealed, id., at 662.

       “This disproportionatte [sic] distribution of minoriijies and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government’s failure to pursue its policy of equal opportunity.
      “A critical defect of the Federal equal employment program has been the failure of the complaint process. That process has impeded rather than advanced the goal of the elimination of discrimination in Federal employment. . . .” H. R. Rep. No. 92-238, on H. R. 1746, pp. 23-24 (1971).

       See, e. g., Exec. Order No. 7423, July 26, 1936, 1 Fed. Reg. 885-886, 3 CFR 189 (1936-1938 Comp.). When President Eisenhower issued an Order prohibiting' discrimination on the basis of race in the civil service, Exec. Order No. 10577, § 4.2, Nov. 22, 1954, 19 Fed. Reg. 7521, 3 CFR 218 (1954-1958 Comp.), he left standing earlier Executive Orders containing exceptions for the Indian service. Id., §301. See also 5 CFR § 213.3112 (a) (7), which provides a civil service exemption for:
      “All positions in the Bureau of Indian -Affairs and other positions in the Department of the Interior directly and primarily related to the providing of services to Indians when filled by the appointment of Indians who are one-fourth or more Indian blood.”
      See also 5 CFR §213.3116 (b)(8) (Indian Health Services).

       The preference is not directed towards a “racial” group consisting of “Indians”; instead, it applies only to members of “federally recognized” tribes. This operates to exclude many individuals who are racially to be classified as “Indians.” In this , sense, the preference is political rather than racial in nature. The eligibility criteria appear in 44 BIAM 335, 3.1:
      “.1 Policy — An Indian has preference in appointment in the Bureau. To be eligible for preference in appointment, promotion, and training, an individual must be one-fourth or more degree Indian blood and be a member of a Federally-recognized tribe. It is the policy for promotional consideration that where two or more candidates who meet the established qualification requirements are available for filling a vacancy, if one of them is an Indian, he shall be given preference in filling the vacancy. In accordance with the policy statement approved by the Secretary, the Commissioner may grant exceptions to this policy by approving the selection and appointment of non-Indians, when he considers it in the best interest, of the Bureau.
      “This program does not restrict the right of management to fill positions by methods other than through promotion. Positions may be filled by transfers, reassignment, reinstatement, or initial appointment.” App. 92.

       Senator Wheeler described the BIA as “an entirely different service from anything else in the United States.” Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934).


source: Caselaw Access Project

author: Mr. Justice Blackmun Mr. Justice Marshall, Mr. Justice Brennan, Mr. Justice White,

license: Public Domain

text:
    GILMORE et al. v. CITY OF MONTGOMERY, ALABAMA, et al.
    No. 72-1517.
    Argued January 15-16, 1974
    Decided June 17, 1974

      BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and RehNQUist, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 576. BreNNAN, J., filed an opinion concurring in the judgment, post, p. 577. White, J., filed an opinion concurring in the judgment, in which Douglas, J., joined, post, p. 581.

      Joseph J. Levin, Jr., argued the cause for petitioners. With him on the briefs was Morris S. Dees, Jr.

      Joseph D. Phelps argued the cause for respondents. With him on the brief were Drayton N. Hamilton and Walter J. Knabe.

   Mr. Justice Blackmun

delivered the opinion of the Court.

The present phase of this prolonged litigation concerns the propriety of a federal court’s enjoining a municipality from permitting the use of public park recreational facilities by private segregated school groups and by other non-school groups that allegedly discriminate in their membership on the basis of race. We granted certiorari to consider this important issue. 414 U. S. 907 (1973).

I

Petitioners are Negro citizens of Montgomery, Alabama. In December 1958, now over 15 years ago, they instituted this class action to desegregate Montgomery’s public parks. The defendants are the city, its Board of Commissioners and the members thereof, the Parks and Recreation Board and its members, and the Superintendent of the Parks and Recreational Program.

By their original complaint, the petitioners specifically challenged, on Fourteenth Amendment due process and equal protection grounds, a Montgomery ordinance (No. 21-57, adopted June 4, 1957) which made it a misdemeanor, subject to fine and imprisonment, “for white and colored persons to enter upon, visit, use or in any way occupy public parks or other public houses or public places, swimming pools, wadding [sic] pools, beaches, lakes or ponds except those assigned to their respective races.” Both declaratory and injunctive relief were requested. On September 9, 1959, the District Court entered its judgment that the ordinance was unconstitutional and enjoined the defendants from enforcing the ordinance “or any custom, practice, policy or usage which may require plaintiffs, or any other Negroes similarly situated, to submit to enforced segregation solely because of race or color in their use of any public parks owned and operated by the City of Montgomery, Alabama.” The judgment was accompanied by a memorandum opinion. 176 F. Supp. 776 (MD Ala. 1959). On appeal, the Fifth Circuit affirmed but ordered the judgment modified to provide that the District Court retain jurisdiction. 277 F. 2d 364, 368 (1960). The trial court, accordingly, ruled that it “will and does hereby retain jurisdiction of this cause until further order.”

In 1970, the petitioners sought to reopen the litigation. They filed a motion asking, among other relief, that the respondents be cited for contempt “for deliberately avoiding and violating this Court’s Judgment and Order in this case.” The motion contained allegations that some of the municipal parks had been reopened “in such a manner to avoid the total and full integration of said parks”; that the city had conspired with the Montgomery YMCA to segregate swimming and other recreational facilities and programs; that recreational facilities were unequally allocated as between white and Negro neighborhoods; and that the city discriminated in its employment of personnel in recreational programs. The basis for these claims arose from other, separate litigation initiated in 1969 and resulting in the granting of affirmative relief to the plaintiffs in that suit. See Smith v. Young Men’s Christian Assn., 316 F. Supp. 899 (MD Ala. 1970), aff’d as modified, 462 F. 2d 634 (CA5 1972). In that action the District Court found that the “coordinated effort” of the city and of the YMCA, 316 F. Supp., at 908, and an agreement between them, reached shortly before the closing of the city parks and the entry of the court’s 1959 decree, had effectuated “the perpetuation of segregated recreational facilities and programs in the City of Montgomery,” id., at 909, and that it was “unmistakably clear that its purpose was to circumvent the Supreme Court’s and this Court’s desegregation rulings in the area of public recreation.” Id., at 908. As summarized by the Court of Appeals, the District Court concluded:

“[T]he YMCA, as a result of the cooperative agreement, has been performing a statutorily declared 'public function’; the Montgomery Park and Recreation Board has, in effect, transferred some of its statutory authority and responsibility to the YMCA, thereby investing the YMCA with a municipal character; and therefore the YMCA has been serving as a municipal rather than a private agency in assisting the Park Board in providing recreational programs for the city.
“[T]he YMCA’s discriminatory conduct denied the plaintiffs their Fourteenth Amendment rights to Equal Protection of the law; under the facts of this case the plaintiffs’ showing of 'state action’ satisfies the requirement under Title 42; U. S. C. Section 1983 that the YMCA’s conduct be 'under color of law.’ ” 462 F. 2d, at 641-642.

The modification by the Court of Appeals related only to the disapproval of a provision in the District Court’s order directing a specific Negro-white ratio in the YMCA’s board and executive committee. No review was sought here.

The claims raised by the petitioners in their 1970 motion were settled by agreement dated January 29, 1971. On July 29, the respondents filed their first written progress report. On September 8, the petitioners filed a "Motion for Supplemental Relief.” App. 15. This motion forms the basis for the present phase of the litigation. The petitioners complained that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. They requested injunctive relief against “the use of City owned and operated recreational facilities by any private school group, club, or organization which is racially segregated or which has a racially discriminatory admissions policy.”

The District Court granted the petitioners the relief they requested. 337 F. Supp. 22 (MD Ala. 1972). The court reasoned that Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de jacto or de jure segregated private schools was inconsistent with that duty because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to. the detriment of establishing the constitutionally mandated unitary public school system. The court, consequently, enjoined the city and its officials “from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy.” Id., at 26. The court went on, however, with sparse findings and brief discussion, and similarly enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities “by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy.” Ibid

On appeal, the Court of Appeals reversed in part and remanded the case with directions. 473 F. 2d 832 (CA5 1973). It sustained that part of the injunction which restrained the use of city facilities by segregated private schools when that use was "exclusive” and not in common with other citizens. Id., at 837. The court ruled, however, that “nonexclusive enjoyment” of those facilities by private school children “was not proven to present a sufficient threat to desegregated public education to support an injunction restraining the clear personal right of the affected children to enjoy such usage in common with the rest of the public.” Ibid. With respect to that portion of the District Court’s order concerning other private nonschool groups, the Court of Appeals held that there was no “symbiotic relationship” of the kind present and condemned in Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). Consequently, it held that under Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), that portion of the District Court’s order dealing with nonschool groups had to be reversed because the injunction impermissibly intruded upon the freedom of association of citizens who were members of private groups. The court, accordingly, ordered deletion of certain paragraphs of the injunctive order and the clarification of others. 473 F. 2d, at 839-840. The District Court complied with that mandate and, in particular, added the following paragraph to its injunctive order:

“The injunction issued by this Court does not prohibit the City of Montgomery from permitting non-exclusive access to public recreational facilities and general government services by private schools or school affiliated groups.”

The plaintiffs petitioned for certiorari; the defendants did not cross-petition.

II

The Equal 'Protection Clause of the Fourteenth Amendment does not prohibit the “[individual invasion of individual rights.” Civil Bights Cases, 109 U. S. 3, 11 (1883). It does proscribe, however, state action “of every kind” that operates to deny any citizen the equal protection of the laws. Ibid. This proscription on state action applies de jacto as well as de jure because “[c] on-duct that is formally 'private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.” Evans v. Newton, 382 U. S. 296, 299 (1966). In the present case we must determine whether the city of Montgomery engaged in discriminatory activity violative of the parks desegregation order. We must also decide whether the city’s involvement in the alleged discriminatory activity of segregated private schools and other private groups, through its providing recreational facilities, constitutes “state action” subject to constitutional limitation.

A

The Court of Appeals affirmed the District Court insofar as the latter enjoined the “exclusive possession of public recreational facilities such as football stadiums, baseball diamonds, basketball courts, and tennis courts for official athletic contests and similar functions sponsored by racially segregated private schools.” 473 F. 2d, at 836-837. The boundaries of this “exclusive” use approach, however, are not self-evident. We find the concept helpful not so much as a controlling legal principle but as a description of a type of use and, in the context of this case, suggestive of a means of allocating public recreational facilities. The term “exclusive use” implies that an entire facility is exclusively, and completely, in the possession, control, and use of a private group. It also implies, without mandating, a decision-making role for the city in allocating such facilities among private and, for that matter, public groups.

Upon this understanding of the term, we agree with petitioners that the city’s policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, “enclaves of segregation” and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional duty to eliminate every “custom, practice, policy or usage” reflecting an “impermissible obeisance to the now thoroughly discredited doctrine of 'separate but equal.’ ” Watson v. Memphis, 373 U. S. 526, 538 (1963). This obviously meant that discriminatory practices in Montgomery parks and recreational facilities were to be eliminated “root and branch,” to use the phrase employed in Green v. County School Board of New Kent County, 391 U. S. 430, 438 (1968).

Instead of prompt and orderly compliance with the District Court’s mandate, however, the city of Montgomery engaged in an elaborate subterfuge to anticipate and circumvent the court’s order. Segregated recreational programs continued to be presented through the conveniently cooperating private agency of the local YMCA. All public swimming pools were closed allegedly to prevent the mixing of races. Facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. In light of these facts, made part of the record in this case, it was entirely appropriate for the District Court carefully to scrutinize any practice or policy that would tend to abandon to segregated private groups facilities normally open to members of all races on an equal basis. Here, the exclusive use and control of city recreational facilities, however temporary, by private segregated schools were little different from the city’s agreement with the YMCA to run a “coordinated” but, in effect, segregated recreational program. Such use and control carried the brand of “separate but equal” and, in the circumstances of this case, were properly terminated by the District Court.

Particularly important is the fact that the city’s policies operated directly to contravene an outstanding school desegregation order. See Carr v. Montgomery County Board of Education, 232 F. Supp. 705 (MD Ala. 1964); 253 F. Supp. 306 (1966); 289 F. Supp. 647 (1968), aff’d as modified, 400 F. 2d 1 and 402 F. 2d 782, 784, 787 (CA5 1968), rev’d and remanded sub nom. United States v. Montgomery County Board of Education, with directions to affirm the judgment of the District Court, 395 U. S. 225 (1969). Certainly, the city’s officials were aware of this order and were responsible for seeing that no actions on their part would significantly impede the progress of school desegregation in the city. Cooper v. Aaron, 358 U. S. 1 (1958); Green v. County School Board of New Kent County, 391 U. S., at 437-438; Alexander v. Holmes County Board of Education, 396 U. S. 19, 20 (1969). Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. “[T]he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’ ” Cooper v. Aaron, 358 U. S., at 17. This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has “a significant tendency to facilitate, reinforce, and support private discrimination.” Norwood v. Harrison, 413 U. S. 455, 466 (1973). The constitutional obligation of the State “requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination.” Id., at 467.

Here, the city’s actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs. The city’s provision of stadiums and recreational fields resulted in capital savings for those schools and enabled them to divert their own funds to other educational programs. It also provided the opportunity for the schools to operate concessions that generated revenue. We are persuaded, as were both the District Court and the Court of Appeals, that this assistance significantly tended to undermine the federal court order mandating the establishment and maintenance of a unitary school system in Montgomery. It therefore was wholly proper for the city to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools and by groups affiliated with such schools.

B

Although the Court of Appeals ruled out the exclusive use of city facilities by private schools, it went on to modify the District Court order “to make clear that the City of Montgomery is not prohibited'from permitting nonexclusive access to public recreational facilities and general government services by private schools or school affiliated groups,” 473 F. 2d, at 840, or from permitting access to these facilities by private organizations that have a racially discriminatory admissions policy. Id., at 839. Upon this record, we are unable to draw a conclusion as to whether the use of zoos, museums, parks, and other recreational facilities by private school groups in common with others, and by private nonschool organizations, involves government so directly in the actions of those users as to warrant court intervention on constitutional grounds.

It would be improper to determine at this stage the appropriateness of further relief in all the many and varied situations where facilities are used in common by school groups or used exclusively or in common by private groups. It is possible that certain uses of city facilities will be judged to be in contravention of the parks desegregation order or the school desegregation order, or in some way to constitute impermissible “state action” ascribing to the city the discriminatory actions of the groups. The record before us does not contain sufficient facts upon which to predicate legal judgments of this kind. The questions to be resolved and the decisions to be made rest upon careful identification of the different types of city facilities that are available and the various uses to which they might be put by private groups.

The difficulties that confront us on this record are readily apparent. Under appropriate circumstances, the District Court might conclude, as it did in the instance of exclusive usé by private schools, that access in common to city facilities by private school groups would indeed contravene the school desegregation order. For example, all-white private school basketball teams might be invited to participate in a tournament conducted on public recreational facilities with desegregated private and public school teams. Because “discriminatory treatment exerts a pervasive influence on the entire educational process,” Norwood v. Harrison, 413 U. S., at 469, citing Brown v. Board of Education, 347 U. S. 483 (1954), such assistance, although proffered in common with fully desegregated groups, might so directly impede the progress of court-ordered school desegregation within the city that it would be appropriate to fashion equitable relief “adjusting and reconciling public and private needs.” Brown v. Board of Education, 349 U. S. 294, 300 (1955). The essential finding justifying further relief would be a showing of direct impairment of an outstanding school desegregation order. Cooper v. Aaron, 358 U. S., at 17; Bush v. Orleans Parish School Board, 364 U. S. 500 (1960); Brown v. South Carolina State Board of Education, 296 F. Supp. 199 (SC), aff’d, 393 U. S. 222 (1968); Poindexter v. Louisiana Financial Assistance Comm’n, 275 F. Supp. 833 (ED La. 1967), aff’d, 389 U. S. 571 (1968); Lee v. Macon County Board of Education, 267 F. Supp. 458 (MD Ala.), aff’d, sub nom. Wallace v. United States, 389 U. S. 215 (1967); Norwood v. Harrison, supra.

Relief would also be appropriate if a particular use constitutes a vestige of the type of state-sponsored racial segregation in public recreational facilities that was prohibited in the parks decree and likewise condemned in Watson v. Memphis, 373 U. S. 526 (1963). See also Dawson v. Mayor and City Council of Baltimore, 220 F. 2d 386 (CA4), aff’d, 350 U. S. 877 (1955); Muir v. Louisville Park Theatrical Assn., 347 U. S. 971 (1954); Holmes v. City of Atlanta, 350 U. S. 879 (1955); New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958). For example, the record contains indications that there are all-white private and all-Negro public Dixie Youth and Babe Ruth baseball leagues for children, all of which use city-provided ballfields and lighting, balls, bats, mitts, and other aid. Were the District Court to determine that this dual system came about as a means of evading the parks decree, or of serving to perpetuate the separate-but-equal use of city facilities on the basis of race, through the aid and assistance of the city, further relief would be appropriate.

The problem of private group use is much more complex. The Court of Appeals relied on Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), in concluding that the use of city facilities by private clubs did not reflect a “symbiotic relationship” between government and those groups so as to constitute state action. 473 F. 2d, at 838-839.

We feel that Moose Lodge is not fully applicable here. In that case, we generally followed the approach taken in Burton v. Wilmington Parking Authority, supra, where it was stated:

“Owing to the very 'largeness’ of government, a multitude of relationships might appear to some to fall within the Amendment’s embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present.” 365 U. S., at 725-726.

In Moose Lodge the litigation was directly against a private organization, and it was alleged that the organization’s racially discriminatory policies constituted state action. We held that there was no state action in the mere fact that the fraternal organization’s beverage bar was licensed and regulated by the State. In contrast, here, as in Burton, the question of the existence of state action centers in the extent of the city’s involvement in discriminatory actions by private agencies using public facilities, and in whether that involvement makes the city “a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.” 365 U. S., at 725. Because the city makes city property available for use by private entities, this case is more like Burton than Moose Lodge. The question then is whether there is significant state involvement in the private discrimination alleged. Reitman v. Mulkey, 387 U. S. 369 (1967); Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U. S. 296 (1966); Moose Lodge No. 107 v. Irvis, supra. “The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever.” 407 U. S., at 173. Traditional state monopolies, such as electricity, water, and police and fire protection — all generalized governmental services — do not by their mere provision constitute a showing of state involvement in invidious discrimination. Norwood v. Harrison, 413 U. S., at 465; Moose Lodge No. 107 v. Irvis, 407 U. S., at 173. The same is true of a broad spectrum of municipal recreational facilities: parks, playgrounds, athletic facilities, amphitheaters, museums, zoos, and the like. Cf. Evans v. Newton, 382 U. S., at 302. It follows, therefore, that the portion of the District Court’s order prohibiting the mere use of such facilities by any segregated “private group, club or organization” is invalid because it was not predicated upon a proper finding of state action.

If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation. Here, for example, petitioners allege that the city engages in scheduling softball games for an all-white church league and provides balls, equipment, fields, and lighting. The city’s role in that situation would be dangerously close to what was found to exist in Burton, where the city had “elected to place its power, property and prestige behind the admitted discrimination.” 365 U. S., at 725. We are reminded, however, that the Court has never attempted to formulate “an infallible test for determining whether the State . . . has become significantly involved in private discrimina^ tions” so as to constitute state action. Reitman v. Mulkey, 387 U. S., at 378. “ 'Only by sifting facts and weighing circumstances’ on a case-by-case basis can a ‘nonobvious involvement of the State in private conduct be attributed its true significance.’ ” Ibid., quoting Burton, 365 U. S., at 722. This is the task for the District Court on remand.

III

We close with this word of caution. It should be obvious that the exclusion of any person or group — all-Negro, all-Oriental, or all-white — -from public facilities infringes upon the freedom of the individual to associate as he chooses. Mr. Justice Douglas emphasized this in his dissent, joined by Mr. Justice Marshall, in Moose Lodge. He observed: “The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires.” 407 U. S., at 179-180. The freedom to associate applies to the beliefs we share, and to those we consider reprehensible. It tends to produce the diversity of opinion that oils the machinery of democratic government and insures peaceful, orderly change. Because its exercise is largely dependent on the right to own or use property, Healy v. James, 408 U. S. 169, 181-183 (1972), any denial of access to public facilities must withstand close scrutiny and be carefully circumscribed. Certainly, a person’s mere membership in an organization which possesses a discriminatory admissions policy would not alone be ground for his exclusion from public facilities. Having said this, however, we must also be aware that the very exercise of the freedom to associate by some may serve to infringe that freedom for others. Invidious discrimination takes its own toll on the freedom to associate, and it is not subject to affirmative constitutional protection when it involves state action. Norwood v. Harrison, 413 U. S., at 470.

The judgment of the Court of Appeals is therefore reversed in part. The case is remanded to that court with directions to remand it in turn to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Marshall,

concurring in part and dissenting in part.

Although I am in general agreement with the views expressed in my Brother White's opinion, I wish to address certain other considerations which I believe should govern appellate review of the order entered by the District Court in this case. That court, which has an unfortunately longstanding and by now intimate familiarity with the problems presented in this case, issued the supplemental relief at issue here in response to a motion by petitioners bringing to its attention the practice of the city of Montgomery of allowing private schools and clubs with racially discriminatory admissions policies or with segregated memberships to use football facilities maintained at city expense. For all that appears in the record, this practice, and the related practice of allowing private segregated schools and clubs to use baseball fields, basketball courts, and athletic equipment maintained and purchased at city expense, were the only problems before the District Court and the only problems intended to be cured by its supplemental order.

Both the Court of Appeals and this Court, rather than limiting their review of the order in conformity with its intended scope, have sought to project the order to a wide variety of problems not before the District Court— including so-called nonexclusive access by private school groups or nonschool organizations to zoos, museums, parks, nature walks, and other similar municipal facilities — and to review the order as so projected.

By rendering an advisory opinion on matters never presented to the District Court, the' Court of Appeals and this Court have attempted to solve in the abstract problems which, in my view, should more appropriately be entrusted in large measure to the sound discretion of the District Court Judge who has lived with this case for so many years and who has a much better appreciation both of the extent to which these other matters are actual problems in the city of Montgomery and of the need for injunctive relief to resolve these problems to the extent they exist.

Since I find the District Court’s order a permissible and appropriate remedy for the instances of unconstitutional state action brought to its attention, I would sustain and reinstate its order in its entirety.

Mr. Justice Brennan,

concurring in the judgment.

The Court today affirms the Court of Appeals’ judgment insofar as it affirmed paragraphs 1 and 2 of the District Court’s order, ante, at 563-564, n. 6, as applied to enjoin respondents from permitting private segregated school groups to make “exclusive use” of Montgomery’s recreational facilities. Unlike the Court, I do not think that remand is required for a determination whether certain “nonexclusive uses” by segregated school groups should also be proscribed, for I would also sustain paragraphs 1 and 2 insofar as they enjoin any school-sponsored or school-directed uses of the city recreational facilities that enable private segregated schools to duplicate public school operations at public expense.

Norwood v. Harrison, 413 U. S. 455 (1973), struck down a state program which loaned textbooks to students without regard to whether the students attended private schools with racially discriminatory- policies. Finding that free textbooks, like tuition grants to private school students, were a “form of financial assistance inuring to the benefit of the private schools themselves,” id., at 464, Norwood held that the State could not, consistent with the Equal Protection Clause, grant aid that had “a significant tendency to facilitate, reinforce, and support private discrimination.” Id., at 466. The reasoning of Norwood compels the conclusion that Montgomery must be enjoined from providing any assistance which financially benefits Montgomery's private segregated schools, except, of course, “such necessities of life as electricity, water, and police and fire protection,” Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 173 (1972). The unconstitutionality is thus obvious of such “nonexclusive uses” of municipal recreational facilities as the use of a portion of a park for a segregated school’s gym classes or organized athletic contests. By making its municipal facilities available to private segregated schools for such activities, Montgomery unconstitutionally subsidizes its private segregated schools by relieving them of the expense of maintaining their own facilities.

Whether it is necessary to go even further and enjoin all school-sponsored and school-directed nonexclusive uses of municipal recreational facilities — as would my Brothers White and Douglas — is a question I would have the District Judge decide on remand. Private segregated schools are not likely to maintain their own zoos, museums, or nature walks. Consequently, permitting segregated schools to take their students on field trips to city facilities of that kind would not result in a direct financial benefit to the schools themselves. An injunction against use by segregated schools of such city facilities would be appropriate, in my view, only if the District Court should find that the relief is necessary to insure full effectuation of the Montgomery desegregation decrees.

I agree with the Court’s vacation of the Court of Appeals’ judgment reversing paragraphs 3 and 4 of the District Court’s order relating to segregated nonschool groups, and with the direction to the Court of Appeals to enter a new judgment remanding the case to the District Court for further proceedings as to nonschool groups. A remand is required, in my view, because first the District Court must consider whether, for purposes of relief supplementary to the 1959 parks desegregation decree, a distinction between simply all-white groups and all-white groups with a segregated admissions policy is proper, ante, at 563-564, n. 6, and second, if that distinction is found meaningful, the District Court must clarify what evidence was relied upon to conclude that private organizations with racially discriminatory admissions policies are in fact using municipal facilities.

But, should the District Court on remand find adequate evidence of use of the city’s recreational facilities by private nonschool groups with segregated admissions policies, or find that the distinction between such groups and simply all-white groups is improper, I believe that the District Court must enjoin "exclusive use” of recreational facilities by such groups. The complete record compiled in this case establishes beyond question that, even after the parks desegregation order of September 9, 1959, respondents continued for over a decade to engage in an unconstitutional de jure policy of deliberate segregation of the city’s recreational facilities. The Court’s reasoning in affirming the Court of Appeals’ injunction against “exclusive use” of municipal recreational facilities by private segregated school groups demonstrates this and bears repetition:

"[T]he city’s policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, 'enclaves of segregation’ and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional duty to eliminate every 'custom, practice, policy or usage’ reflecting an ‘impermissible obeisance to the now thoroughly discredited doctrine of “separate but equal.” ’... This obviously meant that discriminatory practices in Montgomery parks and recreational facilities were to be eliminated ‘root and branch,’ to use the phrase employed in Green v. County School Board of New Kent County, 391 U. S. 430, 438 (1968).” Ante, at 566-567.

Surely, respondents’ failure to extirpate “enclaves of segregation” created by “exclusive use” of city recreational facilities by private nonschool groups is no less a violation of the city’s affirmative duty to desegregate the parks than its proved failure to eliminate “enclaves” created by the “exclusive use” of such facilities by school groups. Thus, unlike the Court, I see no reason for deferring an immediate expression on the significance of the city’s involvement in the private discrimination of the nonschool groups, see ante, at 574, pending a more fully developed factual record. The justifications for finding that “exclusive use” by school groups violated the 1959 parks desegregation order plainly also require that, if private nonschool groups are in fact making “exclusive use” of municipal facilities, these uses, too, be found to violate the 1959 decree. In that circumstance, the unconstitutional “state action” of the respondents consists of their continuing racially discriminatory policies and practices that frustrate and impede the dismantlement of Montgomery’s de jure segregated parks.

Mr. Justice White,

with whom Mr. Justice Douglas joins,

concurring in the judgment.

I concur in the Court’s judgment except that I would sustain the District Court not only to the extent the Court of Appeals affirmed its judgment but also insofar as it would bar the use of city-owned recreation facilities by students from segregated schools for events or occasions that are part of the school curriculum or organized and arranged by the school as part of its own program. I see no difference of substance between this type of use and the exclusive use that the majority agrees may not be permitted consistent with the Equal Protection Clause.

It may be useful also to emphasize that there is very plainly state action of some sort involved in the leasing, rental, or extending the use of scarce city-owned recreation facilities to private schools or other private groups. The facilities belong to the city, an arm of the State; the decision to lease or otherwise permit the use of the facilities is deliberately made by the city; and it is fair to assume that those who enter into these transactions on behalf of the city know the nature of the use and the character of the group to whom use is being extended. For Fourteenth Amendment purposes, the question is not whether there is state action, but whether the conceded action by the city, and hence by the State, is such that the State must be deemed to have denied the equal protection of the laws. In other words, by permitting a segregated school or group to use city-owned facilities, has the State furnished such aid to the group’s segregated policies or become so involved in them that the State itself may fairly be said to have denied equal protection? Under Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), it is perfectly clear that to violate the Equal Protection Clause the State itself need not make, advise, or authorize the private decision to discriminate that involves the State in the practice of segregation or would appear to do so in the minds of ordinary citizens.

       Prior to the institution of the suit, some of the plaintiffs had petitioned the city’s Parks and Recreation Board, and the plaintiffs and others had petitioned the city’s Board of Commissioners to provide access to the city parks for petitioners and all other Negro citizens similarly situated. The chairman of the Parks and Recreation Board replied that the Board “has no authority in this matter.” The Board of Commissioners responded, “The Commission will not operate integrated parks.” Exhibits attached to complaint filed Dec. 22, 1958, in Civil Action No. 1490-N, United States District Court for the Middle District of Alabama, Northern Division.
      Within days after petitioners filed their suit, the city authorities, by resolution effective January 1, 1959, closed all the city’s recreational parks, athletic fields, swimming facilities, and playgrounds, to all persons, white and black, and did not purport officially to reopen them until 1965. The city continued, however, to own and maintain them.

       On April 22, 1964, after the case had lain dormant for four years, the District Court ordered the file closed “without prejudice to any party to this litigation petitioning this Court for a reinstatement.”

       Petitioners’ motion, filed August 7, 1970, was styled as a “Motion to Cite Defendants for Contempt and for Relief.” On October 2, the District Court granted the further motion of the petitioners that the August 7 motion be treated as an amendment to the original complaint.

       The record in that case revealed a deliberate attempt to thwart the desegregation order of the District Court. In 1958, the city and the YMCA formed a coordination committee. It was agreed that the YMCA would not offer any program that would duplicate or conflict with one offered by the city’s recreation department. The YMCA conducted football, basketball, and track programs for all the elementary school children of the city, but not for the junior high students. The responsibility for administering junior high programs was delegated to the Recreation Department. Each elementary school supposedly was assigned to the nearest YMCA branch. Yet the District Court found that “every predominantly white school in the city is assigned to one of the three all-white branches even though the school may be closer to the Cleveland Avenue [Negro] branch. Every predominantly Negro school is, regardless of its location, assigned to the Cleveland Avenue branch.” 316 F. Supp., at 905. The YMCA also was given free use of the city’s parks, playgrounds, and lighting equipment for its various athletic programs, and free water for its swimming pools. The city did not reopen its pools after it closed the parks in 1959. “In 1957, the YMCA operated one small branch in downtown Montgomery which had less than 1,000 members. By 1960, two years after the ‘Co-ordination Committee’ had been created, it operated five branches with five swimming pools. Today the YMCA operates six branches with eight swimming pools and has approximately 18,000 members.” Id., at 908.

       The settlement agreement appears to have been aimed at providing equal recreational facilities for the Negro population of Montgomery. It specified the construction of new community centers and a new recreation center. Improvements were to be made to existing predominantly Negro facilities. The city agreed to maintain all community centers “on an equal basis and to the same manner and extent.”
      The agreement was approved by the District Court on January 29, 1971. Jurisdiction, however, was “specifically retained,” and the defendants were.ordered to file a written progress report every six months.

       The District Court's decretal provisions in full text, except for a paragraph relating to the taxation of costs, are:

        “1. That the City of Montgomery, Alabama’s policy and practice of permitting the use of city owned or operated recreational facilities by any private school, or private school affiliated group, which school or group is racially segregated or which has a racially discriminatory admissions policy be and the same is hereby declared unconstitutional.
      “2. That said City of Montgomery, Alabama, its officers, agents, servants, employees, and those acting in concert with it, be and each is hereby enjoined from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy.
      “3. That said City of Montgomery, Alabama’s policy and practice of permitting the use of city owned or operated recreational facilities by any private group, club or organization which has a racially discriminatory admissions policy be and the same is hereby declared unconstitutional.
      “4. That said City of Montgomery, Alabama, its officers, agents, servants, employees and those acting in concert with it, be and each is hereby enjoined from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy.” 337 F. Supp., at 26.

       We understand the term “exclusive use” not to include the situation where only part of a facility may be allocated to or used by a group, even though that allocation or use results in the pro tanto exclusion of others. For example, the use of two of a total of 10 tennis courts by a private school group would not constitute an exclusive use; the use of all 10 courts would. This is not to say that the use of two by a private school group would be constitutionally permissible. See discussion, infra, at 570-571, n. 10.

       Petitioners requested that the District Court take notice in this case of Smith v. Young Men’s Christian Assn., 316 F. Supp. 899 (1970), in which the same District Judge had presided. The trial court ruled from the bench that it would take judicial notice “of the evidence that was presented in the Y. M. C. A. case.” Excerpted transcript, testimony of William Chandler, Nov. 20, 1970, p. 7.

       Petitioners also requested that the District Court in this case take notice of Carr v. Montgomery County Board of Education, supra. The trial court in its reported opinion, 337 F. Supp., at 24, referred to the duty of the State’s school boards to desegregate.

       The Brethren in concurrence state that they would sustain the District Court insofar as any school-sponsored or school-directed uses of the city recreational facilities enable private segregated schools to duplicate public school operations at public expense. It hardly bears repetition that the District Court’s original injunction swept beyond these limits without the factfinding required for the prudent use of what would otherwise be the raw exercise of a court’s equitable power.
      It is by no means apparent, as our Brother BreNNAN correctly notes, which uses of city facilities in common with others would have “a significant tendency to facilitate, reinforce, and support private discrimination.” Norwood v. Harrison, 413 U. S. 455, 466 (1973). Moreover, we are not prepared, at this juncture and on this record, to assume the standing of these plaintiffs to claim relief against certain nonexclusive uses by private school groups. The plaintiffs in Norwood were parties to a school desegregation order and the relief they sought was directly related to the concrete injury they suffered. Here, the plaintiffs were parties to an action desegregating the city parks and recreational facilities. Without a properly developed record, it is not clear that every nonexclusive use of city facilities by school groups, unlike their exclusive use, would result in cognizable injury to these plaintiffs. The District Court does not have carte blanche authority to administer city facilities simply because there is past or present discrimination. The usual prudential tenets limiting the exercise of judicial power must' be observed in this case as in any other.

      My examination of the record reveals: On December 1, 1971, the parties had filed an “Agreement for Submission of Case,” reciting that they agreed “for the case to be submitted to the Court on the pleadings filed by the parties, the answers to interrogatories heretofore filed by the parties, the answers to interrogatories heretofore filed by the Defendants, and upon the Fact Stipulation as attached hereto.” The only interrogatories propounded in connection with the “Motion for Further Relief,” with which this action was commenced, were propounded to respondent Henry M. Andrews, Director of the Parks and Recreation Department, and neither his answers nor anything contained in the Fact Stipulation, addresses a practice of respondents with respect to the use of facilities by nonschool private clubs and groups. There is, however, testimony on that subject in the depositions of the several, respondents taken in an earlier proceeding on the amended complaint that had led to a settlement agreement. Testimony as to the use of facilities by an allegedly private segregated citywide Dixie Youth baseball league appears in the depositions of Joseph E. Marshall and Durwood Lynn Bozeman, the City’s Athletic Director. Mr. Marshall’s deposition states that, while the Dixie Youth teams at one time were officially segregated, they removed racial restrictions a number of years ago “realizing that many of [the] Leagues used municipal facilities” and that invitations to join the leagues are issued to all children in the public schools, though all of the directors of the leagues are white. Mr. Bozeman’s deposition testifies that the city supplies these leagues with playing facilities, pays for lighting, and gives each of them a dozen balls, chest protectors, leg guards, masks, mitts, and eight bats. Mr. Bozeman’s deposition also covers the operations of the private, allegedly predominantly white, Babe Ruth league and a public Negro Babe Ruth league, and discusses the operations of allegedly segregated church softball leagues.