Private, But Public

THE CONSTITUTION

Even before the looming Senate battle over the civil rights bill begins, the U.S. Supreme Court has settled a part of the argument simply by saying no. One section of the House-passed bill would nullify all statutory provisions that authorize federal aid to segregated institutions. Last week the Supreme Court refused to review a Court of Appeals decision striking down just such a provision.

The Supreme Court insists that refusal to review a lower-court ruling cannot be taken to imply approval of it, but when the Supreme Court lets stand a decision declaring that a section of an act of Congress is unconstitutional, many judges and lawyers make the obvious interpretation.

Enough Involvement. The case that the court refused to consider involved a part of the 1946 Hill-Burton Act which set up a continuing program of federal grants to states for construction, renovation and equipping of hospitals. Under Hill-Burton, hospitals that exclude or segregate Negroes are eligible to receive aid as long as facilities "of like quality" are available for Negro patients.

At the time Hill-Burton was enacted, the Supreme Court had not yet struck down the old separate-but-equal doctrine, which permitted state and local governments to practice segregation. But once the Supreme Court declared separate-but-equal education unconstitutional in 1954, lower courts began to order desegregation of parks, playgrounds and other public facilities. Hill-Burton's explicit permission of segregation was out of date, and in 1962 a group of North Carolina Negroes brought a federal suit claiming that it violated the Constitution. Defendants in the suit: two Negro-excluding hospitals that had received Hill-Burton funds. The Justice Department intervened on the side of the Negroes and filed a brief supporting their suit--one of the very few times the department had ever challenged the constitutionality of an act of Congress.

The Negroes lost the first round: the federal district court in Greensboro ruled that the two hospitals were private organizations, and it is established law that the Constitution does not forbid private discrimination in the absence of state action. But last November the U.S. Court of Appeals overruled the district court. The majority opinion, written by Chief Judge Simon E. Sobeloff, held that since the hospitals received public funds, and since some of the trustees were appointed by the state, there was enough "state participation and involvement" to bring the hospitals under the Constitution's commands against segregation.

Entering Wedge. The N.A.A.C.P. Legal Defense and Educational Fund, which saw the case through the courts, hailed the Supreme Court's refusal to review as a victory, jubilantly declared that the Court of Appeals decision would "affect 2,000 hospitals and medical facilities throughout the South." As the N.A.A.C.P. sees it, hospitals receiving Hill-Burton aid must now open their doors not only to Negro patients but also to Negro doctors. And that, said an N.A.A.C.P. spokesman, "will be an entering wedge for Negro physicians into the mainstream of medical practice in the South."

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