James A. Hammond and Hazel Louise Gibson v. The University of Tampa ( 1965 )

344 F.2d 951

James A. HAMMOND and Hazel Louise Gibson, Appellants,
v.
The UNIVERSITY OF TAMPA et al., Appellees.

No. 21512.

United States Court of Appeals Fifth Circuit.

May 6, 1965.

Frank H. Heffron, Jack Greenberg, New York City, Francisco A. Rodriguez, Tampa, Fla., Constance Baker Motley, New York City, for appellants.

David C. G. Kerr, Charles F. Blake, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for appellees, Chester H. Ferguson, Tampa, Fla., of counsel.

Before TUTTLE, Chief Judge, and RIVES and BELL, Circuit Judges.

PER CURIAM:

1

This is an appeal from an order dismissing a complaint brought by Negro plaintiffs seeking an injunction to prevent the University of Tampa from continuing its policy of restricting admissions to white persons. Although the University of Tampa is not a state or city institution in the usual sense, its establishment was largely made possible by the use of a surplus city building and the use of other city land leased for the University purposes. Under Derrington v. Plummer, 5 Cir., 240 F.2d 922, and Hampton v. City of Jacksonville, 5 Cir., 304 F.2d 320, the City's involvement in the establishment and maintenance was of such a nature as to require a holding that "state" action under the Fourteenth Amendment was involved in the denial of appellants' rights.

2

However, during the appeal the University's governing body has withdrawn racial barriers, and we are informed that some Negro students have been enrolled. Thus, no injunctive order seems to be required to vindicate appellants' constitutional rights.

3

The judgment is reversed and the case is remanded to the trial court to retain jurisdiction for a reasonable time to permit it to determine that the appellees have commenced to, and will continue to, operate the University in such manner as will not discriminate against the appellants and the class for which they sued.

4

Reversed and remanded.