Notice & Comment

Citizens to Preserve Overton Park – Race-Inflected Below Its Surface, by Peter L. Strauss

Overton Bark is a dog park inside Overton Park in Memphis. (Melissa McMasters photo)

This is not a picture one would have seen during the battles over Memphis’s Overton Park.  When planning for Interstate 40’s route through Memphis began in the 50’s, one could have found Blacks in parts of that park only on Tuesdays; the park was for Whites only on other days.  An urban oasis near downtown, largely surrounded by White residential areas, this large park held a zoo, golf course, and attractive forests and grounds – a municipal treasure not far from the commercial area. It was bisected by a bus road that was proposed as the route for I-40 to pass through Memphis.  Circumferential roads were also planned.  Just as I-40 in Nashville would disrupt an established Black community, the circumferential roads were routed through largely Black residential and commercial areas.  But constructing the route through Memphis and Overton Park would disrupt White residential areas as well as this – at the time – essentially White urban playground.

My interest piqued by watching the case unfold in the Solicitor General’s office while I was an attorney there, I spent a week in Memphis in the early 90’s exploring newspaper accounts and other materials, and also interviewed the plaintiff’s attorneys then and again about decade later, when preparing a second essay on the case.  I learned then of a lengthy political struggle between the route’s proponents – potential users valuing a straight shot through the city to the new bridge to be built over the Mississippi, and downtown commercial interests already aware how a circumferential might draw shoppers away from downtown – and its opponents, those (White) citizens whose homes would be taken by the route or affected by its noise and fumes.  The Court had never learned of those struggles or of the impact of the circumferential route’s impact on Black neighborhoods – or of the rich history of political struggle that had resulted in many ameliorating revisions to the initial plans, but not rerouting.  It was a case rushed through the Court – it granted certiorari in early December, 1970, in response to  a motion to stay construction that had already reached the Park’s boundary, and it heard the case argued just a month later; thus, the government had to write its brief in the two weeks spanning Christmas and New Year’s Day, not an auspicious length of time – or occasion – to learn background. 

The day that the Memphis City Council met the federal highway administrator at Memphis airport to finally approve the route through Overton Park was the day of Martin Luther King’s assassination.  Neither that meeting nor that awful coincidence found mention in the case papers.  Justice Thurgood Marshall wrote for the Court, a perhaps ironic twist, and the main thrust of his opinion (although administrative law teachers predominantly use its paragraphs addressing the standard of judicial review, an issue essentially unmentioned in the briefs) was that politics could not be trusted to protect park values as the governing statute commanded.  But he did not know the political history or the routing revisions that had been made in response, and was not made aware of the racial inflection of Memphis routing decisions – or even that the square mile of new parkland Memphis had bought with the money it received for the 26 acres of Overton Park that had been taken for the highway route generally served White residential areas. In later stages of the political struggles over the route, the (failing) Nashville efforts to preserve the Black community I-40 would bisect there may have become known; the one open attention to racial issues I recall was an argument against an alternative route being proposed for traversing Memphis, that it would impact an established and stable mixed-race community.

Today, Overton Park remains an urban treasure, and one now freely used by its whole community, as the picture heading this entry reflects.  That is a fortunate outcome; but the hardy band of citizens who sought to protect it were not a mixed multitude, and considering the whole of the routing decisions about I-40 in Memphis (as in Nashville), race did not live far below its surface.  

Peter Strauss is the Betts Professor of Law Emeritus at Columbia Law School.  Prof. Strauss’s prior writings about the case, on which this blog draws, are Revisiting Overton Park: Political and Judicial Controls on Informal Administrative Adjudication, 39 UCLA L. Rev. 1251 (1992), and Citizens to Preserve Overton Park v. Volpe – of Politics and Law, Young Lawyers and the Highway Goliath (in Strauss ed., Administrative Law Stories (Foundation, 2006)).

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