Jesse Helms' Lessons for Washington (The Washington Post)

    llmUh Btntm (Emirt rtf Kppmlz
F oe the F ifth  Circuit

Isr th e

No. 18,524

E ast B aton R ouge P arish School B oard and 
L loyd F unchess, Superintendent of said School Board,

—versus—
Appellants,

Clifford E ugene Davis, J r., a minor, by Ms father and 
next friend, Clifford E ugene Davis, Sr., et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

A. P. T ureaud 
A. M. T rudeau, J r.
E rnest N. Morial

1821 Orleans Avenue 
New Orleans 16, Louisiana

Constance B aker Motley 
T hurgood M arshall 

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees



In th e

lmtr& Bttitm (Emtrt rtf kppralB
F oe the F ifth Circuit

No. 18,524

E ast B aton B ouge P arish School B oard and 
L loyd F unchess, Superintendent of said School Board,

—versus—
Appellants,

Clifford E ugene Davis, J r., a minor, by his father and 
next friend, Clifford E ugene Davis, Sr., et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

Statement o f the Case

Appellants’ Statement of the Case is supplemented by 
the following facts appearing in the record on appeal which 
appellees believe necessary to a full and proper statement 
of this case:

On May 25, 1960, an injunction order was entered by the 
court below in this case.

This injunctive order enjoins the appellant East Baton 
Bouge Parish School Board and the appellant Superinten­



2

dent of Schools from “ requiring segregation of the races 
in any school under their supervision, and from engaging 
in any and all action which limits or affects the admission 
to, attendance in, or education of plaintiffs or any other 
Negro child similarly situated in schools under [their] 
jurisdiction, on the basis of race and color, from and after 
such time as may be necessary to make arrangements for 
admission of children to such schools on a racially non- 
discriminatory basis with all deliberate speed, as required 
by the decision of the Supreme Court in Brown v. Board of 
Education of Topeka, . . . ” (R. 171-172).

The court below retained jurisdiction of this cause for 
the purpose of entering such further orders or granting 
such further relief as may be necessary to bring about 
compliance with its decree (R. 172).

The foregoing order was entered approximately four 
years and three months after February 29, 1956, the date 
on which the complaint was filed (R. 2).

The complaint alleged that various statutes of the State 
of Louisiana and the State Constitution required racial 
segregation in the public schools and prayed for injunctive 
relief against the enforcement of same (R. 9-14).

No answer was ever filed by appellants during the four 
year period in which this case pended in the court below.

The record shows that prior to the filing of the complaint, 
Negro citizens of East Baton Rouge Parish, including some 
of these appellees, petitioned the appellant Board and 
Superintendent to comply with the decisions of the United 
States Supreme Court in the School Segregation Cases (R. 
58-59). This petition was presented to the Board at its 
meeting on November 10, 1955 (R. 55). At that meeting, 
the Board adopted the following resolution:



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“Resolved, That the above-mentioned petition be filed 
in accordance with the Board’s resolution of August 25, 
1955 as follows:

‘Resolved, That, as far as segregation is concerned, 
the Board will follow the State ,lawT on the subject’ ” 
(R. 56).

Similar petitions to the Board were disposed of in the 
same fashion (R. 49).

After the complaint was filed, appellees took the,deposi­
tions of Superintendent Funchess on April 24, 1956 (R. 45- 
60). He testified as to the receipt of the various desegrega­
tion petitions addressed to the Board (R. 47-49), as to the 
failure of the Board to take any steps to comply with the 
Supreme Court’s decisions in the School Segregation Cases 
(R. 50-51), and testified as to his inability to make assign­
ments to schools on a nonraeial basis in view of the Board’s 
policies (R. 53). This deposition was before the court 
below on consideration of plaintiffs’ motion for summary 
judgment (R. 167).

Appellants took the depositions of ten of the fourteen 
appellees on various dates during April 1956 (R. 62-134). 
During the course of these depositions, appellants learned 
the identity of each of these adult plaintiffs and the identity 
of each of the minor plaintiffs attending schools under 
appellants’ jurisdiction on behalf of whom this suit is 
brought.

On November 4, 1959, appellees .filed a motion for a sum­
mary judgment (R. 141). Five days later, appellants filed 
their opposition thereto (R. 146), In their opposition 
appellants called the attention of the court below to the 
fact that Louisiana had adopted a pupil placement law (Act 
259, 1958, R.S. 17:101-110) which is similar to the one 
enacted by Alabama and held facially constitutional in the



4

ease of Shuttlesworth v. B’ham Bd. of Ed. (N. D. Ala. 1958), 
162 F. Supp. 372, aff’d 358 U. S. 101 (E. 147).

On the same date upon which appellants filed their oppo­
sition they also filed two motions to dismiss, a motion for 
a more definite statement (E. 148), and a motion to join 
the NAACP as an indispensable party (E. 145).

One of the motions to dismiss sought dismissal on the 
ground that appellees failed to allege affirmatively that 
they have exhausted their administrative remedies pro­
vided by law (E. 150).

The other motion to dismiss sought dismissal on the 
ground that this suit is, in effect, a suit against the State of 
Louisiana (E. 151).

On March 14, 1960, appellants filed a supplemental oppo­
sition to motion for summary judgment (E. 161). By this 
document appellants claimed that they were operating 
under the Louisiana Pupil Placement Law and since the 
highest court of the State of Louisiana had not passed upon 
the constitutionality of the Louisiana Pupil Placement Law 
the court below should invoke the doctrine of abstention 
(E. 161-162).

A third motion to dismiss filed on the same date made 
identical claims (E. 167).

On March 14, 1960 the court below held a hearing on all 
pending motions which included the motions referred to 
above and other motions (E. 166). One of these other 
motions was a motion by a third party, Eobert 0. Me- 
Craine, Sr., a white parent of East Baton Eouge Parish, 
to intervene (E. 159-160, 152). This motion was subse­
quently denied (E. 171). Said intervenor also appeals to 
this Court (E. 177). Another motion heard on March 14, 
1960 was the motion of appellants for a more definite state­
ment (E. 148, 164) which was also later denied (E. 170).



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The motion to add N.A.A.C.P, as a party (R. 145) was also 
heard and similarly subsequently denied (R. 170).

Appellants’ several motions to dismiss, although heard on 
March 14, 1960, were also subsequently denied on April 28, 
1960 (R. 171).

Appellees’ motion for summary judgment was also heard 
on March 14, 1960 but was not granted until April 28, 1960 
(R. 170).

The injunctive order recited above was not entered in this 
cause until May 25, 1960 (R. 171).

The notice of appeal which the Board and Superinten­
dent filed was filed one day prior to the entry of this injunc­
tion on May 24, 1960 and appeals from the “ decree entered 
in the action” on April 28, 1960 (R. 173) which was the 
date on which the court below entered an order denying 
the various motions of appellants discussed above and 
granting appellees’ motion for summary judgment without 
more (R. 170-171).

Intervenor’s notice of appeal was filed on May 26, 1960 
(R. 177).

In this brief appellees address themselves to appeal of 
the Board and the superintendent only. Appellees believe 
the intervenor’s appeal to be wholly without merit. More­
over, it appears that intervenor has not filed a separate 
brief or record on appeal.



6

ARGUMENT

I.

The validity and propriety of the injunctive order 
entered by the court below is sustained by prior decisions 
of this Court.

The injunctive order of the court below is similar to the 
order entered by that same court in Bush v. Orleans Parish 
School Board (E. D. La. 1956), 138 F. Supp. 336, 337, and 
affirmed by this Court on appeal by the defendant school 
board in that case. Orleans Parish School Board v. Bush, 
242 F. 2d 156 (5th Cir. 1957).

Appellants’ contention that the court below erred in fail­
ing to consider the provisions of the Louisiana Pupil 
Placement Law (Act No. 259, 1958, L. E. S. 17:101-110) is 
patently frivolous and unsubstantial, same being precluded 
by prior recent decisions of this Court in similar public 
school desegregation cases in Florida. Mannings v. Board 
of Public Instruction of Hillsborough County, Florida, 277 
F. 2d 370 (5th Cir. 1960); Gibson v. Board of Public In­
struction of Dade County, Fla., 272 F. 2d 763 (5th Cir., 
1959); Holland v. Board of Public Instruction of Palm, 
Beach County, Fla., 258 F. 2d 730 (5th Cir. 1958); Gibson 
v. Board of Public Instruction of Dade County, Fla., 246 F. 
2d 913 (5th Cir. 1957).

The court below did not err, as appellants contend, in 
denying their motion to make the National Association for 
the Advancement of Colored People (N. A. A. C. P.) an 
indispensable party-plaintiff. The NAACP, an organiza­
tion, manifestly does not have standing to sue to enjoin 
appellants from operating their schools on a racially segre­
gated basis. Such a suit could only be brought by the



7

parents of the children affected by such unconstitutional 
action.

Appellants took the depositions of ten of the fourteen 
appellees. These depositions, which are a part of the record 
on appeal (R. 62-140), show that appellants were fully 
apprised of all of the facts concerning this case. Moreover, 
appellants, themselves, as the proper school authorities of 
East Baton Rouge Parish, had within their own records 
whatever information they could possibly desire concerning 
the ages and school assignments of the minor plaintiffs. 
Consequently, no error was made below in denying motion 
for more definite statement of these facts.

Finally, the validity and applicability of several other 
Louisiana statutes affecting school desegregation in that 
state, and to which appellants apparently refer when they 
contend that certain statutes should have been referred by 
the court below to a three-judge court, have been held un­
constitutional by a recent three-judge court decision of 
August 27, 1960 in Bush v. Orleans Parish School Board 
(E. D. La.), Civil No. 3630.1 And this Court’s decision in 
Orleans Parish School Board v. Bush, 268 F. 2d 78 (5th 
Cir. 1959) had already disposed of appellants’ contention 
regarding Act No. 319, 1956, L.S.A.-R.S. 17:341, also held 
unconstitutional by the three judge court.

1 The following Louisiana Statutes were held unconstitutional in that 
decision: Sections I, II  and IV  of Act 496 of I960, Section I and II  providing 
for separate schools for Negro and white children, Section IV  reserving to 
the Legislature exclusive power to classify schools; Section V of Act 496 
of 1960 which gave the Governor power to supersede local school boards under 
court order to desegregate; Acts 256 of 1958 gave the Governor the right 
to close any school in the state and ordered to integrate; Act 495 o f 1960 
gave the Governor the power to close all the schools in the state if  one is 
integrated; Act 542 of 1960 gave the Governor the right to close any school 
threatened with violence or disorder; Act 333 of 1960; Act 319 of 1956; and 
Act 555 o f 1954, all of which provided for segregation o f the races in the 
public schools and withheld, under, penalty, free books, supplies, lunch and 
state funds from integrated schools.



CONCLUSION

For all the foregoing reasons, the judgment below must 
be affirmed,

Respectfully submitted,

A. P. T ukeattd 
A. M. T rudeau, J r.
E rnest N. Morial

1821 Orleans Avenue 
New Orleans 16, Louisiana

Constance Baker Motley 
T hurgood Marshall 

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees



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