Orleans Parish School Board v. Bush Brief in Opposition to Petitioners' Motion for Leave

    (tort nt tluv Imtrii States
October Term, 1955

IK  THE

No. Misc.

ORLEANS PARISH SCHOOL BOARD, e t  a l .,

Petitioners,
v.

EARL BENJAMIN BUSH, et al .

O n  M otion fob L eave to F ile P etition  fob 
W rits of M andam us  and P rohibition

BRIEF IN O PPO SITIO N  TO PE TITIO N E R S’ M O TIO N  
FOR L E A V E  T O  FILE PE TITIO N  FO R  W R IT S  OF 

M A N D A M U S  A N D  PROHIBITION

T hurgood M arshall , 
R obert L . Carter,
A . P . T ureaud,
A . M . T rudeau , Jr., 
Attorneys for Respondents.

E lwood H. C h iso lm ,
of Counsel.

Supreme P rinting Co., Inc., 114 W orth Street, N. Y. 13, BE ekm an  3 - 2320



TABLE OF CONTENTS

PAGE

Opinions B e lo w ........................................................   1
Question Presented......................................................... 2

Statement of the C a se ......................... .. 2

Argument ........................................................................  4

Cases Cited

Banks v. Izzard, Civil Action No. 1236 (W. D. Ark.,
decided Jan. 18, 1956) unreported.........................  6

Bell v. Rippy, 133 F. Supp. 811 (N. D. Tex. 1955) .. 6
Brown v. Rippy, No. 15872 (CA 5th) .......................  6, 7
California Water Service v. Redding, 304 II. S. 252 4
Case v. Bowles, 327 U. S. 9 2 ........................................  4
Covington v. Edwards, Civil Action No. 323-R (M. D.

N. C., decided Apr. 6, 1956) unreported.................. 6
Dunn v. Board of Education, Civil Action No. 1693

(S. D. W. Va., decided Oct. 10, 1955) unreported . . 6
Ex parte Bransford, 310 U. S. 354 .............................  4
Ex parte Buder, 271 IT. S. 4 6 1 .....................................  4
Ex parte Collins, 277 U. S. 565 .....................................  6
Ex parte Poresky, 290 IT. S. 3 0 ............................. .. 4
McKinney v. Blankenship, — Tex. —, 282 S. W. 2d 

691 (1955) ....................................................................  6
Mathews v. Launius, 134 F. Supp. 684 (W. D. Ark.

1955) ............................................................................  6
Phillips v. United States, 312 U. S. 246 .....................  4, 6
School Segregation Cases (Brown v. Board of Edu­

cation of Topeka, 347 U. S. 483; Id., 349 U. S.
294 ..................................................................................  3, 5

Willis v. Walker, 136 F. Supp. 181 (W. D. Ky. 1955),
136 F. Supp. 1 7 7 ......................................................... 5



11

Statutes Cited
PAGE

Constitution of the United States:
Fourteenth Amendment .......................................  2

Federal Civil Rights A cts:
Title 42 U. S. C. §§1981, 1983 .............................  2

Title 28 U. S. C. § 2281 .........................................  4, 6



IN  THE

gnutmtu' (tart of tip llnltih 0tata
October Term, 1955 

No. Misc.

• o

Orleans P arish  S chool B oard, et al.,
Petitioners,

vs.

E arl B e n ja m in  B u sh , et al.

O n M otion for L eave to F ile P etition  for 
W rits of M andamus and P rohibition

-------------------------------------- o ----------------------------------—

BRIEF IN OPPOSITION TO PETITIONERS’ MOTION 
FOR LEAVE TO FILE PETITION FOR WRITS OF 

MANDAMUS AND PROHIBITION

Opinions Below

The opinion of the United States District Court, entered 
February 15, 1956, declaring the statutes unconstitutional 
and dissolving the specially constituted three-judge District 
Court which heard this case is reported in 138 F. Supp. 
336. The opinion of the United States District Court, 
also entered February 15, 1956, which denied petitioners’ 
motions to dismiss and granted a temporary injunction 
against them is reported in 138 F. Supp. 337.



2

Question Presented

The sole question presented in this proceeding is 
whether, in a case brought on behalf of minor Negro chil­
dren to obtain admission to public schools on a nonsegre- 
gated basis and where both declaratory and injunctive relief 
are sought on the ground that state legislation is repugnant 
to the Federal Civil Eights Acts as well as the Constitution 
of the United States, it is procedurally proper for a statu­
tory three-judge District Court to hear the cause and, sub­
sequently, after determining that no serious constitutional 
question is presented since the challenged legislation was 
clearly unconstitutional, to withdraw from the case and 
refer further proceedings to a one-judge District Court 
which forthwith denies petitioners preliminary motions and 
grants a temporary injunction.

Statement of the Case

Petitioners’ statement of facts cannot be accepted as- 
entirely accurate or complete. Moreover, their statement 
includes conclusions of ultimate fact rather than the bare 
evidential facts. For these reasons, we consider it neces­
sary to set forth the facts with greater particularity.

This suit was brought in behalf of minor Negro children 
by their parents, guardians or next friends to obtain admis­
sion to public schools of Orleans Parish on a nonsegregated 
basis. The complaint was based on two grounds: First, 
that certain state statutes and provisions of the Louisiana 
Constitution which require or permit racial segregation in 
public schools are repugnant to the Fourteenth Amendment 
to the Constitution of the United States. Second, that the 
enforcement of these state statutes and constitutional pro­
visions against plaintiffs violates their rights guaranteed, 
under the Federal Civil Eights Acts, Title 42 U. S. C. 
§§ 1981, 1983. A declaratory judgment plus temporary and



8

permanent injunctive relief against defendants, petitioners 
here, were sought; and a statutory three-judge District 
Court was requested.

Plaintiffs’ application for a temporary injunction and 
petitioners’ motions to dismiss were heard before the statu­
tory three-judge District Court on December 2, 1955.

Two and a half months later, on February 15, 1956, in a 
per curiam opinion, the statutory District Court determined 
that the challenged state statutes and constitutional provi­
sion were invalid under this Court’s rulings in the School 
Segregation Cases (Brown v. Board of Education of Topeka, 
347 U. S. 483, 495; Id., 349 U. S. 294, 298); that no serious 
constitutional question, not heretofore decided by this Court, 
was presented; and that, accordingly, a statutory court was 
not required. The statutory court then directed two of its 
judges to withdraw and referred the case back to the single­
judge District Court where it had been originally filed.

Subsequently, the latter court, also on February 15, 
issued an opinion which disposed of petitioners ’ preliminary 
motions to dismiss plus plaintiffs’ application for temporary 
injunction; and, this was accompanied with an order which 
restrained petitioners from “ requiring and permiting seg­
regation of races in any school under their supervision, 
from and after such time as may be necessary to such 
schools on a racially nondiscriminatory basis with all de­
liberate speed as required by the decision of the Supreme 
Court in Brown v. Board of Education of Topeka, supra.”

Petitioners filed applications for rehearing or new trial 
on February 24, 1956. Both the three-judge District Court 
and the single-judge District Court denied the applications 
submitted to them on March 8.



4

Argument

Section 2281, Title 28 U. S. C., clearly provides that a 
three-judge District Court must be convened to hear an 
application for an injunction against a state officer to 
restrain the enforcement, operation or execution of a 
state statute where the injunction is sought “ upon the 
ground of the unconstitutionality of such statute.”  How­
ever, it is equally clear that a three-judge court is un­
necessary unless the claim of unconstitutionality or the 
question of constitutionality is “ substantial.”  Ex parte 
Foresky, 290 U. S. 30, 31; Ex parte Buder, 271 U. S. 461, 
467. Similarly, it appears that no substantial constitu­
tional question is presented when previous decisions of 
this Court have foreclosed the issue. California Water 
Service v. Redding, 304 U. S. 252, 255; E x parte Foresky, 
supra, at p. 32. Moreover, where a state statute is attacked 
on the ground that it violates a federal statute, the provi­
sions for a three-judge court are inapplicable. Case v. 
Bowles, 327 U. S. 92, 97; and this Court has denied a motion 
for leave to file a petition for a writ of mandamus to 
compel the convening of a three-judge court in a case 
where the claim of unconstitutionality was obviously with­
out merit yet a question of repugnancy to a federal law 
was apparently substantial. Ex parte Bransford, 310 U. S. 
354. Cf. Phillips v. United States, 312 U. S. 246; Ex parte 
Buder, supra.

Turning to the instant case, the facts show that the com­
plainants sought temporary and permanent injunctive re­
lief plus a declaratory judgment against state oflicers to 
restrain the enforcement of state statutes which required 
or permitted racially segregated schools. The legislation 
was assailed upon grounds of unconstitutionality and re­
pugnance to the Federal Civil Rights Acts. A three-judge 
court was convened. After examining the pleadings and 
hearing the motions to dismiss and the application for



5

temporary injunction, it decided that the challenged stat­
utes were unconstitutional, then withdrew and returned 
the case to a single-judge court. In support of this the 
three judges referred to the decisions of this Court in the 
School Segregation Cases and concluded, at 138 F. Supp. 
337:

In so far as the provisions of the Louisiana Con­
stitution and statutes in suit require or permit 
segregation of the races in public schools, they are 
invalid under Brown.

* #• #
It now appears that no serious constitutional ques­
tion, not heretofore decided by the Supreme Court 
of the United States, is presented. Accordingly, a 
three-judge court under 28 U. S. C. § 2281 is not 
required.

Thereafter, the single-judge District Court issued a 
temporary injunction, see Statement of the Case, supra, 
after disposing of five defenses raised by petitioners in 
their motions to dismiss. 138 F. Supp. 337. We submit 
that this procedure was in full conformity with Section 
2281 and fully satisfies its requirements.

While it is true that this Court has yet to squarely 
approve the manner in which the court below proceeded, 
it is significant to note that never before have so many 
state officials in so many states persisted in enforcing 
state laws which have been held unconstitutional by this 
Court. It is also important to indicate that other District 
Courts faced with like suits against recalcitrant school 
authorities have convened as a three-judge court only to 
withdraw and remand to a one-judge court which proceeded 
to issue an injunction. See e.g., Willis v. Walker, 136 F. 
Supp. 181 (W. D. Ky. 1955), 136 F. Supp. 177. In a number 
of other cases where Neg'ro children have sought, or are 
seeking, admission to public schools on a nonsegregated 
basis, the single judge has presided throughout the pro­



6

ceedings although three-judges were requested pursuant 
to 28 U. S. C. 2281. See e.g., Bell v. Rippy, 133 F. Supp. 
811 (N. D. Tex. 1955)/ appeal pending sub nom Brown 
v. Rippy, No. 15872 (CA 5th); Mathews v. Launius, 134 
F. Supp. 684 (W. D. Ark. 1955); Dunn v. Board of Educa­
tion, Civil Action No. 1693 (S. D. W. Va., decided Oct. 
10, 1955) unreported; Banks v. Iszard, Civil Action No. 
1236 (W. D. Ark., decided Jan. 18, 1956) unreported; Cov­
ington v. Edwards, Civil Action No. 323-R (M. D. N. C., 
decided Apr. 6, 1956) unreported. Thus, it appears that 
District Courts in the Fourth, Fifth, Sixth and Eighth Cir­
cuits, whether or not a three-judge court was preliminary 
convened, have decided that a statutory court is not re­
quired in this type of case.

Practical consideration would seem to favor a determina­
tion that cases of this character do not require a three-judge 
court. For, undoubtedly, it would impose a weighty and 
unwarranted burden upon the federal judiciary and the 
appellate docket of this Court to require a three-judge 
court to be convened every time a Negro pupil seeks an 
injunction against state officials who continue to enforce 
an obviously unconstitutional state statute which requires 
or permits racial segregation in public schools. Moreover, 
such a requirement would seem to defeat the purposes 
which Congress sought to achieve. Support for these con­
siderations is found in a long line of cases, including Phillips 
v. United States, supra; Ex parte Collins, 277 U. S. 565'. 
Here, however, the Court below, faced with the clear re­
quirements of Section 2281, sought to comply with its terms. 
We submit that there were no procedural imperfections in 
its action.

This Court in the Brown case, having decided that racial 
discrimination in public education is unconstitutional, held

1 Decided September 16, 1956, about a month prior to the decision 
of the State Supreme Court in McKinney v. Blankenship, —  Tex. 
— , 282 S. W . 2d 691 (1955).



7

that: “ All provisions of federal, state or local law re­
quiring or permitting such discrimination must yield to 
this principle.”  In the face of this clear-cut decision peti­
tioners, nevertheless, sought in the District Court and now 
seek in this Court an opportunity to re-argue the merits 
of the Brown decision. Obviously, such re-argument is 
alien in either court.

These considerations, we submit, firm up into a con­
clusion that the procedure adopted by the statutory Dis­
trict Court in the instant case was a logical and proper 
one: to determine whether the challenged statutes were 
within the scope of the decision in the Brown case and, 
upon reaching a determination that said statutes “ are 
invalid under the ruling of the Supreme Court in Brown” , 
to then remand the case to a single judge to enforce the 
remedial provisions of the Brown case.

W herefore, fo r  the reasons h erein before  stated, it is 
resp ectfu lly  subm itted the m otion  fo r  leave to fo r  w rits 
o f  m andam us and p roh ib ition  should be denied  w ith 
app rop ria te  d irections.

T hurgood M arshall ,
R obert L. Carter,
A. P. T ureatjd,
A. M. T rudeau , J r ., 
Attorneys for Respondents.

E lwood H . C h iso lm ,
of Counsel.