Orleans Parish School Board v Bush Motion to Affirm

    In the

Mntteii States GInurt of Appals
F o r  t h e  F i f t h  C i r c u i t

No. 19,898

T h e  C i t y  o f  N e w  O r l e a n s , et al.,
Appellants,

— v .—

W i l l i a m  R. A d a m s , et al.,
Appellees.

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

NEW  ORLEANS DIVISION

BRIEF FOR APPELLEES

J a c k  G r e e n b e r g  
J a m e s  M .  N a b r i t , III 
M i c h a e l  M e l t s n e r

10 Columbus Circle 
New York 19, New York

A. P. T u r e a u d

1821 New Orleans Avenue 
New Orleans, Louisiana 

Attorneys for Appellees



I N D E X

PAGE

Statement of the C ase.......................................................  1

A r g u m e n t

The Fourteenth Amendment Prohibits the Lessee 
of a Municipality, Operating Food and Beverage 
Facilities Under an Exclusive Concession at a 
City Owned Airport, From Refusing to Serve 
Negroes .........................................................................  5

C o n c l u s i o n  ................................................................................................................ 1 0

T a b l e  o f  C a s e s

Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958) ............. 5

Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.
1961) vacated and remanded 369 U. S. 3 1 .................... 9

Board of Supervisors of Louisiana State University v. 
Wilson, 340 U. S. 909, affirming 92 F. Supp. 986
(E. D. La. 1956) .............................................................  9

Brooks v. City of Tallahassee, 202 F. Supp. 56 (N. D.
Fla., 1961) ......................................   5

Burton v. Wilmington Parking Authority, 365 U. S.
715 ................................................................................... 5,8,9

Casey v. Plummer, 353 U. S. 924, aff’g Derrington v.
Plummer, 240 F. 2d 922 (5th Cir. 1956) ......................... 5

City of Greensboro v. Simkins, 246 F. 2d 425 (4th Cir.
1957) .................................................................................  5

City of St. Petersburg v. Alsup, 238 F. 2d 830 (5th 
Cir. 1956) 6



PAGE

Clemons v. Board of Education of Hillsboro, 228 F. 2d
853 (6th Cir. 1956) .........................................................  9

Coke v. City of Atlanta, 184 F. Supp. 579 (N. D. Ga. 
1960) ................................................................................. 6

Department of Conservation and Development v. Tate,
231 F. 2d 615 (4th Cir. 1956) ........................................  5

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956) 
cert. den. sub nom. Casey v. Plummer, 353 U. S. 924 .. 5, 8

Gliioto v. Hampton, 9 L. ed 2d 170, aff’g Hampton v.
City of Jacksonville, 304 F. 2d 320 (5th Cir. 1962) .... 6

Hampton v. City of Jacksonville, 304 F. 2d 320 (5th 
Cir. 1962), cert. den. sub nom. Ghioto v. Hampton,
9 L. ed 2d 170.................................................................  6

Henry v. Greenville Airport Commission, 284 F. 2d 631 
(4th Cir. 1960) ...............................................................  9

MacDuffie v. Hot Shoppes, as yet unreported, No. 123-
62-M-CIV-DD (S. D. Fla., 1962) .................................. 6

McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235
U. S. 151 ...........................................................................  7

Muir v. Louisville Park Theatrical Association, 347 
U. S. 971, vacating and remanding, 207 F. 2d 275 
(6th Cir. 1953) ...............................................................  5

Nash v. Air Terminal Service, 85 F. Supp. 545 (E. D.
Va. 1949) .........................................................................  9

Turner v. City of Memphis, 369 U. S. 350 ....................... 5, 8

S t a t u t e s

Louisiana Revised Statutes, §§26:1, et seq.....................  7

Louisiana Revised Statutes, §§26:340, et seq...................  7

11



In the

llnxttb States (to rt of Appeals
F o r  t h e  F i f t h  C ir c u i t  

No. 19,898

T h e  C i t y  o f  N e w  O r l e a n s , et al.,

—v.—
Appellants,

W i l l i a m  R. A d a m s , et al.,
Appellees.

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

N EW  ORLEANS DIVISION

BRIEF ON BEHALF OF APPELLEES 
WILLIAM R. ADAMS, HENRY E. BRADEN, III, 

AND SAMUEL L. GANDY

Statement of the Case

Appellees do not controvert the Statement of the Case 
set forth in the brief of appellants The City of New Orleans, 
its Mayor, the Manager of the New Orleans International 
Airport and the New Orleans Aviation Board and its 
Chairman. Appellees submit, however, that additional facts 
and circumstances properly should be brought to the at­
tention of this Court.

The facts pertaining to the leasehold agreement entered 
into by the City of New Orleans are admirably summarized 
in the opinion of the district judge which is reported at 
208 F. Supp. 427, 428 (E. D. La. 1962) (R. 167-172). There



2

is no dispute as to the facts in this case (R. 187, 188) and 
the Court found that (R. 167):

“ In 1957, the City of New Orleans and the New 
Orleans Aviation Board, an agency of the city charged 
with the maintenance and operation of the Moisant 
International AirjDort, undertook the construction of 
a new administration and terminal building for the 
airport, which was aided by a substantial loan from 
an agency of the federal government. The land on 
which the building was constructed and the building 
itself were and are now owned and maintained by the 
City and its Aviation Board. On September 30, 1957, 
pursuant to an ordinance passed by the New Orleans 
City Council, the City, after receiving public bids, en­
tered into a lease agreement with a Delaware corpora­
tion styled Interstate Company, and also known as 
Interstate Hosts, Inc., whereby the latter received an 
exclusive franchise to operate and maintain restaurant 
concessions, bars and other facilities serving food and 
beverages at the airport. The lease agreement pro­
vided for rental payment to the City based on a per­
centage of gross receipts from the operation of the 
facilities, with a guaranteed minimum of $5,756,300.00 
over a period of fourteen years. The City reserved 
the right to review and correct deficiencies in the 
quality and quantity of products served, and to re­
duce prices if they were found to be not in accord 
with those in effect at comparable restaurants and 
cocktail lounges in the City of New Orleans. In addi­
tion, the lease provides that Interstate discharge any 
employee deemed undesirable by the Aviation Board.” 
(See R. 28, 34, 35, 43, 44, 47, 48.)'

At the hearing held on appellees’ Motion for Preliminary 
Injunction, the Manager of the food and beverag’e facili­



3

ties admitted that at least fifty Negroes had been refused 
service at the Airport restaurant and bars during the past 
two years “ on the basis of race” (R. 192). The district 
court found that “At present, Interstate Hosts operates 
facilities at the airport known as the Snack Bar, the Coffee 
Shop, Le Bar, the International Room, a restaurant, and 
the Cocktail Lounge, which adjoins the International Room. 
Only the Snack Bar and the Coffee Shop are operated on 
a de-segregated basis, the others not being available to 
members of the Negro race” (R. 168).

Appellees, three Negro citizens of the United States and 
the State of Louisiana brought this action by filing a veri­
fied complaint in the district court on May 23, 1960 (R. 
113-118) which sought to enjoin the City of New Orleans, 
the Interstate Company and their agents from “making 
any distinction based upon race or color in regard to ser­
vice at the Moisant International Airport” (R. 117). Each 
of the appellees had been refused service at the facilities 
operated by the Interstate Company (R. 115, 116). Ap­
pellees’ action was later consolidated with a suit on behalf 
of a similarly situated plaintiff seeking identical relief1 
(R. 185, 7-16, 66).

On June 19, 1961, the City of New Orleans, its agents 
and Interstate Hosts, Inc., filed their answers controverting 
the allegations of the complaint pertaining to acts of racial 
discrimination (R. 130, 131, 134). On June 30, 1961, ap­
pellees moved for Summary Judgment (R. 137) which mo­
tion was denied by the district court (R. 154) on the ground 
that “ genuine issues as to material facts” remained to be 
resolved. On March 30, 1962, appellees moved for a pre­
liminary injunction (R. 155). A hearing was held on this

1 Tliomas P. Harris v. City of New Orleans, et al., Civil Action No. 10,047 
in the Eastern District of Louisiana, New Orleans Division.



4

motion on April 11, 1962 (B. 183-198) at which testimony 
was taken and the policy of racial discrimination in force 
at the Airport food and beverage facilities was admitted 
by the City of New Orleans, its agents and lessee (E. 187, 
188, 190, 192).

On August 2, 1962, the District Court filed its opinion 
(E. 167-172) holding that the “ authorities leave little doubt 
that plaintiffs in the case before the Court are entitled to 
injunctive relief as a matter of law” (E. 171). A pre­
liminary injunction was entered by the Court on August 
14, 1962 enjoining the City of New Orleans, its agents and 
lessee the Interstate Company, from denying Negroes the 
complete, full and unrestricted use of the food and beverage 
service areas and facilities located at the New Orleans 
International Airport (E. 173-174).

The City of New Orleans and its agents filed Notice of 
Appeal on August 16, 1962 (E. 177). The lessee, the Inter­
state Company, filed a Notice of Appeal, but to date has 
filed no brief in this Court (E. 175). The Trial Court 
and this Court denied applications for a stay of the pre­
liminary injunction pending appeal.



5

ARGUMENT

The Fourteenth Amendment Prohibits the Lessee of 
a Municipality, Operating Food and Beverage Facilities 
Under an Exclusive Concession at a City Owned Airport, 
From Refusing to Serve Negroes.

Despite a long and compelling line of authorities ex­
plicitly holding that lessees of governmental bodies are 
subject to the restraints of the equal protection clause of 
the Fourteenth Amendment against discrimination on the 
basis of race, the City of New Orleans contends that the 
District Court erred in enjoining the admitted denial of 
admission to Negroes at leased food and beverage facili­
ties at the publicly owned New Orleans International Air­
port. But the cases do not support the City’s position. In 
fact, it may be said without exaggeration that the consti­
tutional status of a lessee paying substantial rent for the 
use of publicly owned property and providing a service 
beneficial to the public is closed as a litigable issue.

The lessees of government may not make distinctions on 
the basis of race. See Turner v. City of Memphis, 369 U. S. 
350 (airport restaurant); Burton v. Wilmington Parking 
Authority, 365 U. S. 715 (restaurant in parking garage); 
Muir v. Louisville Park Theatrical Association, 347 U. S. 
971, vacating and remanding, 207 F. 2d 275 (6th Cir. 1953) 
(theatre in city park); Derrington v. Plummer, 240 F. 2d 
922 (5th Cir. 1956) cert. den. sub nom. Casey v. Plummer, 
353 U. S. 924 (courthouse restaurant); City of Greensboro 
v. Simkins, 246 F. 2d 425 (4th Cir. 1957) (golf course); 
Department of Conservation and Development v. Tate, 231 
F. 2d 615 (4th Cir. 1956) (parks); Aaron v. Cooper, 261 
F. 2d 97 (8th Cir. 1958) (leased school); Brooks v. City 
of Tallahassee, 202 F. Supp. 56 (N. D. Florida 1961) (air­



6

port restaurant); Coke v. City of Atlanta, 184 F. Supp. 579 
(N. D. Ga. 1960) (airport restaurant); MacDuffie v. Hot 
Shoppes, as yet unreported, No. 123-62-M-CIV-DD (S. D. 
Fla., 1962) (turnpike restaurant). Cf. Hampton v. City of 
Jacksonville, 304 F. 2d 320 (5th Cir. 1962) cert. den. sub 
nom. Gliioto v. Hampton, 9 L. ed 2d 170 (golf course sold; 
city retained reversionary interest. Held: vendees sub­
ject to constitutional restraints against discrimination on 
the basis of race).

Faced with these authorities the City attempts to dis­
tinguish the food and beverage facilities at the NeAV Orleans 
International Airport on the grounds that: (a) the leased 
restaurant is a “ luxury facility” ; (b) alcoholic beverages 
are served at the facilities; and (c) the leased property is 
surplus (Brief of Appellants, p. 4). Each of these at­
tempted distinctions is frivolous.

There is no suggestion in the cases and indeed the City 
does not present authority in support of the proposition 
that the Fourteenth Amendment differentiates between 
public facilities on the basis of the quality of service pro­
vided.2 If economic loss is no defense to racial segrega­
tion, City of St. Petersburg v. Alsup, 238 F. 2d 830, 832 
(5th Cir. 1956), the assertion that elaborate service ex­

cuses compliance with the Constitution is plainly frivolous. 
The claim that “ luxury facilities” are immune from the 
restraints of the Constitution against discrimination on 
the basis of race is analogous to the argument that distinc­
tions based on race should be permitted because only a 
few Negroes will exercise their constitutional rights, but 
the United States Supreme Court long ago rejected such

2 The lessee’s manager testified that the food in the segregated Inter­
national Room was no better than the food served in the desegregated Coffee 
Shop. It is just that in the International Room there is “more elaborate 
service” and higher prices (R. 190, 191).



7

a defense on the ground that it “ makes the constitutional 
right depend upon the number of persons who may be dis­
criminated against whereas the essence of the constitu­
tional right is that it is a personal one” , McCabe v. 
Atchison, Topeka and Santa Fe Ry. Co., 235 U. S. 151, 161.

Appellants’ contention that the public has not “ con­
structed space in a public building so that persons having 
occasion to go to that building can enjoy an alcoholic 
stimulant while there” (Brief for Appellants, p. 7) borders 
on the unreal. It need only be pointed out that the Terms 
and Conditions for the Restaurant Concession prepared by 
the New Orleans Aviation Board and agreed to by the 
lessee provide for the sale of alcoholic beverages (R. 34, 
35, 46) and that the City has contracted to receive 12% 
“ on gross sales derived each month from all liquor, wine, 
beer and ale, including cordials” (R. 47).3

The claim that the leased food and beverage facilities 
at the New Orleans International Airport are operated on 
“ surplus property” is contradicted by the City’s own repre­
sentations in the lease that “ In entering into this restaurant 
concession in the new terminal building at the Moisant 
International Airport, the Board has foremost in mind 
providing the public and the air traveler with restaurant 
facilities, service and beverages of high quality commen­
surate with the trade that is accustomed to using modern 
facilities of this land” (R. 46).

N̂o court ever has held that leased property was “ surplus” 
and thereby immune from the requirements of the Four­
teenth Amendment, notwithstanding the suggestion in

3 The State has a substantial financial interest in the taxes from every 
gallon of liquor sold in Louisiana ({§26 :340 et seq., Louisiana Revised Stat­
utes), and the State is intimately involved in regulation of the sale and 
manufacture of alcoholic beverages ({ {2 6 :1  et seq., Louisiana Revised Stat­
utes).



8

Derrington v. Plummer, 240 F. 2d 922, 925 (5th Cir. 1956). 
Indeed, the restaurant in the Derrington case was held to 
be non-surplus because used for a public purpose, i.e., it 
was located in a building built with public funds for the 
use of the citizens generally and the express purpose of 
the lease was to furnish food service for the persons having 
business in the building. Identical facts are present in 
the instant case. Moreover, in this case, the claim that 
the property leased is surplus is patently frivolous in light 
of the undisputed admission that the asserted “ surplus 
property” produces for the City a guaranteed minimum 
rental of over five million dollars over a 14 year period 
and that the City’s rent is computed on the basis of a 
percentage of gross sales. The concession area, as clearly 
revealed from the lease, is a financially and physically in­
tegral part of the Airport operated by the City. Burton 
v. Wilmington Parking Authority, 365 U. S. 715, 724.

Appellants’ claim that the holdings of the Burton case 
and of Turner v. Memphis, 369 U. S. 350, do not control the 
present case is untenable.4 All the factors found sufficient 
to bring the leased premises in those cases within the 
purview of the Fourtenth Amendment are present here. 
The leased premises are publicly owned and are located 
within and form an integral part of a building maintained 
and operated by governmental agents for the use of the 
public under a lease and concession arrangement with ob­
vious benefits, financial and otherwise, to governmental 
agencies. Indeed, here, as in Burton, the existence of segre­
gated and nonsegregated facilities beneath the same mu­
nicipal roof accents the irrationality of the practice now

4 It should be noted that the average annual minimum rent paid to the 
City of New Orleans under the lease is over ten times greater than the rent 
payed by the restaurant to the Municipal Parking Authority in Burton. See 
365 U. S. at 720.



9

scrutinized by this Court. The Court in Burton, 365 U. S. 
at 724, characterized such a situation as “ irony amounting 
to grave injustice.”

The facts in this case are undisputed, the law to be ap­
plied is clear, irreparable injury is established by evidence 
of a clear and continued deprivation of constitutional 
rights.5 In such circumstances a “ District Court has no 
discretion to deny relief by preliminary injunction to a 
person who clearly establishes by undisputed evidence that 
he is being denied a constitutional right”, Henry v. Green­
ville Airport, 284 F. 2d 631, 633 (4th Cir. 1960). See Judge 
Rives’ dissenting in Bailey v. Patterson, 199 F. Supp. 595, 
622 (S. D. Miss. 1961) vacated and remanded, 369 U. S. 31 
(“ The defendants should not be allowed to rely upon their 
own continued unconstitutional behavior for the purposes 
of defeating a motion for preliminary injunction” ) ; 
Clemons v. Board of Education, 228 F. 2d 853, 857 (6th 
Cir. 1956); Board of Supervisors of Louisiana State Uni­
versity v. Wilson, 340 U. S. 909, affirming 92 F. Supp. 986 
(E. D. La. 1956).

The holding of the District Court that there is “ little 
doubt that plaintiffs in the case before this Court are en­
titled to injunctive relief as a matter of law” (R. 171) is 
amply supported by the facts and applicable precedents 
and should be affirmed.

5 Appellees would be entitled to relief even if  the “separate-but-equal” 
doctrine were an acceptable Constitutional standard, for the only “luxury” res­
taurant and the only bars in the airport are segregated (E. 190, 191). See 
Nash v. Air Terminal Service, 85 F. Supp. 545 (E. D. Va. 1949).



10

CONCLUSION

W h e r e f o r e , for the foregoing reasons, appellees pray 
this Court affirm the judgment of the Court below.

Respectfully submitted,

J a c k  G r e e n b e r g  
J a m e s  M .  N a b r i t , I I I  
M i c h a e l  M e l t s n e r

10 Columbus Circle 
New York 19, NeAV York

A. P. T u r e a tjd

1821 New Orleans Avenue 
New Orleans, Louisiana

Attorneys for Appellees



3 8