Orleans Parish School Board v. Bush Appeal

    UNITED STATES

COURT OF APPEALS

FIFTH CIRCUIT

No.

ORLEANS PARISH SCHOOL BOARD,
Appellant,

versus

EARL BENJAMIN BUSH, ETAL,
Appellees.

Appeal from the United States District Court, Eastern 
District of Louisiana, New Orleans Division



I N D E X

Caption ................................................................................. : 1

Plaintiff’s First Amended Com plaint.................................  1

Answer of Defendant to Plaintiff’s First
Amended Complaint ..................................................... 14

Motion for Judgment on the
Pleadings on Behalf of Plaintiffs ..............................20

Affidavit of James Robert Nicholas ..............................21

Affidavit of Oliver Bush, Sr.................................................24

Motion 'to Dismiss .................................................................27

Order Denying Motion of Defendant to Dismiss .............. 28

Minute Entry ........................................................................ 31

Motion for Re-Hearing .........................................................32

Motion for Stay of Proceedings ......................................... 33

Petition for Declaratory Judgm ent..................................... 40

Order Denying Motion of Defendant for
Rehearing and to Stay ................................................. 51

Final Decree ............................................................................ 53

Notice of Appeal .................................................................... 54
Designation of Record on Appeal to United States

Court of Appeals for Fifth Circuit ..............................55

Statement of Points relied on in the Appeal to the 
United States Court of Appeals for the 
Fifth Circuit .................................................................... 58

Clerk’s Certificate .................................................................60



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

No. 3630 Civil Action

OLIVER BUSH, JR , ET ALS. 

versus

ORLEANS PARISH SCHOOL BOARD et al.

APPEARANCES:
Gerard A. Rault, Esq,

Attorney for Defendant-Appellant

A. P. Tureaud, Esq,
Attorney for Plaintiffs-Appellees

Appeal from the United States District Court, Eastern 
District of Louisiana, New Orleans Division.

PLAINTIFF’S FIRST AMENDED COMPLAINT

(Number and Title Omitted)
Filed: August 18, 1955

I.

1. The jurisdiction of this Court is invoked under Sec 
tion 1331, Title 28, United States Code, this being an ac



2

tion that arises under the Fourteenth Amendment of the 
Constitution of the United States, Section 1, and Section 
1981 of Title 42, United States Code, wherein the matters 
in controversy exceed the sum and value of Three Thou­
sand ($3,000.00) Dollars, exclusive of interest and costs.

2. The jurisdiction of the Court is also invoked under 
Section 1343, Title 28, United States Code, this being an 
action authorized by Section 1983, Title 42, United States 
Code, to be commenced by any citizen of the United 
States, or other person within the jurisdiction thereof, 
to redress the deprivation, under color of a state law, 
statute, Ordinance, regulation, custom or usage, of rights, 
privileges and immunities secured by the Fourteenth 
Amendment of the Constitution of the United States, Sec­
tion 1, and Section 1981 of Title 42, United States Code, 
which provides for the equal rights of citizens and all per­
sons within the jurisdiction of the United States.

II.

INJUNCTIVE RELIEF

The jurisdiction of this Court is also invoked under Sec­
tion 2281, of Title 28, United States Code, this being an 
action for injunctive relief, both temporary and perman­
ent, to enjoin and restrain the enforcement, execution, or 
operation of certain statutes and constitutional provisions 
of the State of Louisiana, to be set out more fully herein­
after, and to enjoin and restrain the enforcement, execu­
tion, or operation of certain arbitrary, fraudulent, and un­
reasonable rules and regulations promulgated by certain 
administrative officers of the State of Louisiana pursuant



3

to the statutes and constitutional provisions complained of 
herein.

III.

DECLARATORY JUDGMENT

This is a proceeding under sections 2201 and 2202, of 
Title 28, United States Code, for a declaratory judgment 
to determine and define the rights and legal relations 
of plaintiffs in the subject matters of this controversy, and 
for a final adjudication of all matters in actual controversy 
between the parties to this cause, to wit, the question:

Whether the enforcement, execution, or op­
eration of Article 12, Section 1, of the Constitution 
of Louisiana, and Sections 10.1, 81, and 331, of' Title 
17, Louisiana Revised Statutes, by the defendant 
Orleans Parish School Board, and the administra­
tive officers of the defendant board, against plain­
tiffs and the class of persons that they represent 
because of their race and color, deny to them the 
privileges and immunities as citizens of the United 
States, and the equal protection of laws secured to 
them by Section 1, of the Fourteenth Amendment 
of the Constitution of the United States, or rights 
and privileges secured to them by Section 1981, 
of Title 42, United States Code, and are, for those 
reasons unconstitutional and void?



4

IV.

CLASS ACTION

Plaintiffs allege that they are members of the Negro 
race; that they are citizens of the State of Louisiana and 
domiciled in the Parish of Orleans within the State of 
Louisiana; that they are among the persons generally 
classified as “colored” children within the meaning of 
Louisiana law; that they bring this action in their own be­
half by their next friends, and in behalf of all other Negro 
or “colored” persons within Orleans Parish, Louisiana, 
who are similarly situated as a class; 'that the members of 
the class are numerous and constitute a class that is so 
numerous as to make it impracticable to bring all of them, 
before this Court; that plaintiffs, as members of the class 
both can and will adequately and fairly represent all of 
the members of the class; that the character of the right 
sought to be enforced for the class is several, and that there 
is a common question of law affecting the several rights and 
a common relief is sought. This action is brought pursuant 
to Rule 23(a)(3), Federal Rules of Civil Procedure.

V.

FACTS

1. Plaintiffs allege that they are, each of them, minors, 
under the age of 21 years and they bring this action by 
their next friends, pursuant to Rule 17(c), Federal Rules 
of Civil Procedure.



5

2. Plaintiffs are, each of them, residents of the City 
of New Orleans, Orleans Parish, Louisiana, and they are, 
each of them, fully qualified and entitled to attend the 
public schools of the City of New Orleans, Orleans Par­
ish, Louisiana, that are operated by the defendant Or­
leans Parish School Board. They are within the statutory 
age limits of eligibility 'to attend the public schools of Or­
leans Parish, Louisiana; they satisfy all of the requirements 
for admission to such schools, and are in fact attending 
the public schools of Orleans Parish under the supervision 
of the Defendant Orleans Parish School Board.

3. Plaintiffs comprise two general categories of stu­
dents, ie, those who are eligible to attend and are attending 
public elementary schools on a separated and segregated 
classification as to race and color, and those who are eligible 
to and are attending public secondary schools of Orleans 
Parish, Louisiana on a separated and segregated classi­
fication as to race and color, pursuant to Louisiana laws 
and constitutional provisions.

4. The State of Louisiana has made public education 
a part of 'the organic law of the State, and the State Leg­
islature has made racial segregation a part of this organic 
law.

Article 12, Section 1, of the Constitution of Louisiana 
provides:

The Legislature shall provide for a public edu­
cational system of the state to consist of all public 
schools and all institutions of learning operated 
by State agencies and enact laws on all matters



6

regarding the terms and qualifications for ad­
mission to the public schools . . .

All public elementary and secondary schools 
in the State of Louisiana shall be operated sep­
arately for white and colored children. (Acts of 
1932, No. 141, and amendments thereto including 
Acts of 1954, No. 752, adopted Nov. 2, 1954).

5. Acting pursuant to this mandate in the organic laws 
of the State, the Legislature of Louisiana has enacted Stat­
utes to' implement these constitutional demands.

Section 81.1, of Title 17, Louisiana Revised Statutes 
provides:

Each Parish superintendent of schools, through­
out this state, shall, each year, determine the par­
ticular public school within each parish to be at­
tended by each school child applying for admission 
to public schools. No school child shall be entitled 
to be enrolled or to enter into a public school until 
he has been assigned thereto in accordance with the 
provisions of this section. (Acts of 1954, No. 556, 
Section 1).

Section 331, titled Separate Operation Required 
— Title 17, Louisiana Revised Statutes, pro­
vides:

All public elementary and secondary schools in 
the state of Louisiana shall be operated separate-



7

ly for white and colored children. (Acts 1954, No.
555, Section 1).

6. Plaintiffs allege that the Orleans Parish School Board 
is a body corporate made so by the laws of the State of 
Louisiana. (Title 17, Section 51, Louisiana Revised Statu­
tes).

7. Plaintiffs allege that the defendant Orleans Parish 
School Board is vested with power and authority by the 
laws of the State of Louisiana to locate and construct 
schools; to employ teachers and fix their salaries; to make 
rules and regulations for the management and control 
of the schools under its supervision and control and to 
enforce the general education laws of the State. (Title 17, 
Section 51, Louisiana Revised Statutes).

8. Plaintiffs allege that the defendant James F. Red­
mond is a citizen of the United States and of the State of 
Louisiana; he is domiciled at the City of New Orleans, 
Parish of Orleans, State of Louisiana and within the terri­
torial limits of the jurisdiction of this Court. He is the 
duly designated, qualified and acting Superintendent of 
Public Schools of Orleans Parish; he is an agent of the 
defendant Orleans Parish School Board and an adminis­
trative officer of the State of Louisiana, with power and 
authority to execute and enforce the general education 
laws of the State. He is sued in his official capacity.

9. The defendant Orleans Parish School Board is a 
body corporate with powers to sue and be sued; it is an 
administrative agency of the State of Louisiana and an in­
strumentality of the state and it discharges duties and func­



8

tions vested in it by the general education laws of the state. 
It is sued in its corporate name and form.

10. The adult plaintiffs, not applicants, are, each of them, 
citizens of the United States and of the State of Lou­
isiana; they are, each of them, domiciled in the City of 
New Orleans, Orleans Parish, Louisiana, and within the 
jurisdiction and control of the Orleans Parish School Board; 
they are the parents or guardians, and next friend of the 
minor plaintiffs and applicants herein. They bring this 
action in behalf of their respective minor children or wards, 
as next friends pursuant to Rule 17(c), Federal Rules of 
Civil Procedure.

11. Plaintiffs allege that on or about June 16, 1955, and, 
on or about July 10, 1955, they, and each of them, petitioned 
the defendant Orleans Parish School Board to take im­
mediate steps to reorganize the public schools under its 
jurisdiction and control on a non-discriminatory basis, so 
that the children of public school age attending and en­
titled to attend the public schools under the supervision 
and control of the said defendant board can not, and, will 
not be denied admission to any school, or be required to 
attend any particular school, or be assigned to any particular 
school on the basis or classification of race, or color, or na­
tional origin.

12. Plaintiffs allege that the defendant James F. Red­
mond, acting in his official capacity as Superintendent of 
the Orleans Parish Public Schools, and as an agent, servant 
and employee of the defendant Orleans Parish School Board, 
and as an agent and administrative officer of the State 
of Louisiana, has, and will determine the particular pub-



9

lie school at which they, and each of them, may attend; 
that they, and each of them, are deprived of and denied the 
right or privilege of enrolling, or entering any public 
school under the supervision, or control of the defend­
ant Orleans Parish School Board, until and after the 
defendant James F, Redmond, while acting in his official 
capacity as Superintendent of Public Schools of Orleans 
Parish, has assigned them, and each of them, to a par­
ticular school; that such assignment to a particular pub­
lic school under the supervision of the defendant school 
board will be made on the basis of classification of race, 
color or national origin; that such assignment will be on 
a separate or segregated basis or classification of race, 
color and national origin, contrary to and in violation 
of the Constitution and laws of the United States, unless 
the defendants and each of them are restrained and en­
joined by this Court.

13. Plaintiffs, and each of them, and the members of 
the class of persons whom they represent suffer and are 
threatened with irreparable injury and harm by the acts 
of the defendants James F. Redmond and the defendant 
Orleans Parish School Board, hereinbefore complained of, 
and that 'they have no plain, adequate, or efficient remedy 
at law to redress the wrongs complained of other than this 
suit for declaratory judgment and injunctive relief both 
temporary and permanent; that any other remedy would 
be attended by such uncertainties and delays as to deny 
plaintiffs substantial relief; would involve a multiplicity of 
suits, cause further irreparable injury and occasion dam­
ages, vexation and hardship, not only to plaintiffs and those 
similarly situated whom plaintiffs represent, but to de­
fendants as governmental agencies.



10

VI.

PRAYER

WHEREFORE plaintiffs respectfully pray:

1. That the Court, convene a Three-Judge Court as re­
quired by Sections 2281, and 2284, of Title 28, United 
States Code.

2. That the Court advance this cause on the docket 
and order a speedy hearing on the application for tempor­
ary injunction, and upon such hearing:

(a). Issue a temporary injunction, or restrain­
ing order, enjoining and restraining the defend­
ant James F. Redmond, and the defendant Or­
leans Parish School Board, a corporation, and each 
of them, their agents, their servants, their em­
ployees, their successors in office, their attorneys, 
and all persons in concert with them who shall 
receive notice of the order, from enforcing either 
Section 1, of Article 12, of the Constitution of 
Louisiana, or Sections 81.1, or 331 of Title 17, of 
the Louisiana Revised Statutes, against plaintiffs, 
or any of them, or against any member of the class 
of persons that plaintiffs represent, for the reas­
on that Section 1, of Article 12, of the Constitution 
of Louisiana, and Sections 81.1 and 331, of Title 
17 of the Louisiana Revised Statutes deny to plain­
tiffs and the class of persons that they repre­
sent their privileges and immunities, and the equal 
protection of the laws, secured to them by Sec­



11

tion 1, of the Fourteenth Amendment of the Con­
stitution of the United States, and their civil rights 
as guaranteed to them by Sections 1981 and 1983 
of Title 42, United States Code, and are for these 
reasons unconstitutional and void.

3. That after this cause has been heard on its merits, 
the Court enter a final judgment, order and decree that 
will be declarative of the legal rights and relations of 
plaintiffs, and the class of persons that they represent 
in the subject matters in controversy in this action.

4. That the Court enter a final judgment, order and 
decree which will declare that Section 1, of Article 12, of 
the Constitution of Louisiana is unconstitutional and void 
for the reason that it deprives and denies to plaintiffs, and 
the class of persons that they represent, their privileges 
and immunities as citizens of the United States, and the 
equal protection of the laws secured to them by Section 
1, of the Fourteenth Amendment of the Constitution of 
the United States, and of rights and privileges secured 
to them by Sections 1981 and 1983 of Title 42, United 
States Code.

5. That the Court enter a final judgment, order and 
decree which will declare that Sections 81.1 and 331 of 
Title 17 of the Louisiana Revised Statutes unconstitutional 
and void, for the reason that they deprive and deny to 
plaintiffs and the class of persons that they represent, their 
privileges and immunities as citizens of the United States, 
and the equal protection of the laws secured to them by 
Section 1, of 'the Fourteenth Amendment of the Constitu­
tion of the United States, and rights and privileges secured



12

to them by Sections 1981 and 1983 of Title 42, United 
States Code.

6. That the Court enter a permanent injunction forever 
restraining and enjoining the defendant James F. Red­
mond and the defendant Orleans Parish School Board, a 
corporation, and each of them, their agents, their servants, 
their employees, their successors in office, their attorneys, 
and those in concert with them who shall receive notice of 
the order from enforcing or executing, either Section 1 
of Article 12, of the Constitution of Louisiana, or Sections 
81.1 or 331 of Title 17 of the Louisiana Revised Statutes, 
against plaintiffs, or any of them, or against any member 
of the class of persons that plaintiffs represent, for the 
reason that Section 1, of Article 12 of the Constitution of 
Louisiana, and Sections 81.1 and 331 of Title 17 of the 
Louisiana Revised Statutes deny to plaintiffs and the class 
of persons that they represent their privileges and im­
munities as citizens of the United States, and the equal 
protection of the laws, secured to them by Section 1, of 
the Fourteenth Amendment of the Constitution of the 
United States and their civil rights as guaranteed to them 
by Sections 1981 and 1983 of Title 42, United States Code, 
and are for those reasons unconstitutional and void.

7. That the Court allow plaintiffs their costs herein, 
and grant such other and further relief as may appear prop­
er and just in the premises.

(Signed) A. P. TUREAUD 
A. P. Tureaud



13

(Signed) A. M. TRUDEAU, JR.
A. M. Trudeau, Jr.
1821 Orleans Avenue 
New Orleans, Louisiana

(Signed) U. SIMPSON TATE 
U. Simpson Tate 
2600 Flora Street 
Dallas, Texas

(Signed) ROBERT L. CARTER 
Robert L. Carter

(Signed) THURGOOD MARSHALL 
Thurgood Marshall 
107 West 43.rd Street 
New York 36, New York

Attorneys for Plaintiffs

CERTIFICATE

PARISH OF ORLEANS 
STATE OF LOUISIANA

I, A. P. Tureaud, one of the Attorneys of Record herein, 
having been first duly sworn according to law, on my oath 
depose and say, that I have read the foregoing complaint 
by me subscribed and know the contents thereof and that 
the same is true of my own knowledge, except as to matters



14

stated to be alleged on information and belief, and that as 
to this matter, I verily believe it to be true.

(Signed) A. P. TUREAUD 
A. P. Tureaud

SUBSCRIBED AND SWORN to before me this the 20th 
day of August, 1955.

(Signed) BENJAMIN J. JOHNSON 
NOTARY PUBLIC

ANSWER OF DEFENDANT TO 
PLAINTIFF’S 1st AMENDED COMPLAINT

(Number and Title Omitted)

Filed: March 5, 1958

FIRST DEFENSE

Defendant reserves and renews all the defenses hereto­
fore filed herein and files this answer, subject to said ex­
ceptions, not admitting that it is a proper party defendant 
herein.

SECOND DEFENSE

To the allegations of Plaintiffs’ First Amended Com­
plaint defendant answers as follows:



15

I.

(a) The allegations of this paragraph with reference 
to the sections of United States Code and the Fourteenth 
Amendment of the Constitution of the United States are 
conclusions of law which defendant is not called upon to 
answer, however, if defendant is required to answer same 
the allegations are denied for lack of sufficient information 
to justify belief. Defendant denies that the matters in con­
troversy exceed the sum of $3000 exclusive of interest and 
costs.

(b) The allegations of this paragraph with reference 
to the sections of the United States Code and the Four­
teenth Amendment of the Constitution of the United States 
are conclusions of law which defendant is not called upon 
to answer, however, if defendant is required to answer 
same, the allegations are denied for lack of sufficient in­
formation to justify belief.

II.

The allegations of paragraph II are conclusions of law 
which defendant is not called upon to answer, how­
ever, if defendant is required to answer same, they are de­
nied for lack of sufficient information to justify belief.

III.

The allegations of Paragraph III are conclusions and 
questions of law which defendant is not called upon to 
answer, however, if defendant is required to answer same,



16

they are denied for lack of sufficient information to justi­
fy  belief.

IV.

The allegations of paragraph IV are denied for lack of 
sufficient information to justify belief.

V.

1. The allegations of paragraph V (1) are denied for 
lack of sufficient information to justify belief.

2. For lack of sufficient information to justify belief, 
defendant denies that plaintiffs are residents of the City 
of New Orleans, Orleans Parish, Louisiana; that they are 
fully qualified and entitled to attend the public schools 
in New Orleans that are operated by defendant; that they 
are within the statutory age limits of eligibility to attend 
the public schools of New Orleans; that they satisfy all 
the requirements for admission to such schools. Defend­
ant admits that as of the date of filing of the First Amend­
ed Complaint plaintiffs were attending the public schools of 
New Orleans under the supervision of defendant.

3. Defendant admits that as of the date of filing the 
First Amended Complaint plaintiffs comprised two general 
categories of students, those who were attending public 
elementary schools and those who were attending public 
secondary schools on a segregated basis pursuant to Lou­
isiana laws and Constitutional provisions. Defendant de­



17

nies for lack of sufficient information to justify belief all 
other allegations of said paragraph.

4. The allegations of paragraph V(4) are statements 
and conclusions of law which defendant is not called upon 
to admit or deny.

5. The allegations of paragraph V (5) are statements and 
conclusions of law which defendant is not called upon to 
admit or deny.

6. The allegations of paragraph V(6) are admitted.

7. The allegations of paragraph V(7) are admitted.

8. Inasmuch as this action against James F. Redmond 
has been dismissed defendant is not called upon to answer 
the allegations of paragraph V(8) of plaintiffs’ complaint. 
However, if defendant is required to answer same, de­
fendant admits that James F. Redmond is a citizen of the 
United States, State of Louisiana, domiciled in the City of 
New Orleans, State of Louisiana, within the territorial lim­
its of the jurisdiction of this Court, that he is the duly 
designated, qualified and acting superintendent of public 
schools of Orleans Parish, that he is an agent of the de­
fendant, Orleans Parish School Board and administrative 
officer of the State of Louisiana. Defendant denies that he 
has the power to execute and enforce the general education 
laws of the State of Louisiana except when acting under in­
structions of defendant.



18

9. Defendant admits that it is a body corporate with 
powers to sue or be sued as limited by the laws of the State 
of Louisiana. It admits that it is an administrative agency 
of the State of Louisiana and an instrumentality of 'the State 
and that it discharges duties and functions vested in it by 
the general education laws of the State of Louisiana.

10. The allegations of paragraph V(10) are denied for 
lack of sufficient information to justify belief.

11. The allegations of paragraph V ( l l )  are denied for 
lack of sufficient information to justify belief.

12. The allegations of paragraph V(12) are denied.

13. The allegations of paragraph V(13) are denied.

VI.

Further answering, defendant avers that it appears that 
all of the allegations of plaintiffs’ original complaint have 
been superseded by the allegations of plaintiffs’ so-called 
“First Amended Complaint” and that therefore, defendant 
is not called upon to answer the original complaint. How­
ever, if defendant is required to answer same, defendant ad­
mits the allegations hereinabove admitted and denies all 
other allegations for lack of sufficient information to justify 
belief.



19

WHEREFORE, defendant prays that plaintiffs’ complaint 
be dismissed at their cost; and for all general and equitable 
relief.

(Signed) GERARD A. RAULT 
GERARD A. RAULT 
of
BROWNE & RAULT 
Attorneys for Defendant 
803 American Bank Building 
New Orleans, Louisiana

CERTIFICATE

I, Gerard A. Rault, Attorney for Defendant, Orleans 
Parish School Board, hereby certify that a copy of the 
above and foregoing Answer has 'this day been served on 
A. P. Tureaud, Esquire, counsel for Plaintiffs by mailing 
a copy of same to his office at 1821 Orleans Avenue, New 
Orleans, La.

New Orleans, Louisiana, March 5th, 1958.

(Signed) GERARD A. RAULT 
GERARD A. RAULT



20

MOTION FOR JUDGMENT ON THE PLEADINGS 
ON BEHALF OF PLAINTIFFS

(Number and Title Omitted)

Filed: March 27, 1958

Come now the plaintiffs herein by their undersigned 
attorneys and move the Court for entry of judgment on 
the pleadings in favor of plaintiffs herein and the class 
they represent on the ground that plaintiffs are entitled 
to judgment as a matter of law on the undisputed facts ap­
pearing in the pleadings.

(Signed) A. P. TUREAUD 
A. P. Tureaud 
1821 Orleans Avenue 
New Orleans 16, Louisiana

(Signed) A. M. TRUDEAU, JR (per A.T.) 
A. M. Trudeau, Jr.
1821 Orleans Avenue 
New Orleans 16, Louisiana

(Signed) ROBERT L. CARTER 
Robert L. Carter 
20 West 40th Street 
New York 18, New York

(Signed) THURGOOD MARSHALL 
Thurgood Marshall 
10 Columbus Circle 
Suite 1790
New York 19, New York 
Attorneys for Plaintiffs



21

AFFIDAVIT OF JAMES ROBERT NICHOLAS

Filed: April 12, 1958

STATE OF LOUISIANA 
PARISH OF ORLEANS

BEFORE ME, the undersigned authority personally came 
and appeared:

JAMES ROBERT NICHOLAS 
who being by me first duly sworn deposed and said that 
he is a citizen of the United States and of the State of 
Louisiana; that he resides in New Orleans, Louisiana and 
is domiciled in New Orleans;

That he is a member of the Negro or “ colored” race and 
of African descent; that he is the parent of the minor plain­
tiffs

Jimmye Nicholas, aged 11, born in the City of 
New Orleans on July 9, 1946.

Hazel Nicholas, aged 13, born in the City of 
New Orleans on December 11,1944.

That said minor plaintiffs have no tutor;

That they live and reside in New Orleans, Louisiana 
and are domiciled in the City of New Orleans; that they 
are members of the Negro or “colored” race and are of 
African descent; that they have met all lawful require­
ments for admission to the public schools of the State of



22

Louisiana and particularly the schools in the City of New 
Orleans; that they are in all material respects eligible to 
register, enroll, enter, attend classes and receive instruc­
tion in the public, elementary and secondary schools of 
Orleans Parish and the city of New Orleans, Louisiana;

That he has petitioned the Orleans Parish School Board, 
to permit his minor children to matriculate, register, en­
roll, enter, attend classes and receive instruction in the 
public schools of New Orleans on a non-segregated and 
non-discriminatory basis without any distinctions being 
made as to them because of their race and color; that the 
Orleans Parish School Board failed and refused tô  permit 
his minor children to matriculate, register, enroll, enter, at­
tend classes and receive instruction in the public ele­
mentary and secondary schools of New Orleans on a non- 
segregated and non-discriminatory basis; that the said 
Orleans Parish School Board, has made a determination 
of the particular school within the City of New Orleans 
to which the affiant’s minor children shall attend; that 
the determination was made on the basis and classification 
of the race and color of the affiant and his minor children; 
that the Orleans Parish School Board has assigned the af­
fiant’s minor children to a particular public school in 
New Orleans on the basis and classification of their race 
and color and that the said Orleans Parish School Board 
has continued to so assign the affiant’s minor children 
to a particular school or schools on the basis and classifica­
tion of their race;

That because of the unlawful acts and deeds of the de­
fendant Orleans Parish School Board in failing and re­
fusing to permit affiant’s minor children to matriculate,



23

register, enter, enroll, attend classes and receive instruc­
tion in the public elementary and secondary schools of 
Orleans Parish on a non-segregated and non-discriminatory 
basis without any distinctions being made as to them be­
cause of their race and color, and of determining the par­
ticular public school or schools in the said parish to which 
affiant’s minor children may attend on the basis of the 
race or color and of assigning affiant’s minor children to 
the public schools in the said parish on the classification 
of their race and color and of enforcing against them the 
statutes and laws of the State of Louisiana because of their 
race and color;

That they have in the past, are now, and will continue 
in the future to suffer irreparable harm, injury and dam­
age to their rights as citizens of the United States.

(Signed) JAMES ROBERT NICHOLAS

Sworn to and subscribed before me this 10th day of April, 
1958.

(Signed) A. P. TUREAUD
NOTARY PUBLIC

(SEAL)



24

AFFIDAVIT OF OLIVER BUSH, SR.

Filed: April 12, 1958

STATE OF LOUISIANA 
PARISH OF ORLEANS

BEFORE ME, the undersigned authority personally came 
and appeared:

Oliver Bush, Sr.,
who being by me first duly sworn deposed and said that 
he is a citizen of the United States and of the State of Lou­
isiana; that he resides in New Orleans, Louisiana and is 
domiciled in the City of New Orleans;

That he is a member of the Negro or “colored” race and 
of African descent; that he is the parent of the minor 
plaintiffs

Gail Faye Bush, aged 16, born in the city of 
New Orleans on April 12, 1942;

Leon Bush, aged 15, born in the city of New 
Orleans on May 29, 1943;

Loretta Bush, aged 14, bom  in the city of New 
Orleans on December 22,1944;

Lorraine Bush, aged 14, born in the city of New 
Orleans on December 22,1944;



25

Donald Bush, aged 17, bom in the city of New 
Orleans on March 28,1941;

That said minor plaintiffs have no tutor.

That they live and reside in New Orleans, Louisiana and 
are domiciled in the City of New Orleans; that they are 
members of the Negro or “ colored” race- and are of Afri­
can descent; that they have met all lawful requirements 
for admission to the public schools of the State of Louisiana 
and particularly the schools in the city of New Orleans, 
State of Louisiana; that they are in all material respects 
eligible to register, enroll, enter, attend classes and receive 
instruction in the public, elementary and secondary schools 
of Orleans Parish and the city of New Orleans, Louisiana;

That he has petitioned the Orleans Parish School Board 
to permit his minor children to matriculate, register, enroll, 
enter, attend classes and receive instruction in the public 
schools of New Orleans on a non-segregated and non-dis- 
crimina'tory basis without any distinctions being made as 
to them because of their race and co-lo-r; that the Orleans 
Parish School Board failed and refused to permit his 
minor children to matriculate, register, enroll, enter, at­
tend classes and receive instruction in the public elemen­
tary and secondary schools of New Orleans on a non-segre­
gated and non-discrimina'tory basis; that the said Orleans 
Parish School Board has made a determination of the par­
ticular school within the City of New Orleans to which the 
affiant’s minor children shall attend; that the determination 
was made on the basis and classification of the race and 
color of the affiant and his minor children; that the Or­
leans Parish School Board has assigned the affiant’s min­



or children to a particular public school in New Orleans 
on the basis and classification of their race and color 
and that 'the said Orleans Parish School Board has con­
tinued to so assign the affiant’s minor children to a par­
ticular school or schools on the basis and classification 
of their race;

That because of the unlawful acts and deeds of the de­
fendant Orleans Parish School Board in failing and re­
fusing to permit affiant’s minor children to matriculate, 
register, enter, enroll, attend classes and receive instruc­
tion in the public elementary and secondary schools of Or­
leans Parish on a non-segrcgated and non-discriminatory 
basis without any distinctions being made as to them be­
cause of their race and color, and of determining the par­
ticular public school or schools in the said parish to which 
affiant’s minor children may attend on the basis of the 
race or color and of assigning affiant’s minor children to 
the public schools in the said parish on the classification 
of their race and color and of enforcing against them the 
statutes and laws of the State of Louisiana because of their 
race and color;

That they have in the past, are now, and will continue in 
the future to suffer irreparable harm, injury and damage 
to their rights as citizens of the United States,

(Signed) OLIVER BUSH, SR.

Sworn to and subscribed before me this 11th day of 
April, 1958.

(Signed) A. P. TUREAUD
NOTARY PUBLIC

(SEAL)



27

Filed: April 16, 1958

Now into Court, through undersigned counsel comes 
defendant, Orleans Parish School Board and moves that 
this action be dismissed on the ground that in view of the 
provisions of Louisiana Revised Statutes 17:341, 342, 343 
and 344 said Orleans Parish School Board is not a proper 
party defendant herein.

MOTION TO DISMISS

(Number and Title Omitted)

(Signed) GERARD A. RAULT 
Gerard A. Rault
Attorney for Defendant, Orleans 
Parish School Board,
803 American Bank Building 
New Orleans, Louisiana.

CERTIFICATE

I certify that a copy of the above and foregoing motion 
to dismiss has this day been served on A. P. Tureaud, at- 
tomey for plaintiff, by mailing a copy of same addressed to 
him at his office in the city of New Orleans, at 1821 Or­
leans Avenue, on this 16th day of April, 1958,

(Signed) GERARD A. RAULT 
Gerard A. Rault.



28

ORDER DENYING MOTION OF DEFENDANT 
TO DISMISS

(Number and Title Omitted)

Filed: July 1, 1958

A. P. Tureaud 
A. M. Trudeau, Jr.

Attorneys for Plaintiffs

Browne and Rault 
Gerard A. Rault

Attorneys for Defendants

WRIGHT, District Judge:

This litigation is long standing. On February 15, 1956 
this Court, after declaring certain state laws compelling 
segregation in the public schools of the State of Louisiana 
unconstitutional,1 restrained and enjoined this defendant, 
and persons acting in concert with it, from “requiring and 
permitting segregation of the races in any school under 
their supervision, from and after such time as may be 
necessary to make arrangements for admission of chil­
dren to- such schools on a racially nondiscriminatory basis 
with all deliberate speed as required by the decision of the 
Supreme Court in Brown v. Board of Education of Topeka, 
supra.”

*Bush v. Orleans Parish School Board, 138 F. Supp. 337, a ff  d 5 C ir , 
242 F. 2d 156, cert. den. 354 U.S. 921.



29

In order to avoid the effect of the ruling of this Court 
in this case requiring desegregation in the public schools of 
the City of New Orleans, the legislature of the State of 
Louisiana passed Act 319 of 1956.2 Relying on Section 4s 
of that Act, the defendant herein has moved to vacate this 
Court’s injunction and dismiss the litigation on the ground 
that, by reason of this section, the defendant herein, Or­
leans Parish School Board; no longer controls the classifi­
cation of public schools as between Negro and white chil­
dren.

It would serve no useful purpose to labor this matter. 
The Supreme Court has ruled that compulsory segregation 
by law is discriminatory and violative of the equal pro­
tection clause of 'the Fourteenth Amendment. Brown v. 
Board of Education of Topeka, 349 U.S. 294. Any legal 
artifice, however clearly contrived, which would circum-

2La. R.S. 17:341 et seq.
sSection 4 of Act 319 of 1956 reads:

“The president of the senate shall appoint two members from 
that body, and the speaker of the house shall appoint two mem­
bers from the house of representatives who shall serve as the 
Special School Classification Committee of the Louisiana 
Legislature, which committee shall have the power and au­
thority to classify any new public schools erected or insti­
tuted, or to re-classify any existing public school, in any city 
covered by the other provisions of this Sub-part, so as to 
designate the same for the exclusive use of children of the 
white race or for the exclusive use of children of the Negro 
race. Any such classification or re-classification shall be sub­
ject to confirmation by the legislature of Louisiana at its next 
regular session, said confirmation to be accomplished by con­
current resolution of the two houses of the legislature. It is 
clearly understood that the legislature of the state of Louisiana 
reserves to itself the sole power to classify or to change the 
classification of such public schools from all white to any other 
classification, or from all Negro to any other classification, and 
the action of the Special School Classification Committee as 
recited hereinabove shall not become final until properly rati­
fied by the legislature.”



30

vent this ruling, and others predicated on it, is unconsti­
tutional on its face.4 Such an artifice is the statute in 
suit.

Motion to dismiss denied.

(Signed) J. SKELLY WRIGHT 
UNITED STATES 
DISTRICT JUDGE

New Orleans, Louisiana 
July 1, 1958

“See Lane v. Wilson, 307 U.S. 268.



MINUTE ENTRY: 
July 2, 1958 
Wright, J :

31

(Number and Title Omitted)

This cause came on to be heard at a former day on mo­
tion of plaintiff for judgment on the pleadings, and was 
argued by counsel for the respective parties and submitted, 
when the Court took time to consider;

Now, on due consideration thereof;

IT IS ORDERED BY THE COURT that the motion of 
plaintiff for judgment on the pleadings be and the same 
is hereby GRANTED.

(Signed) J. S. W.

A. P. Tureaud, Esq., 
Browne & Rault 
July 7, 1958



32

Filed: July 11, 1958

Now into Court, through the undersigned counsel comes 
defendant Orleans Parish School Board, and moves the 
Court for a re-hearing of its order granting judgment on 
the face of the pleadings and from its order dismissing de­
fendant’s Motion to Dismiss.

Respectfully submitted,

(Signed) GERARD A. RAULT 
Gerard A. Rault 
Attorney for Defendant

N O T I C E

Please take notice that the above and foregoing motion 
will be brought for hearing before United States District 
Court, Eastern District of Louisiana, on Wednesday Aug­
ust 6, a't 10 A.M. or as soon thereafter as counsel may 
be heard.

MOTION FOR RE-HEARING

(Number and Title Omitted)

(Signed) GERARD A. RAULT 
Gerard A. Rault 
Attorney for Defendant



33

Filed: September 8, 1958

Now into Court, through undersigned counsel, comes 
Orleans Parish School Board, and

On suggesting to the Court that on February 1, 1958, 
Your Honor entered his opinion holding Act 319 of 1956 
of the Legislature of the State of Louisiana unconstitution­
al apparently on the ground that in said Act, the Legisla­
ture of the State of Louisiana reserved to itself the right, 
in cities where the Act applies, to classify schools exclusive­
ly as white or Negro.

On further suggesting to the Court that on the 4th day 
of August, 1958, the Attorney General of the State of 
Louisiana filed in the Civil District Court for the Parish of 
Orleans a proceeding entitled, “State of Louisiana vs. Or­
leans Parish School Board, et al” , being No. 364 138 of the 
docket of said Court, which proceeding is brought under 
the Declaratory Judgment Act of the State of Louisiana 
and wherein the Attorney General prays that said Civil 
District Court and ultimately the Supreme Court of the 
State of Louisiana, as final interpreter of the laws of the 
State of Louisiana, declare that Act 319 of 1956 “provides 
for the classification of public schools in cities wherein the 
Act applies and gives to the Legislature of the State of 
Louisiana exclusive authority to integrate any school or 
schools in such cities.” All as will appear from a certified

MOTION FOR STAY OF PROCEEDINGS

(Number and Title Omitted)



34

copy of said petition annexed hereto and made a part there­
of; and

On further suggesting to the Court that the interpreta­
tion and clarification of the aforesaid Act by the Supreme 
Court of the State of Louisiana will supply this Court with 
an authoritative basis for determining whether or not the 
provisions of said Act are violative of the Fourteenth 
Amendment to the Constitution of the United States.

Therefore, appearer moves

That all proceedings in this matter be stayed until such 
time as the Supreme Court of the State of Louisiana gives 
its final interpretation of the aforesaid Act in the proceed^ 
ings brought by the Attorney General of the State of 
Louisiana and hereinabove referred to.

Respectfully submitted;

(Signed) GERARD A. RAULT 
Gerard A. Rault 
Attorney for Defendant, 
Orleans Parish School Board



CIVIL DISTRICT COURT FOR THE 
PARISH OF ORLEANS

Filed: August 4, 1958

(Signed) J. C. LAWLER

STATE OF LOUISIANA
No, 364 138 DIVISION ” ” DOCKET 5

STATE OF LOUISIANA 

VS.

ORLEANS PARISH SCHOOL BOARD 
and
OLIVER BUSH, Sr., as father of the minors, EARL BEN­
JAMIN BUSH, GAIL FAYE BUSH, LEONARD BUSH, and 
DONALD BUSH.

CHARLES I. WILSON, tutor of the minor DONALD WIL­
SON.

MRS. EDDIE C. TAYLOR, mother and natural tutrix of 
the minor ELIZABETH TAYLOR.

WILFRED AUBERT, Jr., as father of the minors VERON­
ICA AUBERT, ROSANA AUBERT, VALERIUS AUBERT 
and WILFRED AUBERT III.

MRS. MYRTLE BROOKS, mother and natural tutrix of the 
minor FREDDIE BROOKS.



36

MRS. IDELL O’NEAL, mother and natural tutrix of AN­
ITA MARIE JONES.

MRS. LEONTINE PORTER, tutrix of the minors ODELL 
MARIE BAPTISTE, HERBERT JOSEPH BAPTISTE, WIL­
BERT BAPTISTE, INTHER MARY PORTER.

MRS. GERALDINE KNOX, mother and natural tutrix of 
the minors BYRON W. KNOX and GERMEIN T. KNOX.

MRS. HELEN A. COCO, mother and natural tutrix of the 
minors SHELBY L. COCO, III, KENNETH J. COCO and 
GAYNEL M. COCO.

JAMES ROBERT NICHOLAS as father of the minors AR- 
LETTE NICHOLAS, NOYNA NICHOLAS, HAZEL NICH­
OLAS and JIMMYE NICHOLAS.

MRS. DOROTHY McKAY mother and natural tutrix of 
the minors ROSEMARIA McKAY and CONRAD R. Mc­
KAY.

MRS. MILDRED DAVIS mother and natural tutrix of the 
minors ERIC JUPITER and ROBERT DAVIS.

CLINTON HAYES, as father of the minor GLENDA 
HAYES.

MRS. MAE EVELYN DUHON, mother and natural tutrix 
of the minors MAE EVELYN DUHON and ERNEST J. DU­
HON.



37

MAURICE S. THOMAS as father of the minor MAURICE
S. THOMAS, JR.

HAROLD ROBINSON, tutor of the minors ROSLYN 
BROOKS and JAMES BROOKS.

MRS. VIVIAN S. HARRISON, mother and natural tutrix 
of the minor GERELYN HARRISON.

MRS. ANGELINA H. DAVIS mother and natural tutrix 
of the minor EVANGELINE DAVIS.

MRS. LILLIE BROWN, mother and natural tutrix of the 
minor LILLIAN S. BROWN.

EDWARD C. PRATT as father of the minors MARCEL 
PRATT, SANDRA PRATT AND BENDA PRATT.

MRS. IRIS WINSLOW mother and natural tutrix of the 
minors VERNON WINSLOW, and LESLYE WINSLOW.

A. J. NEWMAN as father of the minors HENRY NEW­
MAN and BEVERLY NEWMAN.

EMILE J. LaBRANCHE, JR. as father of the minors EMILE 
J. LaBRANCHE, III and KAREN ELFREIDA LaBRAN­
CHE.

MRS. EVA MALDONADO mother and natural tutrix of 
the minors LIONEL ALBERT MALDONADO and BERNA­
DETTE MALDONADO.



38

EDWIN CASIMIR as father of the minors ELAINE CAS- 
IMIR and EDWIN CASIMIR, JR.

DALLAS CAMP, JR. as father of the minors THADDEUS 
W. CAMP, BARBARA ANN CAMP and BRENDA LEE 
CAMP.

MRS. LEAH MERCIER mother and natural tutrix of the 
minors ROBERT MERCIER, JANICE MERCIER and 
CLYDE MERCIER.

HERMAN NEALY as father of the minors IRMA T EE 
NEALY, WARREN JAMES NEALY and ALBERTHA 
NEALY.

CARANZA COLEMAN as father of the minors VERNA 
MAE COLEMAN and CARANZA COLEMAN, Jr.

CYPSIAN R. HONORE as father of the minors JOHN 
HONORE, JAMES HONORE, and RUSSELL HONORE.

CASBON CHRISS as father of the minor CASARINE 
CHRISS.

BOLTON BOUTTE as father of the minors RENAUD 
BOUTTE and EDMOND BOUTTE.

ESCO MILLER as father of the minor SAMUEL MILLER.

STEVE WHITTEY as father of the minors MARGUERITE 
WHITTEY, COLLIS WHITTEY, MARSHALL D. WHIT­
TEY, ANNIE PEARL WHITTEY, ALTON EARL WHIT­
TEY and VELMA LEE WHITTEY.



39

MRS, CELESTINE DANIELS as mother and natural tu­
trix of the minors KIRK CHARLES DANIELS, ELD RIDGE 
DANIELS and CHERYL ANN ELDRIDGE DANIELS.

ISIDORE C. WOLF, Sr. as father of the minors ALLEGRA 
WOLF, ISIDORE WOLF, JR. and MIGNON WOLF.

NORMAN JOHN BAILEY as father of the minors NORM­
AN BAILEY, JR., GWENDOLYN LUCY BAILEY, HAZEL 
MARIE BAILEY, GILBERT LAWRENCE BAILEY and 
CHERYL ANN BAILEY.

CALVIN SHOLES as father of the minor CYNTHIA ANN 
SHOLES.

JAMES SHOLES as father of the minors NICHOLAS T. 
SHOLES and DARRYL SHOLES.

FILED: August 4, 1958

(Signed) J. C. Lawler 
Deputy Clerk

(SEAL)



40

TO THE HONORABLE THE JUDGES OF THE CIVIL 
DISTRICT COURT FOR THE PARISH OF ORLEANS, 
STATE OF LOUISIANA:

PETITION FOR DECLARATORY JUDGMENT

I.

This suit is brought by the Attorney General of Lou­
isiana on behalf of the State of Louisiana, under the Dec­
laratory Judgment Act (Revised Statutes 13:4231 et seq.)

II.

Orleans Parish School Board, a public corporation 
created under the laws of the State of Louisiana, is de­
fendant in the action entitled BUSH et al vs. ORLEANS 
PARISH SCHOOL BOARD, being Civil Action 3630 of the 
docket of the United States District Court for the Eastern 
District of Louisiana, New Orleans Division and is made 
a defendant herein because of its interest in the outcome 
of this action.

III.

Oliver Bush, Sr. as father of the minors, Earl Benjamin 
Bush, Gail Faye Bush, Leonard Bush and Donald Bush. 
Charles I. Wilson, tutor of the minor Donald Wilson. 
Mrs. Eddie C. Taylor, mother and natural tutrix of the min­
or Elizabeth Taylor. Wilfred Aubert, Jr. as father of the 
minors Veronica Aubert, Rosana Aubert, Valerius Aubert 
and Wilfred Aubert III. Mrs. Myrtle Brooks, mother and 
natural tutrix of the minor Freddie Brooks. Mrs. Idell



41

O’Neal, mother and natural tutrix of Anita Marie Jones. 
Mrs. Leontine Porter, tutrix of the minors Odelle Marie 
Baptiste, Herbert Joseph Baptiste, Wilbert Baptiste, In- 
ther Mary Porter. Mrs. Geraldine Knox, mother and natu­
ral tutrix of the minors Byron W. Knox and Germein T. 
Knox. Mrs. Helen A. Coco, mother and natural, tutrix of 
the minors Shelby L. Coco, III, Kenneth J. Coeo> and Gay- 
nel M. Coco. James Robert Nicholas as father of the min­
ors Arlette Nicholas, Noyna Nicholas, Hazel Nicholas and 
Jimmye Nicholas, Mrs. Dorothy McKay mother and natu­
ral tutrix of the minors Rosemaria McKay and Conrad 
R. McKay. Mrs, Mildred Davis, mother and natural tu­
trix of the minors Eric Jupiter and Robert Davis, Clinton 
Hayes, as father of the minor Glenda Hayes. Mrs. Mae 
Evelyn Duhon, mother and natural tutrix of the minors 
Mae Evelyn Duhon and Ernest J. Duhon. Maurice S. 
Thomas as father of the minor Maurice S. Thomas, Jr. 
Harold Robinson, tutor of the minors Roslyn Brooks and 
James Brooks. Mrs. Vivian S. Harrison, mother and natu­
ral tutrix of the minor Gerelyn Harrison. Mrs, Angelina 
H. Davis, mother and natural tutrix of the minor Evangeline 
Davis, Mrs, Lillie Brown, mother and natural tutrix of 
the minor Lillian S. Brown. Edward C. Pratt as father of 
the minors Marcel Pratt, Sandra Pratt and Brenda Pratt. 
Mrs. Iris Winslow, mother and natural tutrix of the minors 
Vernon Winslow, and Leslye Winslow. A. J. Newman as 
father of the minors Henry Newman and Beverly New­
man. Emile J. LaBranche, Jr. as father of the minors 
Emile J. LaBranche, III and Karen Elfreida LaBranche. 
Mrs. Eva Maldonado, mother and natural tutrix of the 
minors Lionel Albert Maldonado and Bernadette Mal­
donado. Edwin Casimir as father of the minors Elaine 
Casimir and Edwin Casimir, Jr. Dallas Camp, Jr., as father



42

of the minors Thaddeus W. Camp, Barbara Arm Camp and 
Brenda Lee Camp. Mrs. Leah Merrier mother and natural 
tutrix of the minors Robert Merrier, Janice Merrier and 
Clyde Merrier. Herman Nealy as father of the minors 
Irma Lee Nealy, Warren James Nealy and Albertha Nealy. 
Caranza Coleman as father of the minors Verna Mae 
Coleman and Caranza Coleman, Jr. Cypsian R. Honore 
as father of the minors John Honore, James Honore and 
Russell Honore. Casbon Chriss as father of the minor 
Casarine Chriss. Bolton Boutte as father of the minors 
Renaud Boutte and Edmond Boutte. Esco Miller as; fath­
er of the minor Samuel Miller. Steve Whittey as father of 
the minors Marguerite Whittey, Collis Whittey, Marshall 
D. Whittey, Annie Pearl Whittey, Alton Earl Whittey 
and Velma Lee Whittey. Mrs. Celestine Daniels as moth­
er and natural tutrix of the minors Kirk Charles Daniels, 
Eldridge Daniels and Cheryl Ann Eldridge Daniels. Isi­
dore C. Wolf, Sr. as father of the minors Allegra Wolf, 
Isidore Wolf, Jr., and Mignon Wolf. Norman John Bailey 
as father of the minors Norman Bailey, Jr., Gwendolyn 
Lucy Bailey, Hazel Marie Bailey, Gilbert Lawrence Bailey 
and Cheryll Ann Bailey. Calvin Sholesi as father of the 
minor Cynthia Ann Sholes, and James Sholes as father 
of the minors Nicholas T. Sholes and Darryl Sholes, are 
residents of this Parish and State. The minors above 
named are the plaintiffs in the hereinabove referred to suit 
of BUSH et al vs. ORLEANS PARISH SCHOOL BOARD 
and their parents and guardians are made defendants here­
in because of their interest in the outcome of this suit.



43

IV.

Said Civil Action, BUSH et al vs. ORLEANS PARISH 
SCHOOL BOARD generally is an action wherein plain­
tiffs seek to have the said Board enjoined from operating the 
public schools of New Orleans on a racially segregated 
basis.

V.

In 1956 there was enacted into law a statute (Act 319 of 
1956: Revised Statutes 17:341 et seq.) wherein the legisla­
ture of the State of Louisiana reserved to itself, in cities 
with a population in excess of 300,000 the sole power to 
classify or change the classification of public schools from 
all white to any other classification or from all negro to 
any other classification. It is clear from the language of 
the Statute that it was the intent of the legislature to re­
serve to itself the right to classify such public schools from 
negro to white or white to negro or from white or negro 
to mixed or integrated schools.

VI.

In the above referred to action of BUSH et al vs. OR­
LEANS PARISH SCHOOL BOARD, United States Dis­
trict Judge Honorable J. Skelly Wright, on July 1, 1958, 
entered an opinion wherein he held Act 319 of 1956 uncon­
stitutional, apparently on 'the ground that said Act as in­
terpreted by said Court, provides for the classification 
of schools only for all negro or all white children and is 
therefore violative of the equal protection clause of the 
fourteenth amendment. In holding Act 319 of 1956 un­
constitutional, the said United States District Judge denied



44

a motion of the defendant Orleans Parish School Board 
to dismiss the suit on the ground that said Board was 
an improper party defendant. All as will appear from 
certified copy of said decision annexed hereto and made 
part hereof.

VII.

It is therefore urgent and necessary that this Court and 
ultimately the Supreme Court of the State of Louisiana, as 
final interpreter of the laws of the State of Louisiana, de­
clare that Act 319 of 1956 provides for the classification of 
public schools in cities wherein the act applies and gives 
to the legislature of the State of Louisiana exclusive au­
thority to integrate any school or schools in such cities.

WHEREFORE, petitioner prays that the above named 
defendants be duly cited to appear and answer this pe­
tition, that they be served with a copy of same and that 
after the legal delays and due proceedings had, there be 
judgment declaring that the Act 319 of 1956 provides 
for the classification of public schools in cities wherein 
the Act applies and gives to the legislature of the State of 
Louisiana exclusive authority to integrate any school or 
schools in such cities.

Petitioner further prays for all general and equitable 
relief.

(Signed) JACK P. F. GREMILLION 
Attorney General for the 
State of Louisiana

(SEAL)



45

AFFIDAVIT

BEFORE ME, the undersigned authority, personally came 
and appeared:

JACK P. F. GREMILLION
who, after being duly sworn, did depose and say, that he is 
the Attorney General for the State of Louisiana, petitioner 
herein, and that all of 'the allegations contained in the fore­
going petition are true and correct, to the best of his knowl­
edge and belief.

(Signed) JACK P. F. GREMILLION

Sworn to and subscribed 
before me, Notary, this 
31st day of July, 1958.
(Signed) ESTHER A. KELLY 

NOTARY PUBLIC

Please serve defendants as follows:

ORLEANS PARISH SCHOOL BOARD, 
through its President, Emile A. Wagner, Jr.
300 Carondelet Street 
New Orleans, Louisiana

OLIVER BUSH, Sr., as father of the minors 
Earl Benjamin Bush, Gail Faye Bush, Leonard 
Bush and Donald Bush.

5431 North Villere St



46

CHARLES I. WILSON, tutor of the minor 
Donald Wilson

2117 Flood Street

MRS. EDDIE C. TAYLOR, mother and natural 
tutrix of the minor Elizabeth Taylor

2319 Lizardi St.

WILFRED AUBERT, Jr. as father of the minors 
Veronica Aubert, Rosana Aubert, Valerius 
Aubert and Wilfred Aubert III

1826 Andry St.

MRS. MYRTLE BROOKS, mother and natural tutrix 
of the minor Freddie Brooks

2023 Lamanche Street

MRS. IDELL O’NEAL, mother and natural tutrix 
of Anita Marie Jones.

1209 Lamanche St.

MRS. LEONTINE PORTER, tutrix of the minors 
Odell Marie Baptists, Herbert Joseph Baptists 
Wilbert Baptiste, Inther Mary Porter.

2218 Charbonette St.

MRS. GERALDINE KNOX, mother and natural 
tutrix of the minors Byron W. Knox and 
Germein T. Knox

8922 Birch St.



47

MRS. HELEN A. COCO, mother and natural 
tutrix of the minors1 Shelby L. Coco, III 
Kenneth J. Coco and Gaynel M. Coco.

1828 Eagle St.

JAMES ROBERT NICHOLAS as father of the 
minors Arlette Nicholas, Noyna Nicholas, Hazel 
Nicholas and Jimmye Nicholas.

1818 Deslonde St.

MRS. DOROTHY McKAY mother and natural 
tutrix of the minors Rosemaria McKay and 
Conrad R. McKay.

2716 Miseltoe St.

MRS. MILDRED DAVIS mother and natural 
tutrix of the minors ERIC JUPITER and 
Robert Davis.

1918 Cambronne St.

CLINTON HAYES, as father of the minor 
Glenda Hayes

3618 General Ogden

Mrs. MAE EVELYN DUHON, mother and 
natural tutrix of the minors MAE EVELYN 
DUHON and Ernest J. Duhon

7429 Prytania St.

MAURICE S. THOMAS as father of the minor 
Maurice S. Thomas, Jr.

4335 Holly Grove



48

HAROLD ROBINSON, tutor of the minors 
Roslyn Brooks and James Brooks

9021 Pritchard Place

MRS. VIVIAN S. HARRISON, mother and 
natural tutrix of the minor Gerelyn Harrison

705 North Johnson St.

MRS. ANGELINA H. DAVIS mother and natural 
tutrix of the minor Evangeline Davis

1993 Law Street

MRS. LILLIE BROWN, mother and natural 
tutrix of the minor Lillian S. Brown

422 N. Miro Street

EDWARD C. PRATT as father of the minors 
Marcel Pratt, Sandra Pratt and Brenda Pratt

2515 St. Anthony St.

MRS. IRIS WINSLOW mother and natural 
tutrix of the minors Vernon Winslow and 
Leslye Winslow

1956 Pleasure St.

A. J. NEWMAN as father of the minors 
Henry Newman and Beverly Newman

2714 New Orleans St.

EMILE J. LaBRANCHE, Jr. as father of 
the minors Emile J. LaBranche, III and 
Karen Elfreida LaBranche

3314 Allen St.



49

MRS. EVA MALDONADO mother and natural 
tutrix of the minors Lionel Albert Maldonado 
and Bernadette Maldonado

2018 Barracks St.

EDWIN CASIMIR as father of the minors 
Elaine Casimir and Edwin Casimir, Jr.

1827 N. Miro St.

DALLAS CAMP, Jr. as father of the minors 
THADDEUS W. CAMP, Barbara Ann Camp and 
Brenda Lee Camp

2616 First St.

MRS. LEAH MERCIER mother and natural tutrix 
of the minors Robert Mercier, Janice 
Mercier and Clyde Mercier

1151 South Rocheblave

HERMAN NEALY as father of the minors 
Irma Lee Nealy, Warren James Nealy 
and Albertha Nealy

2107 Fourth St.

CARANZA COLEMAN as father of the minors 
Verna Mae Coleman and Caranza Coleman, Jr.

2715 South Roman

CYPSIAN R. HONORE as father of the minors 
John Honore, James Honore and Russell Honore

1614 Simon Bolivar



50

CASBON CHRISS as father of the minor Casarine 
Chriss

2723 First St.

BOLTON BOUTTE as father of the minors Renaud 
Boutte and Edmond Boutte

2536 South Galvez St.

ESCO MILLER as father of the minor Samuel 
Miller

3832 Melpomene St.

STEVE WHITTEY as father of the minors Marguerite 
Whittey, Collis Whittey, Marshall D. Whittey,
Annie Pearl Whittey, Alton Earl Whittey and 
Velma Lee Whittey

3134 Erato St.

MRS. CELESTINE DANIELS as mother and natural 
tutrix of the minors Kirk Charles Daniels,
Eldridge Daniels and Cheryl Ann Eldridge

1920 Terpsichore St.

ISIDORE C. WOLF, Sr. as father of the minors 
Allegra Wolf, Isidore Wolf, Jr. and Mignon 
Wolf.

5265 Constance St.

NORMAN JOHN BAILEY as father of the minors 
Norman Bailey, Jr., Gwendolyn Lucy Bailey,
Hazel Marie Bailey, Gilbert Lawrence Bailey 
and Cheryll Ann Bailey

2426 Jackson Avenue



51

CALVIN SHOLES as father of the minor Cynthia 
Ann Sholes

2719 First Street

JAMES SHOLES as father of the minors Nicholas
T. Sholes and Darryl Sholes.

2611 First Street

ORDER DENYING MOTION OF DEFENDANT 
FOR REHEARING AND TO STAY.

(Number and Title Omitted)

This matter came on a former day for hearing on 
motion of defendant for rehearing of the Court’s order 
granting judgment on the face of the pleadings and of its 
order denying defendant’s motion to dismiss. On the same 
day, this matter came on for hearing on the defendant’s 
motion for a stay of these proceedings pending the out­
come of the proceeding entitled, “State of Louisiana v. 
Orleans Parish School Board, et al,” No. 364, 138 of the 
docket of the Civil District Court of the Parish of Or­
leans. The Court, having heard the argument of counsel 
and having studied the brief filed in support thereof, is 
now ready to rule.

IT IS ORDERED that the motion of defendant for re­
hearing of the Court’s order granting judgment on the 
face of the pleadings be, and the same is hereby, denied.



52

IT IS FURTHER ORDERED that defendant’s motion for 
rehearing of the Court’s order denying the defendant’s 
motion to dismiss be, and the same is hereby, denied.

IT IS FURTHER ORDERED that the defendant’s motion 
to stay be, and the same is hereby, denied.

(Signed) J.S.W.

PER CURIAM

In the motion to stay, the defendant suggests that Act 
319 of 1956 is constitutional since it may be interpreted as 
allowing the legislature to integrate the public schools. 
It suggests further that the highest court of the state may 
so interpret it when the action filed by the Attorney Gen­
eral in the state court asking for an interpretation of Act 
319 reaches the Louisiana Supreme Court. Hence the 
application for the stay.

However hopeful the defendant may be that the Louisi­
ana Supreme Court will interpret Act 319 so that it may 
be constitutionally applied, the fact remains that Act 319 
is unconstitutional on its face. Bush v. Orleans Parish 
School Board, 163 F. Supp. 701. The only standard pro­
vided in that Act for allocation of pupils in the public 
schools is set out in Section 5 thereof. That section reads:

“Only white teachers shall teach white chil­
dren in public schools; and only Negro teachers 
shall teach Negro children in public schools.”
(La. R.S. 17:345)



53

Since Section 5 requires segregation, Act 319 is uncon­
stitutional. Brown v. Board of Education of Topeka, 349
U.S. 294; Bush v. Orleans Parish School Board, 138 F. 
Supp. 337, aff’d 5 Cir, 242 F. 2d 156.

(Signed) J. S. W.

FINAL DECREE 

(Number and Title Omitted)

Filed: Oct. 23, 1958

A. P. Tureaud
Attorney for Plaintiffs

Browne & Rault
Gerard A. Rault

Attorneys for Defendant

This cause came on for hearing on motion of plaintiffs 
for judgment on the face of the pleadings and the Court, 
having granted the motion, now enters the following final 
decree in this case.

IT IS ORDERED, ADJUDGED AND DECREED that 
the defendant, Orleans Parish School Board, a corporation, 
and its agents, its servants, its employees, their successors 
in office, and those in concert with them who shall receive 
notice of this order, be and they are hereby restrained and 
enjoined from requiring and permitting segregation of the



54

races in any school under their supervision, 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, 349 U.S. 294.

(Signed) J. SKELLY WRIGHT 
UNITED STATES 
DISTRICT JUDGE

New Orleans, Louisiana 
October 21, 1958

NOTICE OF APPEAL 

(Number and Title Omitted)

Filed: Nov. 20, 1958

Notice is hereby given that Orleans Parish School Board, 
defendant above named, hereby appeals to the United 
States Court of Appeals for 'the Fifth Circuit from the 
order and decree denying defendant’s motion to dismiss 
entered herein on July 2, 1958; the order granting motion 
for summary judgment entered July 7, 1958; order deny­
ing motion of defendant for a rehearing denying defend­
ant’s motion to dismiss and denying defendant’s motion



55

for a stay entered October 27, 1958; and from the final 
decree entered herein October 27,1958.

(Signed) GERARD A. RAULT 
Gerard A. Rault 
803 American Bank Bldg.
New Orleans, La.
Attorney for Appellant

CERTIFICATE

The above and foregoing Notice of Appeal has this day 
been served on counsel for appellees by mailing a copy 
hereof to his office at 1821 Orleans Avenue, New Orleans, 
Louisiana.

New Orleans, Louisiana, November 19,1958.

(Signed) GERARD A. RAULT 
GERARD A. RAULT,
Attorney for Appellant

DESIGNATION OF RECORD ON APPEAL TO UNITED 
STATES COURT OF APPEALS FOR FIFTH CIRCUIT

(Number and Title Omitted)

Filed: Jan. 30, 1959

Defendant, Orleans Parish School Board, designates the 
following portions of the record herein to be contained 
in the Record on Appeal:



56

Plaintiffs’ first amended complaint, filed August 16, 
1955.

Answer of defendant to plaintiffs’ first amended com­
plaint, filed March 5, 1958.

Motion of plaintiff for judgment on the pleadings, 
filed March 31, 1958.

Affidavit of James Robert Nicholas, filed April 12, 1958.

Affidavit of Oliver Bush, Sr., filed April 12, 1958.

Motion of defendant, Orleans Parish School Board, to 
dismiss, filed April 16, 1958.

Opinion of the Court denying defendant’s motion to dis­
miss, entered July 2, 1958.

Order granting motion of plaintiffs for judgment on 
the pleadings, entered July 7,1958.

Motion of defendant for a re-hearing, entered July 11, 
1958.

Motion of defendant for stay of proceedings, filed Sep­
tember 8, 1958.

Order denying motion of defendant for re-hearing; de­
fendant’s motion to dismiss and defendant’s motion to stay, 
entered October 27, 1958.

Final decree entered October 27,1958.



57

Notice of appeal entered herein November 18, 1958.

Statement of points relied on upon this appeal filed 
with this designation of the record.

This designation of the record.

All formal parts of affidavit and all duplications to be 
omitted in accordance with Rule 75 of the Federal Rules 
of Federal Procedure and Rule 23 of the Rules of the 
United States Court of Appeals for the Fifth Circuit.

(Signed) GERARD A. RAULT 
GERARD A. RAULT,
803 American Bank Building 
New Orleans, Louisiana 
Attorney for Defendant

I certify that copy of the above and foregoing Designa­
tion of Record, together with copy of Statement of Points 
Relied On filed therewith, have been served on counsel for 
plaintiffs, by delivering copy of same to his office at 1821 
Orleans Street.

(Signed) GERARD A. RAULT 
Gerard A. Rault



58

WHitehall 3-2088 Notary Public

A. P. TUREAUD 
Attorney and Counselor-at-Law 
Claver Bldg., 1821 Orleans Ave. 

New Orleans 16, La.

January 29, 1959.

Clerk of the United States District Court,
New Orleans, Louisiana.
Re: Earl Benjamin Bush, et al. vs. Orleans Parish School 

Board, No. 3630 — Civil Action

I have checked the designation of the record on appeal 
in the above matter and am satisfied therewith. I have noth­
ing to add thereto.

(Signed) A. P. TUREAUD 
A. P. Tureaud

STATEMENT OF POINTS RELIED O'N IN THE APPEAL 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

(Number and Title Omitted)

Filed: Jan. 30, 1959

The District Court erred in failing to grant motion of 
defendant 'to dismiss case based on the ground that in view



59

of the provisions in Act 319, of the Legislature of the 
State of Louisiana for 1956, the Orleans Parish School Board 
was not proper party defendant.

The District Court erred in holding Act 319 of the Legis­
lature of the State of Louisiana for 1956 unconstitutional, 
particularly in view of the fact that said Act contains 
a severability clause, and, therefore, the holding of one sec­
tion of said Act unconstitutional would not invalidate the 
entire Act.

The Court erred in granting plaintiffs’ motion for judg­
ment on the pleadings in 'that the affidavits submitted in 
support of said motion were inadequate.

The Court erred in denying defendant’s motion for a 
stay, pending final interpretation of said Act 319 of 1956 
by the Supreme Court of the State of Louisiana.

Respectfully submitted,

(Signed) GERARD A. RAULT 
GERARD A. RAULT 
803 American Bank Bldg. 
Attorney for Orleans Parish 
School Board



60

CLERK’S CERTIFICATE

I, A. DALLAM O’BRIEN, JR., Clerk of the United 
States District Court for the Eastern District of Louisiana, 
do hereby certify that the foregoing 59 pages contain a 
true and correct copy of the case entitled Earl Benjamin 
Bush, et al. -vs- Orleans Parish School Board, et al. No. 
3630 of the Civil Action Docket of this: court, as made up 
in accordance with the Designation of Contents copied 
herein.

Witness my hand and seal of
said court____ day of February,
1959 at the City of New Orleans, 
La.

A. DALLAM O’BRIEN, JR., 
Clerk

By— --------------------------------—
Deputy Clerk.



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