Motion and Order for Temporary Injunction; Motion for New Trial

    IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

EARL BENJAMIN BUSH, ET AL. 

Ve 

ORLEANS PARISH SCHOOL BOARD, ET AL. 

TO The Honorable Elbert P. Tuttle, Chief Judge, United States 

Court of Appeals for the Fifth Circuit 

MOTION FOR ORDER VACATING STAY OF INJUNCTION AND 

REINSTATING INJUNCTION, OR IN THE ALTERNATIVE, 

FOR AN ORDER MODIFYING THE STAY OF INJUNCTION BY 

IMPOSING TERMS AND CONDITIONS NECESSARY FOR THE 

SECURITY OF PLAINTIFFS' RIGHTS 

Earl Benjamin Bush, et al,, plaintiffs, by their 

attorneys, respectfully move for an order vacating the 
order 

entered in this case by the United States District Court for 

the Eastern District of Louisiana (by Hon. Frank B. Ellis, 

District Judge) on May 1, 1961, which granted a stay of the 

preliminary injunction entered in that Court on April 9, 
1962 

(by Hon. J, Skelley Wright, District Judge), and reinstating 

the preliminary injunction of April 9, 1962. In the alterna- 

tive, plaintiffs move for an order modifying the stay of 

injunction by imposing terms and conditions necessary 
for the 

security of plaintiffs' rights, i.e., that the stay order be 

amended to expressly provide that the defendants must
 take 

all actions necessary in preparation for obedience to the 

injunction of April 9, 1962, at its effective date which is 

the opening of the school term in September 1962, in order that 

the defendants will be able to obey said injunction 
if it is 

in effect at that time, or that the Court impose such other 



terms and conditions as it may deem proper. As grounds for 

said motion, plaintiffs submit the following: 

1. This school segregation case has been before the 

courts through prolonged and complicated litigation. Earlier 

opinions in this case are reported as indicated in footnote 

one of the opinion below dated April 3, 1962 (Exhibit No. 1, 

attached). The present proceedings result from motions filed 

by the plaintiffs and intervenors, Negro school children in 

New Orleans, seeking injunctive relief upon assertions that the 

defendant Orleans Parish School Board has failed to comply with 

prior orders of the trial court with respect to desegregation 

of the public schools. On March 5, 1962, the District Court 

held a hearing at which it received oral testimony and docu- 

mentary evidence submitted by all parties. After considering 

the evidence and briefs filed by the parties, the District 

Court on April 3, 1962, filed an opinion containing detailed 

discussion of the facts and law governing the case. A copy of 

this opinion is appended hereto as Exhibit No. 1, Thereafter, 

on April 9, 1962, this Court entered a preliminary injunction 

in accordance with the opinion of April 3, 1962. This injunc- 

tion modified an earlier injunction entered May 16, 1960. A 

copy of the order of April 9, 1962, is attached hereto as 

Exhibit No. 2. 

2. In summary, the District Court's opinion of April 3, 

1962, found that the defendant school board had failed to file 

a plan of desegregation for the Orleans Parish schoolsas ordered 

by the District Court on July 15, 1959, and did not contemplate 

submitting a desegregation plan: that the school board continues 

to maintain a dual system of segregated schools based on race, 

this being accomplished by dividing the City into separate Negro 

and white school attendance districts; that since September 

1960, the defendant has not complied with the Court's desegrega- 

tion order of May 16, 1960, which provided that all first grade 

A 



children might "at their option" attend either the "formerly 

all white public schools nearest their homes 
or the formerly 

all negro schools nearest their homes": that instead of comply- 

ing with the court's order, the board had pursued a special 

testing and screening program for first grade Negro 
pupils 

seeking to attend schools other than the ones
 to which they 

were assigned under the segregated system; and that under this 

pupil assignment program only four Negro first
 grade children 

out of 134 applicants were allowed to transfer t
o white schools 

nearest their homes during the 1960-61 term, 
and eight Negro 

children of 66 applicants were allowed to transf
er during the 

1961-62 term. The Court concluded that the procedures followe
d 

by the defendant in assigning pupils for the 1960-6) and 1961- 

62 school terms was not in compliance wit
h the order of the 

Court and further said that: 

To assign children to a segregated school system and 

then require them to pass muster under a pupil place- 

ment law is discrimination in its rawest form. 

The court also found that there was substantial 

inequality in the school facilities maintai
ned for white and 

Negro children by the defendants, particularly
 with regard to 

severe overcrowding in the Negro schools, "slatooning" (less 

than full-time sessions) of Negro children, and the use of 

school building areas not planned for clas
sroom use in the Negro 

schools. The Court said that: 

Even under the separate but equal test, these
 

inequalities may not be maintained. It would 

be unconscionable to compel Negroes, 67 years 

after Plegsy v. Ferguson, supra, to continue to 

submit to these conditions. 

3, On or about April 17, 1962, defendant Orleans Parish 

School Board filed a Motion For New Trial asking that the Court
 

set aside the order of April 9, 1962. This motion was originally 

noticed for hearing on May 2, 1962; hearing is now scheduled to 

be held May 8, 1962. A copy of the motion for new trial is 

attached hereto as Exhibit No. 3. After filing the Motion For 

“2% 



New Trial, counsel for the defendant notified plaintiffs’ 

counsel on April 23, 1962, of the Board's intention to appear 

before the Hon, Frank B, Ellis, District Judge, on the after- 

noon of April 24, 1962, to present a Motion For a Stay of the 

order of April 9, 1962°" pending disposition of the Motion For 

New Trial. On April 24, the Motion For a Stay was filed and 

counsel for all parties appeared before the court in chambers. 

A copy of the Motion For a Stay is attached hereto as Exhibit 

No. 4. |The Court took the motion under advisement pending sub- 

mission of memoranda and, on May 1, 1962, entered an order 

granting the stay as requested by the defendant board. The 

stay order provided: 

This cause came on for hearing "in camera" with 

counsel for both parties present on a former day on 

defendants' motion to stay the temporary injunction 

of April 9, 1962, pending disposition of their 

motion for a new trial. 

The court, having considered the briefs and 

argument of counsel is ready to rule. 

It is ordered that the defendants' motion to 

stay the temporary injunction of April 9, 1962, 

pending disposition of a motion for a new trial 

be, and the same is hereby granted, on the condi- 

tion that this stay shall of no way affect the 

order of May 16, 1960. 

Pending the hearing and study of a motion for 

3 new trial on matters which this court as consti- 

tuted is considering for the first time, a stay of 

the temporary injunction is deemed appropriate. 

F.R.C.P. 62(b). This stay in no way reflects the 

ultimate disposition of the motion for a new 

trial. 

4. The grounds upon which the defendant sought and 

obtained a stay of the preliminary injunction were that duri
ng 

the pendency of the motion for a new trial and the antici- 

pated time which might elapse before the motion for 
new trial 

is determined, and the additional time which might elapse if 

the motion is granted before the final decision on the mer
its 

of the action, the defendant would be irreparably 
harmed since 

during this period the defendant must prepare for the reg
is- 

tration, assignment and transfer of students for the Septem
ber 

-d- 



1962 school term. Defendants asserted that they would not 

have sufficient time to properly prepare for the opening of 

school in September 1962, using their prior pupil assignment 

procedures, unless the stay is granted. The defendants' asser- 

tions in this regard are made in their memorandum in support 

of the motion for a stay, relevant portions of which are 

quoted in the margin below. 

The defendants! own asserted justification for the stay 

(which is that unless they take action now, they will be unable 

to properly prepare for the assignment of students for September 

19062) demonstrates that the present stay order is actually a 

determination that the preliminary injunction will not be effec~ 

tive as of September 1962 in accordance with its terms. Thus 

the stay order amounts to a modification of the injunction by 

relieving defendants of their obligation to take present action 

which they insist is necessary to prepare to obey the injunc- 

tion. The stay order postpones defendants' obligation to take 

preparatory steps necessary to carry out the injunction b
eyond 

the time within which such preparation must be completed if 

they are to be meaningful, Defendants have argued to the trial 

court that after the current school term ends and the summer 

vacation period begins they will not have adequate personnel 
to 

carry out the assignment program they desire to undertake. 

Defendants Memorandum stated: : y 
1/ "In the instant case, defendant has filed a motion for a new 

trial, and the hearing of said motion has been set for May 

8, 1962. It is reasonable to assume that the Court might 

take the motion under advisement after the hearing. 
It is 

also reasonable to assume that if a new trial is granted 

herein, there will be an additional lapse of t
ime before the 

new trial is held, and a further lapse of time before a judg~ 

ment is rendered after the new trial. 

“In the interim, defendants must prepare for a new 

school term, which begins in September of 1962.
 The cur- 

rent school term is drawing to a close, and it is imperative 

that defendants make and carry out, without 
further delay, 

plans for the registration, assignment, and transfer of 

students for the September term, 

"It is a matter of common knowledge that the parochial 

school system in the City of New Orleans has 
already conducted 

it s registration for the coming school term, 

- lw 



Accepting this assertion, arauendo, it is apparent that the 

defendants own argument indicates that the stay should be vacated. 

If defendants have any reason to believe that the injunction 

will ultimately be set aside, they may make preparations to 

assign pupils on that assumption, but at the same time should 

also be making preparations to obey the Court's order in the 

event that they are wrong. Defendants should not be permitted 

to sit on their hands and to do nothing so that they can later 

claim unreadiness to obey the injunction if it is ultimately 

upheld. In this connection, it is relevant to note that defend- 

ants have already publicly announced that they would go ahead 

with preparations for following their prior pupil assignment 

practices even before the stay order was granted, 

5. The school board has made no showing of any kind to 

demonstrate irreparable harm to it from being required merely 

to make preparations to obey the court's order pending deci- 

sion of the motion for new trial. Even if the injunction is 

set aside, defendants can have suffered no harm by making such 

preparations, particularly since they have already begun pre- 

paring to follow their prior procedures without reference to 

the stay order. The harm which plaintiffs would suffer if the 

injunction is eventually sustained but its enforcement is 

frustrated because defendants have been permitted to utilize 

the time obtained through the stay to render obedience more 

difficult, is plain and substantial. By this means, plaintiff 

would be deprived of enjoyment of their adjudicated rights even 

if they prevail on the merits. 

(Continued) 

"The record in the case at bar shows that the defendants 

adopted its procedure for the assignment, transfer and con- 

tinuance of all pupils for the school year 1961-1962 on 

April 24, 1961 (See Exhibit P-5). Since April 24, 1962 is 
now upon us, if the judgment previously entered herein is 

not stayed, defendants will not have sufficient time to 

properly prepare for the opening of school in September of 

this year." 

of 



6. A cursory examination of defendants' motion for a 

new trial reveals that on its face it fails to state a basis for 

the relief requested since it is a patent attempt to relitigate 

old matter previously presented to and considered by the trial 

court. There is no claim of newly discovered evidence and the 

assertions that the judgment is contrary to the law and con- 

trary to the facts are arguments which might be urged on appeal 

but are inappropriate basis for seeking new trial. There is 

clearly no basis for a claim that the trial court's opinion of 

April 3, 1962, contained manifest or obvious errors of law or 

fact which justify relitigation of the same issues of fact and 

law before the same court. The Court may weigh the likelihood 

that the motion for a new trial affords a sound basis for the 

relief prayed in determining whether a stay should be granted 

pending that motion. Where, as here, the motion for new trial 

is obviously insufficient, no stay should be granted. 

7. This Court has power to vacate the stay and restore 

the injunction pending disposition of the motion for new trial 

pursuant to Title 28, U.S.C., §1651. Since the stay order 

sought to be vacated is by legal operation and effect a modi 

fication of the injunction previously entered, this is an 

appropriate occasion for the exercise of the power to restore 

the injunction under the All-Writs Act (28 U.S.C. §1651). The 

Court's powers under the All-Writs Act may clearly be exercised 

on a basis consistent with Rule 62(c), Federal Rules of Civil 

Procedure to restore an injunction or to impose conditions upon 

the grant of a stay pending appeal. This is all the more appro- 

priate where the stay order determines the outcome of the litiga- 

tion as certainly as a ruling on the merits, but may be otherwise 

unreviewable. 

Respectfully submitted, 

James M. Nabrit, III 
Jack Greenberg 
Constance Baker Motley 
10 Columbus Circle 
New York 19, New York 

ME ir 



A. P, Tureau 
Ernest Morial 
A. M, Trudeau 
1821 Orleans Avenue 
New Orleans, Louisiana 

Attorneys for Movants 

CERTIFICATE OF SERVICE 

I hereby certify that on this the lst day of May, 1962, 

I served a copy of the foregoing Motion for Order Vacating Stay 

of Injunction and Reinstating Injunction, or in the Alternative, 

for an Order Modifying the Stay of Injunction, Etc., and the 

attached Exhibits, on Samuel I. Rosenberg, Esqg., attorney for 

defendant Orleans Parish School Board, by mailing a copy of same 

addressed to him at 747 National Bank of Commerce Building, 

New Orleans 12, Louisiana, via United States mail, air mail 

special delivery, postage prepaid. 

James M, Nabrit, III 
Attorney for Movants 



Exhibit No, 1 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
NEW ORLEANS DIVISION 

EE EN Raa aa a Sa eh 

EARL BENJAMIN BUSH, et al. 

Plaintiffs 

versus 

ORLEANS PARISH SCHOOL BOARD, et al. 
CIVIL ACTION 

Defendants 

CONNIE REED, a minor, by Gerald Rener, 
her guardian and next friend, et al. 

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Plaintiff-Intervenors 

BA aa a aaa a Aaa nas rs a ALLL LL LL EE x
 

Jack Greenberg 
A, P. Tureaud 
Ernest N, Morial 
James M, Nabrit, III 

Attorneys for Plaintiffs and Plaintiff- 
Intervenors 

Samuel I. Rosenberg 

Attorney for Orleans Parish School Board 

WRIGHT, District Judge: 

Plaintiffs, now supported by 101 additional intervenors, 

petition this court for further relief in this long pending 1liti- 

gations The further relief requested is based on plaintiffs’ 

allegations that the defendant, Orleans Parish School Board, has 

not complied with this court's order of May 16, 1960, with respect 

to desegregation of the public schools of New Orleans, In addition, 

they maintain that the segregated schools operated for negroes by 

the Board cannot pass the separate but equal test of Plessy Vv. 

Ferguson, 163 U.S. 537. 

l1For the prior history of this litigation, see Bush v, 
Orleans Parish School Board, E.D. La,, 138 F., Supp. 
337, affirmed, 5 Cir,, 242 F.2d 156; id., 163 F. Supp. 
701, affirmed, 5 Cir., 268 F.2d 78; id., 187 F. Supp. 
42, affirmed, 365 U.S. 569; id., 188 F, Supp, 916, 

affirmed, 365 U.S. 569; id., 190 F, Supp, 861, affirmed, 

365 U,S. 569; id., 191 F, Supp. 871, affirmed, 367 U.S. 

908; id., 194 F. Supp. 182, affirmed, 368 U.S, ll. 



On May 16, 1960, when the defendant failed to file a 

plan of desegregation? of the Orleans Parish schools as ordered 

by this court, this court filed one. The court's plan simply 

provides that beginning September, 1960, all children entering 

the first grade may attend either the formerly all white public 

schools nearest their homes or the formerly all negro schools 

nearest their homes, at their option, There is a further provision 

for transfers not based on consideration of race.> 

The Orleans Parish School Board maintains a dual system 

of segregated schools based on race? This segregation is accom- 

plished by dividing the city geographically into negro school 

districts and white school districts based upon the residence and 

race of the children attending such schools, On the opening of 

school in September, 1960, instead of complying with the court's 

5 
desegregation order, the Board announced a testing program for 

any first grade child electing a school other than the one to 

which he would be automatically assigned under the Board's segre- 

6 
gated system, This program involved four steps consisting of 

20n February 15, 1956, this court ordered the School Board 

to desegregate the Orleans Parish public schools "with 

all deliberate speed." On July 15, 1959, after no action 

in compliance had been taken, the Board was ordered to 

file a desegregation plan. To date no Board plan has 
been filed and it was admitted at the hearing that sub- 

mission of a plan is not in contemplation. This court 

will, therefore, continue to order desegregation on an 

ad hoc basis until an acceptable plan for integration of 
the Orleans Parish schools is forthcoming. 

3The order reads: 

"IT IS ORDERED that beginning with the opening of school 
in September, 1960, all public schools in the City of 
New Orleans shall be desegregated in accordance with 

the following plan: 

“A. All children entering the first grade may attend 

either the formerly all white public school nearest 
their homes, or the formerly all negro public school 
nearest their homes, at their option. 

"B, Children may be transferred from one school to 

another, provided such transfers are not based on 
consideration of race." 

4Enrollment in the Orleans Parish schools as of October 18, 
1961, is as follows: White 37,845; Negro 55,820, 

SThis testing program was promulgated pursuant to the 
Louisiana Pupil Placement Act. La.R.S5. 17:10] et seq. 
The constitutionality of the Act is not attacked in 
these proceedings. 

©The testing program applied only to the first grade and 
there only to children requesting "transfer," 

-ide 



(1) a review of the "transfer" application form and verification 

of the information contained therein, (2) testing of the petition- 

ing pupils to determine "scholastic aptitude," “intelligence or 

ability" and "adequacy of oupills academic preparation or readi- 

ness for admission to school or curricula," (3) "test interpreta- 

tion and personal evaluation to consider" ten listed eriteria 

relating generally to education, psychology, home environment and 

health, and (4) a "general administrative review and preparation 

of recommendation to Orleans Parish School Board to consider" all 

of the information collected, the "choice and interests" of pupil, 

as well as the possibility or threat of friction or disorder among 

pupils or others, and the possibility of breach of peace or ill 

will or economic retaliation within the community.” The bulletin 

announcing the program further provides that pupils permitted to 

transfer under these procedures and criteria "may be reassigned 

to the school to which they are assigned by virtue of their place 

of residence by order of the Orleans Parish School Board if they 

do not make satisfactory adjustment to the newly assigned situa-~ 

tion,"8 The announcement further requires the separation of 

pupils by sex in each class desegregated under this program, 

An analysis of the test program demonstrates that the 

Board, instead of allcwing children entering the first grade to 

make an election as to the schools they would attend, assigned 

all children to the racially segregated schools in their residen- 

tial areas. Then, after being so assigned, each child wishing to 

"while these broad criteria were upheld as valid elements 

of a pupil placement law, Shuttlesworth v. Birmingham 
Edi ion, N.D. Ala.,, 162 F, Supp. 372, affirmed, 

358 U.S, 101, the application of such criteria to deny 

admittance or transfer on the ground of potential racial 

disturbance would be improper, Cooper v, Aaron, 358 U.S, 

1, 16. See Buchanan v, Warlev, 245 U,S. 60, 81, 

8This portion of the program in effect "repeals" the statu- 
tory criteria since it leaves ultimate pupil assignment 

in the unfettered discretion of the Board, This absence 

of permissible standards for placement sealed the fate 

of Louisiana's first pupil placement law. Bush v, Orleaps 
Parish School Board, E,D. La,, 138 F. Supp. 337, 341, 

affirmed, 5 Cir., 242 F, 2d 156, See Ihompson V. County 

School Board of Arlinaton County, E, D., Va., 159 F, Supp. 

567, affirmed, 4 Cir., 252 F.2d 929. 

- 3a 



exercise his right to elect pursuant to the court's plan of desegre- 

gation was subjected to the testing program. No children other 

than first grade were required to take the tests, Pursuant to 

this testing program, four negro first grade children out of 134 

applicants were allowed to "transfer" to the white schools nearest 

their homes during the school year 1960-61, and eight negro 

children of 66 applying successfully overcame the hurdles of the 

1961-62 testing program. Consequently, 12 of the 13,000-odd negro 

children entering the first grade in the years 1960-61 and 1961-62 

were admitted to and are attending "white" schools, 

The Board maintains that it was justified in applying 

the pupil placement law to the desegregation order of this court 

in an effort to make certain that the children applying to "trans- 

fer" were intellectually and psychologically acceptable in the 

schools they sought to attend. The Board makes no explanation 

for its failure to test all children seeking to enter the first 

grade, or any other grade, in an effort to determine whether or 

not they were intellectually and psychologically acceptable in 

the segregated schools to which they were automatically assigned. 

This failure to test all pupils is the constitutional vice in 

the Board's testing program, However valid a pupil placement act 

may be on its face, it may not be selectively spolieds’ Moreover, 

where a school system is seorsgated, there is no constitutional 

basis whatever for using a pupil placement law, 11 A pupil place- 

ment law may only be validly applied in an integrated school 

The admission of thirteen Negro pupils, after a scholastic 
test, which the white children did not have to take, out of 
thirty-eight who made application for transfer, is not 
desegregation, nor is it the institution of a plan for non- 
racial organization of the Memphis school system,” 
Northcross t a v, B of E et «sy: 5 Civ,., 
F.2d 2/23/62), p. 10, slip opinion, See also 
Mannings Vv. Board of Public Instruction, 5 Cir., 277 F.2d 

370, 374; Jopes v, School Board of City of Alexandria, 
Virginia, 4 Cir., 278F.,2d 72, 77; Dove v, Parham, 8 Cir,, 
282 F.2d 256, 258. ¢ 

10uopviously the maintenance of a dual system of attendance 
areas based on race offends the constitutional rights of 
the plaintiffs and others similarly situated and cannot 
be tolerated, * %* ¥* ¥ In order that there may be no doubt 
about the matter, the enforced maintenance of such a dual 
system is here specifically condemned." Jones Vv lo 

A dria, Virginia, supra, 76. 

11Compare Gibson v,. Board of Public Instruction of Dade 
County, 5 Cir,, 246 F,2d 913, 914; id., 272 F.2d 763, 767, 

ow 



system, and then only where no consideration is based on race. 

To assign children to a segregated school system and then require 

them to pass muster under a pupil placement law is discrimination 

in its rawest form. 

The plaintiffs, together with intervenors, also complain 

of the crowded conditions in the defendant's negro schools, as 

compared to the white, The evidence shows that 5,540 negro elemen=- 

tary school children are on platoon, but no white, [| The evidence 

shows further that the average class size in the negro 
elementary 

schools is 38.3 pupils compared to 28.7 in the white,}3 that 
the 

pupil-teacher ration in the elementary schools is 36,0 to 1 for 

negro, 26.1 to 1 for white, and that negro classes are conducted 

in classrooms converted from stages, custodians® quarters, librarie: 

and teachers! lounge rooms, while similar classroom conditions do 

not exist in the white schools, Even under the separate but equal 

test, these inequalities may not be maintained, It would be 

unconscionable to compel negroes, 67 years after Plessy v, Ferguson. 

14 
supra, to continue to submit to these conditions. 

/ The Board states that in the next two or three years, 

when its present building program is completed, most of the pl
a- 

tooning and the crowded conditions in the negro schools 
will be 

eliminated. But the Board’s projection gives no facts or figures, 

12vThe Pupil Assignment Law might serve some purpose in the 

administration of a school system but it will not serve 

as a plan to convert a biracial system into a non-racial 

one." Northeross, et al, v., Bd, of Educ... et al., supra, 

p. 6, slip opinion, See also id., p. B: "Since that 

decision [Brown v. Board of Education, 347 U.S, 483], 
there cannot be Negro! schools and 'white' schools, 

There can now be only schools, requirements for admission 

to which must be on an equal basis without regard to race.” 

13The maximum class size for elementary schools prescribed 
by 

the Louisiana State Board of Education ig 35 pupils. As of 

October 18, 1961, in the white elementary schools 7.4 per 

cent of the regular classes had over 36 pupils, while in 

the negro elementary schools 75.6 per cent of the classes 

had over 36 pupils. 

" 145ee Sweatt v, Painter, 339 U.S, 629; Wilson v, Board of 
Sunczviecrs, E.D. La,, 92 F. Supp, 986, affirmed, 340 U.S. 
909. 



nor does it make allowance for the increase in the school popula- 

tion to be anticipated, based on the current birth rate, The 

Board also suggests that in two successive elections property 

owners of New Orleans have voted down proposals for tax increases 

to defray the increased cost of operating the public schools in 

New Orleans, and that this failure has caused the crowded condi- 

tions in the negro schools, Whether New Orleans will have adequate 

public schools is, of course, the responsibility of her taxpayers. 

But whatever is provided, inadequate as it is, must at least be 

made available on an equal basis to all school children, 

Generations of negroes have already been denied their 

rights under the separate but equal doctrine of Plessy Vv. Ferquson, 

supra, and, at the present pace in New Orieans, generations of 

negroes yet unborn will suffer a similar fate with respect to their 

rights under Brown unless desegregation and equal protection are 

secured for them by this court, 

The School Board here occupies an unenviable position, 

Its members, elected to serve without pay, have sought conscien- 

tiously, albeit reluctantly, to comply with the law on order of 

this court, Their reward for this service has been economic 

reprisal and personal recrimination from many of their constituents 

who have allowed hate to overcome their better judgment. But the 

plight of the Board cannot affect the rights of school children 

whose skin color is no choice of their own, These children have 

a right to accept the constitutional promise of equality before 

the law, an equality we profess to all the world. 

IT IS ORDERED that the order of this court dated May 16, 

1960, be, and the same is hereby, amended to read as follows: 

(A) Beginning with the opening of school in September, 

1962, all children entering, or presently enrolled in, 

the public elementary schools of New Orleans, grades 1 

through 6, may attend either the formerly all white 

public schools nearest their homes or the formerly all 

negro public schools nearest their homes, at their 

option, 



(B) Children may be transferred from one school to 

another, provided such transfers are not based on con
- 

siderations of race, 

(C) As long as the defendant, Orleans warish School 

Board, operates a dual school system based on racial 

segregation, the Louisiana Pupil Placement Act shall 

not be applied to any pupil, 

Injunction to be drafted by the court, 

s/ J. Skelley Wright 

UNITED STA.ES DISTRICT JUDGE 

New Orleans, Louisiana 

April 3, 1962 



@ canivit No. 2 $ 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
NEW ORLEANS DIVISION 

363 Heb J Pe HIE HI FT FI 3626 36 I 2H 62636 IH 36 HIE 36363 36 I He HH 36 3H He He He 

CONNIE REED, a minor, by Gerald Rener, 
her guardian and next friend, et al., 

Plaintiff-Intervenors 

* 

EARL BENJAMIN BUSH, et al., * 
* 

Plaintiffs * 
* 

versus 2 
%* 

ORLEANS PARISH SCHOOL BOARD, et al., * 
¥ No. 3630-B 

Defendants * 
* CIVIL ACTION 
* 
* 
* 
* 

ve Te Ie FT FHI He A He Ie He He II 363 HI IH J FoI FHI Fe I Ie FoI HH HF HHH HHH Xe 

TEMPORARY INJUNCTION 

This case came on for hearing on plaintiffs' and intervenors' 

motion for further relief and temporary injunction. 

It being the opinion of the court that plaintiffs and intervenors 

are entitled to further relief; 

It is ORDERED that the motion to intervene be, and the same is 

hereby, GRANTED, 

It is further Ordered that the Orleans Parish School Board, its 

agents, representatives, attorneys, and all other persons who are 

acting or may act in concert with them, be, and they are hereby, 

restrained, enjoined and prohibited from assigning pupils in any 

manner inconsistent with the following plan: 

S (A) Beginning with the opening of school in September, 1962, all 

children entering, or presently enrolled in, the public elementary 

schools of New Orleans, grades 1 through 6, may attend either the 

formerly all-white public schools nearest their homes, or ths fomerly 

all negro public schools nearest their homes at their option. 

1/ This means that each child entering or attending grades 1 

through 6 may elect to go to either the white school in his 

or her residence district or the negro school in his or her 

residence district as shown on the defendant's maps of the 

City of New Orleans outlining the school district for each 



(B) Children may be transferred from one school to another 

provided such Coansters are not based on considerations of race. 

(C) As long as the defendant, Orleans Parish School Board, 

operates a dual system based on racial segregation, the Loulsiana 

Pupil Placement Act shall not be applied to any pupil. 

s/ J, Skelley Wright 
UNITED STATES DISTRICT JUDGE 

New Orleans, La, 
April 9, 1962 



® Exhibit No. 3 » 

NIT S_DISTR UR 

FOR TH TERN DISTRI E ISIA 

NEW_ORLEANS_ DIVISION 

EARL BENJAMIN BUSH, ET AL., 
PLAINT IFFS, : 

ORLEANS PARISH SCHOOL BOARD, : CIVIL ACTION 

2 Bey DEFENDANTS, . NO. 3630-B 

CONNIE REED, ET AL., : 
PLAINTIFF -INTERVENORS : 

yi iss testes ieteelea iti, tetera Shrek ates reste sess rab Tieinvens 

MOTION FOR NEW TRIAL 

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Defendant, Orleans Parish School Board, moves the Court to set 

aside the temporary injunction entered herein on the 9th day of April, 

1962, and to grant defendant a new trial, on the grounds that: 

The judgment is contrary to law, in that: 

(a) The Orleans Parish School Board has made a 

prompt and reasonable start toward full com- 

pliance with the May 17, 1954 ruling of the 

United States Supreme Court, and this Court 

may, and should, find that additional time is 

necessary to carry out the ruling in an ef- 

fective manner. 

(b) It is not true that during the period of 

transition to a racially non-discriminatory 

school system, the Louisiana Pupil Placement 

Law (R.S. 17:101) may "only be validly applied 

in an integrated school system." (Opinion, p. 4) 

(¢) No plaintiff, or plaintiff-intervenor, has 

exhausted the administrative remedies provided 

for in Louisiana Act 492 of 1960, (R.S. 17:101, 

et seq.), nor have any of them exercised the | 

option given to them ir earlier orders of this 

Court to attend "...either the formerly all 

white public school nearest their home, or the 



- Page 2 ~- 

formerly all negro public school nearest their 

home..."; and the pleadings do not allege that 

they have so done, 

(d) No pupil, whose application for transfer was 

denied, has filed, in writing, with the Orleans 

Parish School Board objections to the assignment 

of the pupil to a particular school, or has re- 

quested by petition, in writing, assignment or 

transfer to a designated school, or to another 

school to be designated by the Board, all as is 

provided for in R.S. 17:106; and no such pupil 

appears as either plaintiff, or plaintiff-intervenor. 

(e) The constitutionality of Louisiana Act 492 of 1960
 

is not here attacked (See fn. 5 of opinion). Its 

provisions are therefore binding upon defendants, 

plaintiffs, plaintiff-intervenors, and the Court; 

and injunctive relief can be granted only to those 

‘who allege, and prove, that they have exhausted the 

administrative remedies set forth in the statute, 

and the rights which they claim must be asserted 

as individuals, and not as a class or group. 

(£) It is not a proper function of this Court to secure 

desegregation for "generations of negroes yet un
- 

born" (Opinion, p. 6). NOthing in the United States 

Constitution or in Brown v. Topeka gives to a child 

the right to attend a school of his choice solely 

because of his race. The simple requirement is that 

no child shall be denied admission to a school of his 

choice on the basis of race or color. The constitu- 

tion does not require desegregation, it merely forbids 

discrimination. 



- Page 3 ~ 

2. The judgment is contrary to fact, in that, it is based 

largely upon a finding that school facilities for negroes are unequal 

to those for whites. The findings are erroneous in the following 

respects: 

(a) 

(b) 

(c) 

(d) 

While some few "negro classes are conducted in 

classrooms converted from stages, custodians’ 

quarters, libraries and teachers' lounge rooms,” 

similar classroom conditions exist in the white 

schools, (Opinion, p. 5) 

When the present building program of the Orleans 

Parish School Board is completed, all platooning 

in negro schools will be eliminated, even after 

making allowance for the increase in the school 

population to be anticipated, based on the current 

birth race. (Opinion, p, 5) 

A vast preponderance of building funds spent in 

the last ten (10) years have been for negro schools 

(Exhibit OPSB__ 3 ). 

Ten Million ($10,000,000,00) Dollars of Orleans 

Parish School Bonds were delivered on April 4, 1962; 

and this enabled Defendant to begin its current 

construction program. On April 9, 1962 Defendant 

awarded a construction contract for the construction 

of twenty (20) additional classrooms at the Woton 

School and twenty (20) additional classrooms at 

the Dunn School; and in addition, Defendant authorized 

the construction of sixty-four (64) portable classrooms. 

The bulk of the funds available for the current 

construction program of the defendant is already 

earmarked for construction which will eliminate the 

inequalities complained of. 



~- Page 4 ~- 

3. The Court erred in enjoining the Orleans Parish School 

Board, et als., from assigning pupils in any manner inconsiste
nt 

with the plan set forth by the Court, in that: 

(a) School authorities have the primary responsib
ility 

for elucidating, assessing, and solving, varied 

local school problems.. In assuming this responsi- 

bility, the Court has stripped Defendant of its 

administrative powers, and allows each child in 

the system to decide which school he will attend. 

(b) The plan requires the present non-segregated admissio
n 

of all negro children, whether qualified or not, 
on 

the theory that this is a guaranteed constitutional 

right, but the United States Supreme Court has held 

that a District Court might conclude that justifica- 

tion exists for not requiring the present non- 

segregated admission of even qualified negro children. 

(c) Its order seeks to require the desegregation of 

all six elementary grades in one fell swoop, and
 

prohibits the use of the Louisiana Pupil Placement 

Law during the transitional period. No other School 

Board in the deep South has been ordered to take 

such drastic, sweeping, sudden action, and the Court 

of Appeals for the Fifth Circuit reversed a similar 

order issued to the Dallas School Board and ordered 

the District Court to accord school authorities a 

reasonable further opportunity to promptly meet 

their primary responsibility in the premises, 

(d) The plan handed down by the Court is impractical, 

and is virtually impossible to comply with. If 

school children are permitted to go to schools 
of 



- Page 5 - 

their choice, without regard to attendance areas, 

distances, school bus routings and other pertinent 

factors, some of the schools would be crowded be- 

yond their capacity and others would be practically 

vacant. 

WHEREFORE, Defendant prays that the above Motion be granted. 

Samuel I, Rosenberg 
Attorney for the Orleans Parish School 
Board 
747 National Bank of Commerce Building 
New Orleans 12, Louisiana 
JAckson 2-3128. 



> : 4 ® 

Exhibit No. 4 

UNITED _STATES DISTRICT COURT 

FOR_THE EASTERN DISTRICT OF LOUISIANA 

NEW _ORLEANS_DIVISION 

EARL BENJAMIN BUSH, ET AL., 
PLAINTIFFS, 

VS, 

ORLEANS PARISH SCHOOL BOARD, 
ET AL., 

CIVIL ACTION 

DEFENDANTS, 

CONNIE REED, A MINOR BY 
GERALD RENER, HER GUARDIAN 
AND NEXT FRIEND, ET ALS., 

PLAINTIFF~INTERVENORS. ® 
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MOTION FOR STAY OF EXECUTION PENDING DISPOSITION OF MOTION FOR 
AL p

4
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Defendant, Orleans Parish School Board, moves the Court 

for an order staying execution of, or any proceedings to enforce, 

the judgment entered in favor of plaintiffs and plaintiff-intervenors 

herein, on April 9, 1962, pending disposition of defendants' motion 

for a new trial, on the ground that irreparable injury might other- 

wise result to defendant. 

Samuel! I. Rosenlkerg 
Attorney for Orleans Parish School 
Board, 
747 National Bank of Commerce Building 
New Orleans 12, Louisiana 
JAckson 2-5128. 

[Defendants' Proposed Order Cmitted]