Brief of Orleans Parish School Board, Defendant-Appellee-Appellant

    IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 19,720 

EARL BENJAMIN BUSH, ET AL., 

PLAINTIFFS~APPELLANTS, 

VS. 

ORLEANS PARISH SCHOOL BOARD, ET AL., 

DEFENDANT-APPELLEE, 

ORLEANS PARISH SCHOOL BOARD, ET AL,, 

DEFENDANT-APPELLANT 

Vs. 

EARL BENJAMIN BUSH, ET AL,, 

PLAINTIFFS-APPELLEES, 

Appeals from the United States District Court 
For the Eastern District of Louisiana, 

New Orleans Division, 

Civil Action No, 3630 

Honorable Frank B, Ellis, Judge. 

FE Cr iv —— 

BRIEF OF ORLEANS PARISH SCHOOL BOARD, 

DEFENDANT-APPELLEE-APPELLANT, 

Samuel I. Rosenberg 
747 National Bank of Commerce Building 
New Orleans 12, Louisiana 

JAckson 2-5128 

Attorney for Orleans Parish School Board 



LIDEX 

PAGE 

STATEMENT OF CASE 1 

SPECIFICATION OF ERROR 2 

LAW AND ARGUMENT 

PART I ly 

PART II 10 

PART III 16 

CONCLUSION 19 

FOOTNOTES Following Page 20 

TABLE OF CASES 

BROWN VS. BOARD OF EDUCATION L,5,6,18 
eT UsBe O53, [1 3. OC,,056, 
98 L. Ed. 873 (1954) and 
39 U.S, 20k, 75'8. Ct, 753, 

99 L, Ed, 1083 (1955), 

CARSON VS. BOARD OF EDUCATION OF 
MCDOWELL CO., ([ Cir. 1955) 227 F, 17 

(2d) 789. 

CARSON VS. WARLICK,(L Cir. 1956) 238 17 
F,(2d) 72l,, certiorari denied 1957, 
353 Ue 8. 910, 77 8. Ct,, 665, 1:1, 
Ed, (2d)66L 

CoorrR ya, AARON, 358 U.8, 1,78 3, y,6,13 
Ct. 1101, (1958), 

COVINGTON VS. EDWARDS, (DeCeM.D N.C, 17 
1958 165 ¥, SPP. 057, Affirmed 
L cir. 1959, 26 F.(2nd)780, 
certiorari denied 1959, 361 U,S, 
840, 80 8, ct, 78, L 1.23.{24)79. 

FARLEY VS. TURNER, 281 F, (24) 131 (4th 16 
Cir, 1900}, 

GIBSON VS. BOARD OF PUBLIC INSTRUCTION 
OF “DADE CO, ,Flhey 212 Fa (2d) (03, 
(5th Cir,1959); and 2,46 F, (2d) 913 
(5th Cir, 1957). 12 

HOLT VS. RALEIGH CITY BOARD OF EDUCATION, 17 
( D.C.E,D,N.C, 19504 16, F, Supp. 853, 
Affirmed lL cir, 1959, 265 F, (2d)95, 
certiorari denied 19,9, 361 U,s., 818, 
80 S.Ct, 59, IL L. Ed. (2463, 



INDEX (CONT, ) 

SCHOOL BOARD OF 
JONES VS./ CITY OF ALGXANDRIA, VA., 

278 F. (2d) 72 (LTh Cir. 1960). 

MANNINGS VS. BOARD OF PUBLIC EDUCATION, 
277 F. (2d) 370,” ~ (5th Cir, 1960). 

MCKISSICK VS. DURHAM CITY BOARD OF 
EDUCATION, D.C,M,D.N.C, 1959,) 176 

NORTHCROSS VS. BOARD OF EDUCATION, 
(6th Cir, March 23, 1962) No. 
11162 (Not yet reported). 

PARHAM VS, DOVE, 271 F, (24) 132 (8th 
Cir. 1059), and 282 F, (2d) 256 
(8th cir, 1960). 

RIPPY VS. BORDERS, 250 F., (24) 690, 
(5th Cir, 1957), See also 275 F, 
(2d) 850 and 285 F, (2d) 13 and 
2h? FP. (2d) 268, 

SCHOOL BOARD OF CITY OF CHAR LOTTESVILIE, 
VA,, VS, ALLEN, 2H0 ¥, (2d) 59 
(ith Cir, 1956). 

SHUTTIESWORTH VS, ALABAMA, (ND AILA-1958) 
162"¥., Supp. 3/2, Air'd, 356 0.8,101, 

STATUTES 

LA, ACT 192 OF 196.0 (R,S.17:101, et seq.) 

PAGE 

13 

12, 13 

17 

11,1k,15 

13 

1h,17, 19 

Ts 10 

2,3,15,16 



INDEX 

PAGE 

STATEMENT OF CASE 1 

SPECIFICATION OF ERROR 2 

LAW AND ARGUMENT 

PART I ly 

PART II 10 

PART ITI 16 

CONCLUSION 19 

FOOTNOTES Following Page 20 

TABLE OF CASES 

BROWN VS. BOARD OF EDUCATION h,5,6,18 
S07 Ue, GB3, II =, OL, ,580, 
98 L, Ed. 873 (195) and 
349 9.8. 20h, 753. Cu. 753, 

99 L. Ed. 1083 (1955). 

CARSON VS. BOARD OF EDUCATION OF 
ICDOWEILL_CO., (I Cir, 1955) 227 F, 17 

(2d) 789. 

CARSON VS. WARLICK,(L Cir. 1956) 238 17 
F.(2d) 72, certiorari denied 1957, 
353 YU. 8, G10, TTS. Cb., 565, 1 1, 
Ed, (2d)66l , 

COOPER VS. AARON, 358 U.S. 1,78 S. l,6,13 
Ct, 1401, (1958), 

COVINGTON VS. EDWARDS, (DeC.M.D.N.C. 17 
1958) 165 F, Supp. 957, Affirmed 
Ly Cir, 1959, ai F, (2nd) 780, 
certiorari denied 1959, 361 U,S, 
810, BO 8. Ct, 78, hh L.Ra.(24)79, 

FARLEY V3. TURNER, 281 F, (24) 131 (4th 16 
Cir, 1900), 

GIBSON VS. BOARD OF PUBLIC INSTRUCTION 
OF DADE CO.,FLA., 272 F. (2d) 703, 
(5th Cir,1959); and 2,6 F, (2d) 913 
(5th Cir. 1957). 12 

HOLT VS. RALEIGH CITY BOARD OF EDUCATION, 17 

Affirmed lL cir, 1959, 265 F, (24)95, 
certiorari denied 19/9, 361 U.S. 818, 
80 s.Ct. 59, Ii L. Ed. (2463. 



INDEX (CONT. ) 

PAGE 

SCHOOL BOARD OF 
JONES VS,/ CITY OF ALEXANDRIA, VA,., 13 

20 ¥, 12d) (2 LTH Cire 1900), 

MANNINGS VS. BOARD OF PUBLIC EDUCATION, 12, 13 
217 Fe 124) 370, “(oth Civ, 1950). 

MCKISSICK VS. DURHAM CITY BOARD OF 
EDUCATION ,( D.C, M,D.N.C, 1959,) 176 17 
Fo. Supp. 3 

NORTHCROSS VS. BOARD OF EDUCATION, 11,1),15 
(6th Cir. March 23, 1962) No. 
111612 (Not yet reported), 

PARHAM VS. DOVE, 271 F., (2d) 132 (8th 13 
Gir. 19507, and 282 7», (24) 256 
(8th cir, 1960). 

RIPPY VS. BORDERS, 250 F, (24) 690, 1,17, 19 
(5th Cir, 1957), See also 275 F, 
(2d) 850 and 285 F, (24) L3 and 
2h? ». (24) 268, 

SCHOOL BOARD OF CITY OF CHAR LOTTESVILIE , 
Vas ‘o. ALIN, fT. Cg 1 
(Ith Cir. 1956). 

SHUTTIESWORTH VS. ALABAMA, (ND ALA-1958) Ts 10 
160 :, Supp. 312s ALT 14.358 0.8.10], 

STATUTES 

LA. ACT L92 OF 196.0 (R.S.17:101, et seq.) 2,3,15,16 



IN THE 

UNITED STATES CCURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 19,720 

EARL BENJAMIN BUSH, ET AL,, 

PLAINTIFFS-APPELLANTS, 

vs. 

ORLEANS PARISH SCHOOL BOARD, ET AL,, 

DEFENDANT-APPELLEE, 

ORLEANS PARISH SCHOOL BOARD, ET AL., 

DEFENDANT-APPELLANT 

VS. 

EARL BENJAMIN BUSH, ET AL., 

PLAINTIFFS-APPELLEES, 

Appeals from the United States District Court 
For the Eastern District of Louisiana, 

New Orleans Division, 

Civil Action No. 3630 

Honorable Frank B, Ellis, Judge. 

BRIEF OF ORLEANS PARISH SCHOOL BOARD, 

DEFENDANT-APPELLEE-APPELLANT, 

STATEMENT OF THE CASE 

This is an appeal from an order entered May 29, 1962 in the court 

below. Plaintiffs and plaintiff-intervenors filed a notice of appeal 

herein, but only plaintiffs have filed a brief. The Orleans Parish 

School Board, defendant below, has appealed from Paragraph 6 of the 

order entered below. For purposes of brevity, Earl Benjamin Bush, et 

al., will be referred to herein as appellant, and the Orleans Parish 

School Board will be referred to herein as appellee. 

Most of the details contained in the first thirteen pages of 

appellant's brief, are substantially correct, and no useful purpose 

would be accomplished in reiterating said detail herein. However, the 

court's attention is deferentially directed to the following: 



- Page 2 - 

On Page 7, Paragraph 2, first sentence of appellant's 

brief, the figures therein quoted include 11 institu- 

tional classes, and actually there are only 117 schools 

in the Orleans Parish School System, of which 64 are 

white, and 53 are Negro. (Exhibit P-9, Page 2). 

On Page 8, Line 2, of appellant's brief, the numerals 

"40" should be "30" (Exhibit P-9, Page 31); or, if 

appellant intended to show the percentage of Negro 

classes having more than 40 pupils, the numerals 

"46.2%" should be "4.7%". 

On Page 6, Paragraph 2, of appellant's brief, reference 

is made to the motion to dismiss filed by appellees. 

The court below indicated that the motion would be 

taken "...with the balance of the matter." (Tr. P.5) 

But no disposition was ever made of this motion. 

The inferences, conclusions, and implications drawn from the facts 

recited in appellant's brief, will be rebutted in that portion of this 

brief which will be devoted to "LAW AND ARGUMENT." 

SPECIFICATION OF ERROR 

The District Court erred in ordering that: 

The Louisiana Pupil Placement Law may be applied 
to any child only where dual school systems based 
on race have been eliminated and assignments are 
made without regard to race." 

The allegation of error is predicated upon the following proposi- 

tions: 

(a) 

(b) 

(c) 

(d) 

The Orleans Parish School Board has made a prompt 
and reasonable start toward full compliance with the 
May 17, 1954 ruling of the United States Supreme Court. 

Time is needed to carry out the ruling of the Supreme 

Court in an effective manner. 

During a period of transition to a racially non- 
discriminatory school system, a Pupil Placement Law 
may be applied to dual school systems. 

Appellants have not exhausted all administrative 
remedies provided for in Louisiana Act 492 of 1960 
(R.S. 17:101, et seq.).



(e) 

(f) 

(g) 

- Page 3 - 

Appellants have not exercised the option given to them 

in early orders of this Court to attend " ..either 

the formerly all white public school nearest their 

home, or the formerly all negro public school nearest 

their home..." 

No pupil, whose application for transfer was denied, 

is before the Court; nor has any such pupil ever 

filed an objection with appellee to his assignment 

to a particular school or requested assignment 

to another school to be designated by the Board, all 

as is provided for in R. S. 17:106. 

The constitutionality of Louisiana Act 492 of 1960 

is not here attacked. 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. 



- Page 4 - 

LAW AND ARGUMENT 

1. 

MAY COURTS PERMIT AN EFFECTIVE GRADUAL ADJUSTMENT TO BE 

BROUGHT ABOUT FROM EXISTING SEGREGATED SCHOOL SYSTEMS TO A 

SYSTEM NOT BASED ON COLOR DISTINCTION? 

1/ 
In the first Brown™ decision, the United States Supreme Court was con- 

fronted with the identical question here being considered. Although the 

Court had previously requested briefs on this question, it realized its 

tremendous importance, and instead of answering the question in its first 

opinion, asked for further argument at a later date, on its questions 4 

2/ 
and 5. After additional briefs and further arguments, the Court, in the 

3/ 
second Brown opinion,” said: 

"...The Courts will require that the defendants make 
a prompt and reasonable start toward full compliance with 

our May 17, 1954 ruling. Once such a start has been made, 
the Courts may find that additional time is necessary to 

carry out the ruling in an effective manner...'' (Underscor- 

ing mine) 

4 
In Cooper vs, Aaron! the Court again indicated that the construc- 

tive use of time was an acceptable and oftentimes desirable conclusion 

for a District Court to reach, and at Page 1404, the Court said: 

"On the other hand, a District Court, after analysis of the 
relevant factors (which, of course, excludes hostility to 

racial desegregation) might conclude that justification 

existed for not requiring the present non-segregated ad- 
mission of all qualified Negro children. In such circum- 

stances, however, the Court should scrutinize the program 

of the school authorities to make sure that they had de- 
veloped arrangements pointed toward the earliest practi- 

cable completion of desegregation, and had taken appro- 
priate steps to put their program into effective opera- 

tion..." (Underscoring mine) 

In the opinion below, the Court calls attention to a resolution of 

appellee adopted on May 14, 1962, which said resolution is set forth in 

full in footnote 22 of said opinion, and on Page 12 thereof the Court 

said: 

"By this the Board supplements good faith with affirmative 
performance. The Board's formal decision to comply with 
the orders of this Court coupled with the order handed 
down this day represents, to the Court's satisfaction, an 
active plan of desegregation under Brown that will ade- 
quately protect plaintiffs’ rights as well as the aspira- 
tions for order sought by all reasonable men." 

Thus, the District Court has found that the Board has made a prompt 

and reasonable start toward full compliance, and under the authority of 

Brown and Cooper vs. Aaron, may find that additional time is necessary to 

carry out the ruling in an effective manner. 



- Page 5 = 

Appellants argued below, and in brief, that appellee has never made 

the start required in Brown. They seemingly lay great emphasis upon the 

fact that appellee did not file a formal plan with the District Court, 

The record in this matter clearly indicates that in May of 1960, the 

statutes of Louisiana, prevented the Board from filing a plan. It was not 

until the decision of the three-judge District Court on August 27, 1960 

that the aforesaid statutes were declared to be null and the effectiveness 

of an injunction issued by the State Court was restrained. Immediately 

thereafter, on August 29, 1960, appellee called upon the District Court, 

and informed it of the fact that since state laws and State Court judgments 

no longer prevented its compliance, it was prepared to move forward toward 

full compliance with the Court's orders. The District Court recognized the 

sincerity and good faith of appellee, and entered an order on August 29, 

1960, which extended to November 14, 1960, the date for beginning the plan 

of desegregation contained in the Court's order of May 16, 1960, stating: 

"...and the Court being impressed with the sincerity 
and good faith of the board, each member of which person- 
ally appeared, with the exception of member, Emile A. 
Wagner, Jr., who was absent from the city at the time..." 

Subsequently, the Board, in public session, adopted the plan under 

which it initiated the beginning of desegregation in this Entity = 

This was not a secret subjective plan, but rather was one that was given 

full publicity in the local, state, national and international press. 

This was a public announcement by the Board of its intention to comply 

with the orders of the Court. The filing of a formal plan with the Court 

was neither in order nor called for. The Court had furnished the Board 

with a plan and the Legislature had furnished the Board with Louisiana 

Act 492 of 1960. As an administrative body, charged with neither judi- 

cial nor legislative functions, the Board, as an agency of the State of 

Louisiana, was, and is, bound by enactments of the Legislature of the 

State of Louisiana, until and unless such statutes are stricken with 

nullity by the Courts. Despite an unprecedented five consecutive extra- 

ordinary sessions of the Louisiana Legislature, the first of which con- 

vened on November 4, 1960, just ten days before the effective date of the 

court's order, the Board never wavered from its statement to the Court 

that it would in good faith, comply with the orders of the District Court. 

As will be seen from Exhibits P-1, P-2, P-3 and P-4, the appellee kept 

faith with the Court, and upon the recommendation of its Superintendent, 



- Page 6 ~- 

made a prompt and reasonable start toward full compliance with the May }7, 

1954 ruling of the United States Supreme Court, and the February 15, 1956 

and May 16, 1960 orders of the District Court. On November 14, 1960, four 

Negro children were admitted into two formerly all-white public schools in 

the Parish of Orleans. This was the first time since the founding of the 

public school system in the Parish of Orleans in 1877 that colored children 

attended classes with white children. 

Appellants seek to belittle this accomplishment, but as modest as it 

was, it constituted such a radical departure from local customs, hardened 

by time, that it stirred deep emotions among many citizens of this commun- 

ity, and led a vocal minority to open demonstration. Appellants have ap- 

parently forgotten that the action of the appellee in making this start 

toward full compliance was not so modest as to dissuade the legislature 

from passing a resolution, addressing out of office four of the five mem- 

bers of the Orleans Parish School Board, nor was it so modest as to dis- 

suade the legislature in five successive extra-ordinary sessions from repeal- 

ing the Act creating the board; from passing two other statutes creating 

new Boards; from addressing the Superintendent out of office, and even from 

dismissing the writer of this brief as the Attorney for the Board. 

It is true that in Cooper vs. Aaron hostility to racial desegregation 

was held not to be a justification for not requiring the present non-segre- 

gated admission of all qualified Negro children, but the appellee at the 

case at bar, is not seeking to suspend the Court's plan for desegregation 

for two and one-half years, as did the Little Rock Board in Cooper vs. 

Aaron. The Board in the instant case is simply urging, and the District 

Court has found, that additional time is necessary to carry out the ruling 

of the Court in an effective manner. The Supreme Court, in Brown, has 

authorized the courts to consider, inter alia, problems related to revi- 

sions of local laws and regulations, which may be necessary in solving the 

problems of desegregation. Appellants complain of the Board's failure to 

carry the burden imposed upon them in Brown. It is respectfully submitted 

that never before in the history of mankind has there been more local laws 

and regulations, which Is had to be revised, than is revealed in the record 

of this case. Literally dozens of statutes, Legislative resolutions and even 

provisions of the Constitution of the State of Louisiana have had to be re- 

vised. But despite these facts, the appellee has continually moved forward 

toward full compliance with the orders of the Court. 



- Page 7 = 

On April 24, 1961, even before the Supreme Court of the United States 

had affirmed all of the actions of the District Court, the appellee ac- 

cepted the recommendation of its Superintendent, setting forth the proced- 

ure for the assignment, transfer and continuance of all pupils in the 

Orleans Parish Public Schools for the school year 1961-1962. %/ The plan 

adopted by the Board again combined the District Court's order of May 16, 

1960, with the provisions of Louisiana Act 492 of 1960, Act 492 is identi- 

cal to the Alabama Pupil Placement Law, which was held to be not unconsti- 

tutional on its face in the Shuttlesworth case 

The plan was applied to both white and colored children, at the first 

grade level, who wished to attend a school, other than the school of his 

attendance district. As the testimony adduced at the hearing indicated, 

by using 90 as the minimum acceptable I.Q. and the 50th percentile of the 

readiness at the school to which transfer was requested, none of the sixty- 

8ix colored children who applied for transfer to a previously all-white 

school qualified. Nevertheless, the Board still cognizant of its legal 

obligation to comply with the order of this Court to desegregate the public 

schools of this Parish with all deliberate speed, lowered the 1.Q. require- 

ment to 80 and the readiness score to 56. The national readiness average 

is 70, the average for all white children at the first grade level in the 

City of New Orleans is 72; and the average readiness of first grade chil- 

dren at some of the schools to which transfers were requested has been in 

the high 80's, for the past three years. The defendants felt, and still 

feel, that a colored child with at least an average I1.Q., and at least an 

average readiness has a better chance of succeeding in a previously all- 

white school, than does a colored child whose 1.Q. and readiness is below 

average. But, in order to proceed with the desegregation process, some 

pupils had to be selected, so the Board approved the transfer of eight 

colored children to previously all-white schools at the commencement of 

the school term in September, 1961. (Exhibit P-10) 

In contrast, with the chaotic conditions encountered in November, 1960, 

the school term in September, 1961 commenced with comparative quiet, The 

work of the members of the School Board and the District Court in educating 

the public and municipal authorities, to the responsibility of all citizens 

to obey constituted authority and to maintain law and order, had begun to 

bear fruit. 



- Page 8 - 

The fact that the Board is making significant progress in moving to- 

ward full compliance with the orders of the Court seems to be recognized 

by everyone except appellants. Even the President of the United States 

has paid public tribute to the accomplishments of appellee. 

In the clippings annexed to appellee's first supplemental memorandum 

filed below, President Kennedy on February 25, 1961 said: 

"Let me here pay tribute to these educators, princi- 
pals, officers of school boards, and public school teachers. 

The constitutional requirement of desegregation has pre- 
sented them with many new responsibilities and hard chal- 

lenges. 

"In New Orleans today...these loyal citizens and edu- 
cators are meeting these responsibilities and challenges 
with quiet intelligence and true courage. The whole coun- 
try is in their debt, for our public school system must be 
preserved and improved. Our very survival as a free na- 

tion depends upon it." 

Again on October 6, 1961, President Kennedy stated that for the third 

time this fall he had the good fortune to call the nation's attention to 

the progress being made in the peaceful and voluntary desegregation of our 

schools in compliance with the mandate of the Constitution. He went on 

to say: 

"In New Orleans last month...there was a new demon- 
stration by the people of that city of their respect for 
law and of their acceptance of the necessity and wisdom of 
orderly compliance with the command of the law. 

"The way in which our citizens are meeting their re- 
sponsibilities under the law in Memphis, New Orleans and 

elsewhere, reflects credit on the United States through- 
out the world." 

As was hereinabove pointed out, appellee adopted another resolution, on 

8/ 
May 14, 1962, setting forth the plan to be followed for the school year 

1962-1963. Although the following facts do not appear in the record of this 

proceeding, they have appeared in the public press and it is submitted that 

Your Honors may take judicial notice thereof. On June 4, 5, and 6, 1962, 

registration of children desiring to enroll in the first grade of the public 

schools of the Parish of Orleans was conducted. All children planning to 

enter the first grade in the fall of 1962 were allowed to register to attend 

either the school assigned for the white elementary district of his or her 

residence, or to register to attend the school assigned for the Negro ele- 

mentary district of his or her residence, at their option. On Monday, 

June 18, 1962, pursuant to Paragraph 4 of the aforesaid resolution of the 

Orleans Parish School Board, the Superintendent of Schools presented to the 



- Page 9 - 

Board the results of the aforesaid registration. These results indicated 

that 8,125 children registered to attend the first grade for the 1962-1963 

school session. It appears that 233 Negro children have registered for 

the first grade in 24 white or formerly all-white elementary schools. 

It is submitted that the above and foregoing clearly indicates that 

the Orleans Parish School Board has made a prompt and reasonable start to- 

ward compliance with the orders of the District Court and the mandate of 

the United States Supreme Court. Once such a start has been made, it was 

within the discretion of the District Court to find that additional time 

was necessary to carry out the ruling in an effective manner. 



- Page 10 - 

11, 

DURING PERIOD OF TRANSITION LOUISIANA ACT 492 

OF 1960 MAY BE USED BY APPELLEE 

At the outset, it should be made perfectly clear to the Court that 

appellee does not take the position that it may permanently maintain a 

dual school system, and apply the procedures set forth in Louisiana Act 492 

of 1960 to the applications of those pupils who wish to transfer from one 

district to another. Too many Circuit Courts of Appeal have already held 

that this violates the Fourteenth Amendment, for such a position to be 

seriously argued to this Court. Appellee does contend, however, that dur- 

ing the period of transition to a racially non-discriminatory system, it 

may use the Louisiana Pupil Placement Law. 

As pointed out, supra, an identical statute was held to be not uncon- 

stitutional on its face, in Shuttlesworth vs. Alabama. Even in the instant 

case, the constitutionality vel non of the statute is not attacked. Appel- 

lants do contend, however, and the District Court held, that the application 

of the statute was unconstitutional, 

One apparent misunderstanding as to how the appellee applied the stat- 

ute must be clarified. On Page 10 of the opinion below, the statement is 

made (on line 4) that the statute was applied solely to Negroes. Actually, 

however, the statute was applied to all children entering the first grade, 

both white and Negro, who wished to attend a school, other than the school 

of their attendance district. 

In 1960, a total of 199 applications were timely received. These were 

divided, as follows: 

Negro children desiring to attend white schools 137 

White children desiring to attend Negro schools 1 

Negro children desiring to attend Negro schools 15 

White children desiring to attend white schools 46 

(Exhibit P-4, Page 1 of the Superintendent's letter to Board, dated 

November 7, 1960). 

After applying the procedures set forth in detail in the Exhibit, the 

Superintendent recommended, and the Board approved, the acceptance of a 

total of 18 applications. The applications which were accepted, fell into 

the following categories: 



- Page 11 - 

White children to white schools 12 

Negro children to Negro schools } 

Negro children to white schools 5 

(See Exhibit P-4, Page 3, of Superintendant's letter to Board, dated 

November 7, 1960). 

Similarly, the record shows that for the school year 1961-1962, 229 

requests for transfer were timely received. These requests were divided 

as follows: 

White children desiring to attend white schools 142 

Negro children desiring to attend Negro schools 21 

Negro children desiring to attend white schools 66 

(Exhibit P-10, Page 1 of Superintendent's letter to Board, dated 

September 6, 1961). 

The identical procedures were applied to all 229 children, on a 

racially non-discriminatory basis, and the Board subsequently approved 101 

applications broken down into the following categories: 

White children to white schools 91 

Negro children to Negro schools 2 

Negro children to white schools 8 

(See Exhibit P-10, Page 3 of Superintendent's letter to Board, dated 

September 6, 1961). 

Furthermore, appellants admitted, upon the hearing of their Motion for 

Further Relief, that they did not question the integrity of the tests ap- 

plied. (Tr. pp.105-106). Additionally, there is uncontroverted testimony 

in the record, showing that identical tests were given to colored children 

and to white children, without any discrimination whatsoever. (Tr. 104, et seq.) 

An examination of pertinent decisions, against the background of the 

racially non-discriminatory application of the Louisiana Placement Law, as 

hereinabove set forth, will reveal that this Court as well as the Courts 

of other Circuits have allowed School Boards to use similar procedures dur- 

ing a period of transition to a racially non-discriminatory system. 

9 
The Northcross case 2f very recently decided, has been relied upon 

as being authority for the proposition that a Pupil Placement Plan can not 

be used in a racially segregated system. An analysis of the opinion in the 

Northcross case, however, indicates that the authorities upon which the 

Court relies, in reaching its conclusion, do not so hold. 



- Page 12 ~- 

10 
The Gibson casess arising out of the Fifth Circuit, and dealing with 

the public schools of Dade County, Florida, was cited and relied upon by the 

Sixth Circuit in the Northcross case. It should be noted, however, that at 

the time of trial in the Gibson cases, the public schools of Dade County 

were completely segregated, both as to teachers and as to pupils. In the 

instant case, six elementary schools have already been desegregated. This 

Court, in the Gibson case, throughout its opinion, stressed the fact that 

a pupil assignment law does not meet the requirements of a plan of desegre- 

gation only where the school system to which it is applied is completely 

segregated, This is a far cry from stating that such a law may only be 

validly applied in an integrated school system. Therein, this Court 

stated, at Page 767: 

"On the first appeal in this case, we said that so 
long as the requirement of racial segregation continues 
throughout the school system it is premature to consider 
the effect of the law providing for the assignment of 
pupils to particular schools. See 246 F. 2d at Pages 914, 
915. Obviously, unless some legally non-segregated schools 
are provided, there can be no constitutional assignment of 

a pupil to a particular school. We do not understand that 
the Fourth Circuit has ruled to the contrary. (Cases cited.) 
The net effect of its rulings, as we understand them, is 

that the desegregation of the public schools may occur simul- 
taneously with and be accomplished by the good faith appli- 

cation of the law providing for the assignment of pupils 
to particular schools, If that understanding is correct, 

then we readily agree. (Underscoring mine.) 

It should further be noted that this Court in the Gibson case, did not 

order the board therein to completely, immediately desegregate all elemen- 

tary schools in Dade County, but rather stated, at Page 767, that: 

"In that connection, the Board may, if it chooses, 
submit for the consideration of the district court a plan 

whereby the plaintiffs and the members of the class repre- 
sented by them are hereafter afforded a reasonable and 
conscious opportunity to apply for admission to any schools 
for which they are eligible without regard to their race or 
color, and to have that choice fairly considered by the en- 
rolling authorities. In the event of the submission and 
approval of such a plan, the district court might properly 
wait a reasonable time for the necessary administrative 
action before finding whether further proceedings are 
necessary," 

11/ 
The Northcross case also cited Mannings vs. Board of Public Education. 

This case.differs from the case at bar in that therein no decree had been 

rendered making certain that the factor of race would not be a consideration 

in the application of the Florida Pupil Placement Law. The Court was im- 

pressed with the fact that the School District had shown no disposition to 

abandon its segregation policy and emphasized the duty of state authorities 



- Page 13 - 

to devote every effort toward initiating desegregation, as provided for in 

Cooper vs. Aspon 32 and to take other steps publicly to disestablish 

13 
segregation in the school system, as set forth in Parham vs. Dove ,~=/ The 

court concluded that the above factors: 

". ..constrains us to hold that the plaintiffs are 
entitled to have such massive testing as is contemplated, 
assuming that the Florida Statute is carried out object- 
ively and in good faith against a background of the decree 
of the trial court, prohibiting the consideration of the 
race of the pupil as a relevant factor..." 15 

The Sixth Circuit also cited, quoted from, and relied upon the case 

15 
of Parham vs. Yove ~~’ This case dealt with the school problem in the 

Dollarway School District No. 2, in Jefferson County, Arkansas, and after 

the two opinions of the Eighth Circuit referred to in the Northcross 

case, the matter was remanded to the District Court for the Eastern 

District of Arkansas, Western Division. At a hearing, in which the school 

board sought and received approval of a supplemental report, the Court 

recognized the proposition herein contended for, namely, that during a 

period of transition, a school district is permitted some freedom of 

selection in designating the Negro students who are to attend formerly 

segregated schools. Therein, the Court said: 

"Giving due weight to the arguments against the plan 
advanced by plaintiffs, the court is persuaded that the 
plan is sufficient on its face to meet initial require- 

ments, and that if actually carried out objectively and 
with a good faith intent to end ultimately the system of 
segregation, which has existed traditionally in the 

Dollarway District, it will constitute an adequate start 
toward the elimination of such segregation and will ini- 
tiate a permissible transition period." 

"An affected school district is permitted during a 
transition period some freedom of selection in designat- 
ing the negro students who are to attend formerly segre- 

gated schools, and in that connection they may employ 
legitimate assignment criteria and may even give limited 
consideration to race. See Dove vs. Parham, supra, 

282 F 2d at Page 262. And the Court feels that the basic 
intelligence or mental readiness and maturity of negro 
students about to enter school at the first grade level 
is a legitimate and objective basis of selection during 
the transition period and may permissably be used by the 
board during such time in accomplishing the program which 
it has initiated." 16/ 

The Sixth Circuit also cited Jones vs. School Board of City of 

17/ 
Alexandria, Virginia.” It is important to note that in the Jones case, 

the Court was reviewing the School Board's rejection of the application of 

14 children to be transferred from colored to white schools. The District 

Court ordered the admission of 9 children and denied further relief to the 



- Page 14 - 

other 5 because of residence or academic deficiencies. The Circuit Court 

affirmed the action of the District Court. In so doing, the Court made it 

quite clear that every plan and every change in plans must have an initial 

application, and even though the Court specifically condemned the mainte- 

nance of a dual system of attendance areas based upon race, the Court said, 

at Page 76: 

"However, it does not follow that ther must be an 
immediate and complete reassignment of all the pupils in 

the public schools of Alexandria." 

While discussing this phase of the instant problem, the Court's atten- 

18 
tion is deferentially directed to Rippy vs. Borders. —’ which dealt with 

the instant problem in Dallas, Texas. Therein this Court reversed the ac- 

tion of the District Court in enjoining the School Board from requiring or 

permitting segregation of the races in any school under their supervision. 

The Court, speaking through Judge Rives, pointed out that it is only racially 

discriminatory segregation in the public schools, which is forbidden by the 

Constitution. The Court quoted approvingly from School Board of City of 

19 
Charlottesville, Virginia vs. Allen: ™ 

"It must be remembered that the decisions of the Supreme 
Court of the United States in Brown vs. Board of Education, 

1954 and 1955, 347 U.S. 483 (74 S. Ct. 686, 98 L. Ed. 873) 
and 349 U,S. 294, (75 S.Ct. 753, 99 L, Ed. 1083) do not compel 
the mixing of the different races in the public schools. No 

general reshuffling of the pupils in any school system has 
been commanded. The order of the Court is simply that no child 
shall be denied admission to a school on the basis of race or 
color. Indeed, just so a child is not through any form of 
compulsion or pressure required to stay in a certain school, 

or denied transfer to another school, because of his race or 

color, the school heads may allow the pupil, whether white or 
negro, to go to the same school as he would have attended in 
the absence of the ruling of the Supreme Court. Consequently, 
compliance with that ruling may well not necessitate such 
extensive changes in the school system as some anticipate." 20/ 

In striking down the District Court's order, this Court said, at Page 694: 

"...The school authorities should be accorded a reason- 
able further opportunity promptly to meet their primary re- 
sponsibility in the premises..." 

Finally, it should be noted that even in the Northcross case, which goes 

further than any other appellate case on this subject, the Court still did 

not order the complete desegregation of the public schools of Memphis, but 

simply concluded by saying, at Page 10 of the slip opinion: 



- Page 15 - 

"The judgment of the District Court is reversed with 

instructions to restrain the defendants from operating a 

biracial school system in Memphis, or in the alternative 

to attempt a plan looking toward the reorganization of 

the schools, in accordance with the Constitution of the 

United States. The District Court should retain juris- 
diction of the case during the period of transition. 
Brown vs. Board of Education, 349 U.S. 294, 301." 

(Underscoring mine) 

It is submitted that, during the period of transition to a racially 

non-discriminatory school system, there is no reason why La. Act 492 of 

1960 can not be used by appellees. To paraphrase this Court's statement 

in the Gibson case, supra, the desegregation of the public schools of the 

Parish of Orleans, can occur simultaneously with, and be accomplished by, 

the good faith application of La. Act 492 of 1960. 



~ Page 16 = 

IXY. 

APPELLANTS CAN NOT ATTACK 
IA. ACT L92 OF 1960, 

In the instant case, no plaintiff or plaintiff. 

intervenor, has attempted to exercise the option given 

to him in the order of this Court dated May 16, 1960 

to attend either the formerly all-white public school 

nearest his home, or the formerly all-negro public school 

nearest his home. Furthermore, no pupil whose application 

for transfer was denied, has filed, in writing, with the 

Orleans Parish School Board, objections to the fallure 

of the Board to approve the application for transfer, or 

has filed objections to his assignment to a particular 

school, Furthermore, none of the said pupils 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 1s provided for in R.S. 

17:106, It is also significant to note that no such 

pupil appears as either plaintiff or plaintiff-intervenor 

in these proceedings, (Tr. pp 109, et seq.; Exhibit 

OPSB-1) 

Tt is submitted that the procedure adopted by the 

Orleans Parish School Board2l / and the Louisiana Pupil 

Placement Act (R.S., 17:101, et seq.) set forth a full 

and complete administrative procedure to be followed by 

any pupil who claims that he has been discriminated 

against, 

In Farley vs. Turner ,22/the Fourth Circuilt said, 

at Page 132: 

"This court has consistently required 
negro pupils desirous of being reassigned 
to schools without regard to race to pur- 

sue established administrative procedures 
before seeking the intervention of a 
federal court, This insistence is predi=- 
cated upon the availability of a reasonably 
expeditious and adequate administrative 
remedy, here, however, the administrative 
procedures fall to meet this standard, courts 
may not deny their constitutional rights to 
persons otherwise entitled to relief..." 



- Page 17 = 

It has been repeatedly held that injunctive 

relief in suits of this type will be granted only after 

the exhaustion of administrative remedies, and that 

rights must be asserted as individuals, not as a class 

or a group 23 

Appellants! argument, that all of te elementary 

schools in Orleans Parish, should be immediately de= 

segregated rather than requiring oo pellants to pursue 

their rights as individuals, is completely and effec= 

tively answered in Covington vs. Rdwnrdy, 20 as follows: 

"We are advertent to the circumstances 
upon which the plaintiffs rest their case, 
namely, that the County Board has taken no 
steps to put an end to the planned segregat ion 
of the pupils in the public schools of the 
county, but, on the contrary, in 1955 and 
subsequent years, resolved that the practice 
of enrollment and assignment of pupils for 
the ensuing year should be similar to those 
in use in the current year, If there were no 
remedy for such inaction the federal court 

might well make use of its injunctive power 
to enjoin the violation of the constitutional: 
rights of the plaintiffs but, as we have seen, 
the State statutes give to the parents of any 
child dissatisfied with the school to which 
he is assigned the right to make application 
for a transfer and the right to be heard on 
the question by the Board. If after the hearing 
and final decision he is not satisfied, and 
can show that he has been discriminated against 
because of his race, he may then apply to the 
federal court for relief, In the pending case, 
however, that course was not taken, although 
it was clearly outlined in our two prior de- 
cisions, and the decision of the District Court 
in dismissing the case was therefore correct," 

This Court has previously held that the Constitution 

does not require desegregation, it merely forbids dis~ 

crimination, 

"The equal proteetion and due process 
clauses of the fourteenth amendment do not 
affirmatively command integration, but they 
do forbid any state action requiring segre=- 
gation on account of their race or color of 
children in the public schools, Avery v, 
Wichita Falls Independent School District, 
5 Cir. 1957, 2ii PF, 2d, 230, 233. Pupils 
may, of course, be separated according to 
their degree of advancement or retardation, 
their ability to learn, on account of their 
health, or for any other legitimate reason, 
but each child 1s entitled to be treated as 
an individual without regard to his race or 
color," 25/ 



- Page 18 = 

Appellee herein took affirmative action to initiate 

the desegregation of the public schools within its juris- 

diction, Not a single child whose application was re jec=- 

ted by the Board availed himself of the administrative 

remedies available to him under Act [,92, Not a single 

child whose gpplication was re jected by the Board, has 

ever filed suit alleging that it has been discriminated 

against, or tha he has been deprived of his constitu=~ 

tional rights, 

At the same time, many of the appellants were 

eligible to spply for transfer in 1960, or in 1961, but 

did not do so, Can these children ignore the admini- 

strative procedures established by the Board, and then 

come into Court in an equity proceeding and allege that 

they have been discriminated against? Can they seek to 

en join appellee from following a state statute, admitted=- 

ly constitutional on its face, by alleging that it was 

administered in an unconstitutional manner, when they 

did not even file an application with the Board, seeking 

admission to a school other than that to which they were 

assigned? To so hold would be tantamount to removing 

appellee's power to administer the public schools of this 

Parish, 

The United States Supreme Court has recognized 

that school boards have the primary responsibility for 

elucidating, assessing and solving varied local school 

problems, 

Full Suplenenbat ton of these con- 

stitutional principles may require solution 

of varied local school problems, School 

authorities have the primary responsibility 

for elucidating, assessing and solving these 

problems ;.. "28 / 

This same proposition was recognized by this Court 

when it said: 



- Page 19 = 

"The authority to administer the public 
schools is invested in the appellants, the 
board and the superintendent, and, of course, 
they are the ones required to make the necessary 
arrangements referred to in the judgment to be 
entered by the District Court, as directed by 
our mandate," 27/ 

In the case at bar, appellee is making good faith 

efforts to solve the varied local school problems en- 

countered in fully implementing the basic constitutional 

principles enunciated by the Court, If the children of 

this Parish may ignore the published procedures of the 

Board, and ignore a state statute, which is consti- 

tutional on its face, appellee, which has the primary 

responsibility in the premises, will never be able to 

effectively achieve, in an orderly manner, the goal 

set for it by the Court; l.e. to desegregate the public 

schools of this Parish with all deliberate speed, 

CONCLUSION 

It is submitted that Paragraph 6 of the order 

rendered by the Court below should be deleted there- 

from, and that said order should be otherwise affirmed, 

It is further submitted that the case should be remanded 

to the District Court, which retains continuing juris- 

diction, 

Respectfully Submitted, 

Samuel I. Rosenberg 
Attorney for Orleans Parish School 
Board, 
7,7 National Bank of Commerce Bldg., 
New Orleans 12, Louisiana 
JA-2-5128, 



- Page 20 = 

CERTIFICATE 

I certify that a copy of the above and fore- 

going Brief on behalf of the Orleans Parish School Board 

has been duly served on counsel for plaintiffs and coun- 

sel for intervenors by depositing a copy of same in the 

United States Mail in a duly stamped envelope addressed 

to each, A, P, Tureaud, Esquire, Ernest N, Morial, Esquire, 

A. M, Trudeau, Lsquire, at their address, 1821 Orleans 

Avenue, New Orleans 16, Louisiana; James M, Nabrit, III, 

Esquire, Jack Greenberg, Esquire, and Constance Baker 

Motley, Esquiress, at their address, 10 Columbus Circle, 

New York 19, New York; Alvin J. Liska, Esquire, City 

Attorney, City Hall, New Orleans 12, Louisiana; and 

Edward E, Pinner, Esquire, 511 Audubon Building, New 

Orleans 16, Louisiana, Attorneys for Amicus Curiae. 

Samuel IT, Rosenberg 

New Orleans, Loulsiana 
June 20, 1962, 



1 / Brown v. Board of Education, 347 U.S. 483, 7L S. 
0CY G0By BD Le 4.73 (1951) 

2_/ Question li is particularly pertinent and was 
phrased as follows: 

",, Assuming it is decided that segregation 
in public schools violates the 1th Amendment: 

(a) Would a decree necessarily follow 
providing that, within the limits set by 
normal geographic school districting, Negro 
children should forthwith be admitted to 
schools of their choice, or 

(b) May this Court, in the exercise of 
its equity powers, permit an effective 
gradual adjustment to be brought about from 
existing segregated systems to a system not 
based on color distinctions," 

3_/ Brown vs, Board of Education, 349 U.S. 294, 75 S. 
Ct, 753, 150, 99 L. Bd. 1083 (1955), 

L / Cooper vs. Aaron, 358 U,S. 1, 78 Ss. Ct, 1401, (1958) 

5 _/ Exhibit p-3, 

6_/ Exhibit P-5, 

7_/ Shuttlesworth vs. Alabama, (ND ALA-1958), 162 F, Supp. 
372s ATT10e 350 Uses. 101, 

8 / See Page 9, Footnote 22 of opinion below, 

9 / Northeross vs. Board of Education, (bth Cir, March 23, 
1962) No, 1U6L.2 (Not yet reported), 

10/ Gibson vs. Board of Public Instruction of Dade Co, 
Fla,, 272 F., (2d) 763, (5th Cir. 1959); and 2,6 F, 
(2d) 913 (5th Cir, 1957). 

11/ 277 Fed. (2d) 370 (5th cir, 1960) 

12/ Supra, Footnote li, 

13/ 2711 r. (24) 132, 135 (8th Cir, 1959), 

1l/ Mannings vs, Board of Public Education, 277 F. (2d) 
370,375 (5th Cir, 1960), 

15/ Parham vs, Dove, 271 F, (2d) 132 (8th Cir. 1959), and 
282 F, (2d) 256 (8th Cir. 1960), 

16/ 19, F. Supp. 112, 11; See also, same case 196 F, Supp. 
oLl (1961), 

17/ Jones vs. School Board of City of Alexandria, Va., 278 
Fe(2a) 72 (Ith Cir. 10607. 

18/ Rippy vs. Borders, 250 F, (2d) 690 (5th Cir, 1957), 
Ses oI 215 F, (2d) 850 and 285 F, (2d) 3 and 247 
FP, (24) 268, 

19/ School Board of City of Charlottesville, Va., Vs. 
XiTen. BIO FF (33) 59 (ih Cirr TOE6). 

20/ Rippy vs. Borders, 250 F, (2d) 690,693 (5th Cir,1957). 

21/ Exhibit P-5, 

22/ 281 F, (2d) 131 (Lth cir, 1960) 



23/ 

2/ 

26/ 

21/ 

FOOTNOTES (CONT, ) 

Carson v. Board of Education of McDowell County, 
Ww Cir, 1955, 227 FF. 2d 709; Carson Ve Warlick, 
LL Cir, 1956, 238 F, 2d, 72l, certiorari denied 
3257, 353 U., S. 920, 77.8, Cha, 665, 1 L. BEd, 24 
oly 3 Govington vs, Edwards, D.C,M,D,N,C,1958, 

165 F, Supp. 957, affirmed lL Cir. 1959, 26 F, 
2nd 780, certiorari denied 1959, 361 U,s. 8.0, 
80 3. Ct. 78, li L.Ed, 2d 79, and McKissick v. 
Durham City Board of Education, D.CeMsDeNs Co 
1959, 176 F. Suppd; Holt v. Raleigh Citv Board 
of Education, D.C.E.D.N.C, 3 16] F, Supp. 
053, affirmed L Cir, 1959, 265 F, 2d 95, certiorari 
denied 19490, 361 U.s, B18, 80 8.06. 59, LL L. Ed, 
24 03, 

Covington vs. Edwards, 26l F, (2a) 780,783 
(Lith Cir, 1959) certiorari denied 1959, 361 U.S, 
B40, 30's, Cu, 78, 4 L, ma, (2a) 79. 

Borders v, Rippy, supra, footnote 18, 2.47 F. 
(20) 268, 271. 

Brown vs. Board of Education, supra, at 756, 

Rippy vs. Borders, 250 F, (2d) 690, 693 (5th Cir, 
1957 py

 —