First Complaint Filed Under Title 6 of Civil Rights Act

    N o. 732

J r the Supreme fljtort »f to United States
October T erm , 1970

S tate of A labama, et al., appellants

v.
U nited States of A merica, et al.

ON APPEAL PROM THE UNITED STATES D ISTRIC T COURT FOR 
THE SOUTHERN D ISTRIC T OF ALABAMA

MOTION TO DISMISS

E R W IN  N. GRISW OLD,
Solicitor General, 

JE R R IS  LEONARD,
Assistant Attorney General, 

M ARGOT S. H U M PH R E Y ,
Attorney,

Department of Justice, 
Washington, D.C. 20330.



J tt the JSnjjrtnte <3[mtrt of the S tates
October Term , 1970

No. 732

S tate of A labama, et al., appellants

v.
U nited S tates of A merica, et al.

ON APPEAL FROM THE UNITED STATES D ISTRIC T COURT FOR 
THE SOUTHERN D ISTRIC T OF ALABAMA

MOTION TO DISMISS

Pursuant to Rule 16 of the Rules of this Court, the 
United States moves for dismissal of this appeal.

O PIN IO N  BELOW

The opinion of the district court (J.S. 14-21) is 
not yet reported.

JU R ISD IC T IO N

The district court’s judgment was entered on June 
26, 1970. Notice of appeal was filed on July 23, 1970. 
The jurisdictional statement was filed on September 
21, 1970. Appellants contend that 28 U.S.C. 1253 con­
fers jurisdiction upon this Court. The United States

(i)
407 - 559— 701



2
submits that the Court does not have jurisdiction of a 
direct appeal pursuant to 28 U.S.C. 1253 because the 
case is not a “ civil action, suit or proceeding required 
by any act of Congress to be heard and determined 
by a district court of three judges.”

QUESTION PR ESE N T E D

Whether the court below correctly held that a three- 
judge district court was not required in this action by 
the state in which no injunction was sought to re­
strain the enforcement, operation, or execution of any 
state or federal statute by restraining the actions of 
any state or federal officer.

STATEM ENT

This action was instituted on March 26, 1970, by 
the State of Alabama and its Attorney General, 
against the United States, certain federal officers, and 
private individuals vdio are plaintiffs in a school 
desegregation suit against the Mobile County Board 
of School Commissioners. The State sought a declar­
atory judgment that Act No. 1 of the Special Ses­
sion of the 1970 Alabama Legislature1 was consti­
tutional and modification of all of the district court’s 
orders “ relating to public schools” to conform to the 
Act’s provisions. As further relief, the plaintiffs

1 The Act (set forth in tire Appendix, infra , pp. 7-8) prohibits 
the compulsory assignment of any student on account of race, 
creed, color, or national origin, or for the purpose of altering 
the student-body makeup at any school with respect to these 
criteria, except by the choice of a parent or guardian. The 
Act also forbids the use of zoning to change the racial balance 
of any school.



3

asked the court to enjoin the Secretary of Health, 
Education and Welfare from “ submitting or insist­
ing upon desegregation plans for public schools of 
Alabama which are not in accord with Act No. 1” 
and to order the Assistant Attorney General for Civil 
Rights of the Department of Justice to request other 
courts to modify their prior desegregation orders to 
conform to Act No. 1.

The case was heard in accordance with the proce­
dures outlined in Jackson v. Choate, 404 P. 2d 910 
(C.A. 5), which resulted in dismissal of the action.2 
Appellants seek review by this Court on direct appeal 
from that decision.

ARG UM EN T

This appeal should be dismissed for want of juris­
diction, since the action was not required by any 
Act of Congress to be adjudicated by a three-judge 
court.

As the court below held, “For [28 U.S.C.] 2281s to 
apply a state statute must be challenged on constitu­
tional grounds in an action in which injunctive relief 
is sought against a state officer who is a party de-

2 A three-judge court was initially convened. After it deter­
mined that the issues presented were not of sufficient substance 
to merit a statutory three-judge court, the case w*as assigned 
to a single district court judge for decision. The single judge 
thereafter dismissed the case and the remaining two judges 
concurred in order to permit simultaneous appeals to this Court 
and to the court of appeals. The court of appeals has stayed 
all action pending the outcome here.

3 28 U.S.C. 2281 provides:
“An interlocutory or permanent injunction restraining the en­

forcement, operation or execution of any State statute by re-



4

fendant” (J.S. p. 20 n. 17) (emphasis in original), 
and “[t]he only state officer involved in the instant 
ease is a party plaintiff seeking to uphold the consti­
tutionality of the state statute involved” (id.) (em­
phasis added). In short, this case, because it seeks 
neither an injunction against state officials nor a dec­
laration that a state statute is unconstitutional, simply 
is not one of the “limited class of cases of special im­
portance” which meets the requirements of Section 
2281/ Phillips v. United States, 312 U.S. 246, 251; see, 
also, Swift & Go. v. Wickham, 382 U.S. I l l ,  124; 
Bailey v. Patterson, 369 U.S. 31, 33.r>

straining the action of any officer of such State in the enforce­
ment or execution of such statute or of an order made by an ad­
ministrative board or commission acting under State statutes, 
shall not be granted by any district court or judge thereof upon 
the ground of the unconstitutionality of such statute unless the 
application therefor is heard and determined by a district court 
of three judges under Section 2284 of this title.”

4 Similarly, 28 U.S.C. 2282 is inapplicable because this was 
not a suit to enjoin the enforcement or operation of any Act of 
Congress.

3 Moreover, a three-judge court was inappropriate for the ad­
ditional reason that the constitutional questions involved have 
been settled by prior decisions of this Court. See Memorandum 
for the United States as Amicus Curiae in Moore v. Cliar- 
lotte-Mecklenburg Bd. of Educ. and Cliarlotte-Mecld&nburg Bd. 
of Educ. v. Swann , Nos. 444 and 498, this Term, a copy of 
which has been furnished to counsel in this case.



5
CONCLUSION

For the foregoing reasons, the Court should grant 
the motion to dismiss.

Respectfully submitted.
E rw in  N . Griswold,

Solicitor General. 
J erris L eonard,
Assistant Attorney General. 
M argot S. H um phrey ,

October 1970.
Attorney.





A P  P  E J  I) I  X

Act No. 1, Special Session of the Alabama Legisla­
ture 1970, approved March 4, 1970, provides as fol­
lows :

Enrolled, AN ACT, TO PREVENT DIS­
CRIMINATION ON ACCOUNT OF RACE, 
COLOR, CREED OR. NATIONAL ORIGIN 
IN CONNECTION WITH THE EDUCA­
TION OF THE CHILDREN OF THE 
STATE OF ALABAMA. BE IT ENACTED 
BY THE LEGISLATURE OF ALABAMA: 
Section 1. No person shall be refused admission 
into or be excluded from any public school in. 
the State of Alabama on account of race, creed, 
color or national origin. Section 2. No student 
shall be assigned or compelled to attend any 
school on account of race, creed, color or na­
tional origin, or for the purpose of achieving 
equality in attendance or increased attendance 
or reduced attendance, at any school, of persons 
of one or more particular races, creeds, colors or 
national origins; and no school district, school 
zone or attendance unit, by whatever name 
known, shall be established, re-organized or 
maintained for any such purpose, provided that 
nothing contained in this section shall prevent the 
assignment of a pupil in the manner requested 
or authorized by Ms parents or guardian, and 
further provided that nothing in this section 
shall be deemed to affect, in any way, the right 
of a religious or denominational educational 
institution to select its pupils exclusively or 
primarily from members of such religion or 
denomination or from giving preference to 
such selection to such members or to make 

(7 )



such selection to its pupils as is calculated to 
promote the religious principle for which it is 
established. Section 3. The provisions of this 
Act are severable. If  any paid of the Act is 
declared invalid or unconstitutional, such 
declaration shall not affect the part which 
remains. Section 4. All laws and parts of laws 
in conflict herewith are hereby repealed. Sec­
tion 5. This Act shall become effective upon 
its passage and approval by the Governor, or 
upon its otherwise becoming a law.

U.S. GOVERNMENT PRINTING O FF IC E : 1970