Brewer v. Hoxie School District No. 46 of Lawrence County, Arkansas Brief for the United States as Amicus Curiae
Public Court Documents
August 1, 1956
Cite this item
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Brief Collection, LDF Court Filings. Brewer v. Hoxie School District No. 46 of Lawrence County, Arkansas Brief for the United States as Amicus Curiae, 1956. ed293269-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5c3758d6-feac-4f95-996b-ef8580cf51bf/brewer-v-hoxie-school-district-no-46-of-lawrence-county-arkansas-brief-for-the-united-states-as-amicus-curiae. Accessed May 15, 2025.
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No. 15510 (Civil)
In the United States Court of Appeals
for the Eighth Circuit
H ebbert B r ew e r , et a l ., ap p e lla n ts
v.
H oxie S chool D istrict No. 46 op L a w r e n c e
C o u n t y , A r k a n sa s , et a l ., appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF ARKANSAS, JONESBORO DIVISION
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
w a r r e n o l n e y I I I ,
Assistant Attorney General,
AR TH U R B. CALDW ELL,
HUBERT H. MARGOLIES,
H EN RY PUTZEL, Jr.,
Attorneys,
Department of Justice.
I N D E X
Interest of the United States-------------- ----------------------------------------------
Statement of the case--------------------------------------- ---------------------------------
Statement of points to be argued and authorities relied on--------- -------
Argument___________________________________________________________
I. The court below had jurisdiction over plaintiffs’ cause of
action____________________________________________________
1. Federal jurisdiction in the ease at bar is based upon 28
U. S. C., Section 1331 and 28 U. S. G , Section 1343.
2. Recourse to the federal courts for vindication of
federal rights will not be denied merely because a
cause of action might likewise exist in the state
courts____________________________________________
II. Plaintiffs are under a Constitutional duty to support and
obey the Fourteenth Amendment. They have an inherent
federal right to be free from direct interference with the
performance of that duty-------------------------------------------------
III. The statutory provision for damages for conspiring to prevent
state officers from securing equal protection of the laws,
and other statutory provisions, provide a standard to an
equity court in restraining such conduct---------------------------
IV. The identity of interest between the school board and
the school children is sufficiently close so as to permit the
school board to assert the rights of the school children
under the Fourteenth Amendment in a federal equitable
proceeding to restrain the illegal conduct. Private action
against a school board to prevent it from affording equal
. protection of the laws to the school children would result
in a deprivation of the school children’s rights under the
Fourteenth Amendment---------------- ----------------------------------
V. The injunction does not impose any restrictions upon lawful
free speech and assembly--------------------------------------------------
VI. Where the public interest is concerned courts of equity will go
farther in granting relief than might otherwise be the case_
Conclusion---------- -------------------------------------------------------------------------------
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CITATIONS
Cases:
American Communications Association v. Douds, 339 U. S. 382__ 9,
65, 66, 68
American Federation, of Labor v. Watson, 327 U. S. 582--------------- 6, 18
Anderson v. United States, 269 Fed. 65 (C. A. 9), cert. den. 255
U. S. 576_______________________________________ — - _________ 32
Apodaca v. United States, 188 F. 2d 932 (C. A. 10)--------------------- 6/.
( i )394702— 56-------1
II
Arizona, The v. Anelick, 298 U. S. 110__________________________ 8, 50
Bailey v. Drexel Furniture Co., 259 U. S. 20_____________________ 63
Barrows v. Jackson, 346 IT. S. 249______________________________ 9, 55
Baskin v. Brown, 174 F. 2d 391 (C. A. 4 )_______________________ 59
Beauharnais v. Illinois, 343 U. S. 250___________________________ 10, 72
Bell v. Hood, 327 U. S. 678___________________ 6, 8, 14, 17, 18, 19, 21, 49
Board of Education v. Barnette, 319 IT. S. 624___________________ 10, 72
Brown v. Board of Education, 347 U. S. 483_____________________ 2,
3, 5, 7, 25, 26, 27, 45, 51, 73, 74
Brown v. Board of Education, 349 IT. S. 294_____________________ 2,
3, 5, 7, 8, 26, 27, 45, 49, 51, 73, 74
Brown v. United States, 204 F. 2d 247 (C. A. 6 )_________________ 58
Buchanan v. Warley, 245 U. S. 60_______________________________ 9, 56
Cantwell v. Connecticut, 310 IT. S. 296___________________________ 9, 69
Carroll v. Somervell, 116 F. 2d 918 (C. A. 2 )____________________ 10
Chandler v. United States, 171 F. 2d 921 (C. A. 1) cert. den. 336
IT. S. 918, rehear, den. 336 IT. S. 947_________________________ 9, 66
Chaplinsky v. New Hampshire, 315 IT. S. 568___________________ 9, 62, 68
Chapman v. King, 154 F. 2d 460 (C. A. 5), cert. den. 327 IT. S.
800___________________________________________________________ 59
Child Labor Tax Case (Bailey v. Drexel Furniture Co.), 259
IT. S. 20______________________________________________________ 63
City of Mitchell v. Dakota Telephone Co., 246 IT. S. 396____________ 7, 19
City Railway Co. v. Citizens’ Railroad Co., 166 U. S. 557___________ 7, 19
Civil Rights Cases, 109 IT. S. 3__ _______________________________ 53
Collins v. Hardyman, 341 IT. S. 651___________________________ 8, 44, 45
Columbia Broadcasting System v. United States, 316 IT. S. 407_____ 9, 56
Covington v. Montgomery County School Board, 139 F. Supp. 161
(M. D. D. C .)________________________________________________ 73
Cromwell v. Hillsborough TP., 149 F. 2d 617 (C. A. 3), aff’d. 326
IT. S. 620------------------------------------------------------------------------------ 6, 19, 20
Culp v. United States, 131 F. 2d 93 (C. A. 8)____________________ 58
Dennis v. United States, 341 IT. S. 494___________________________ 10, 71
Donaldson v. Read Magazine, 333 U. S. 178_____________________ 9, 66
Douglas v. Jeanette, 319 IT. S. 157_______________________________ 12
Dyer v. Abe, 138 Fed. Supp. 220 (D. C. Hawaii)______________ 7, 25, 67
Edwards v. California, 314 IT. S. 160____________________________ 75
Elmore v. Rice, 72 Fed. Supp. 516, aff’d. 165 F. 2d, 387 (C. A. 4)
cert. den. 333 U. S. 875_______________________________________ 59
Ex parte Riggins, 134 Fed. 404 (C. C. N. D. Aia.)____________7, 35, 36
Ex parte Siebold, 100 IT. S. 371__________________________________ 8, 38
Ex parte Yarbrough, 110 U. S. 651_____________________ 7, 30, 31, 32, 54
Fair, The v. Kohler Die & Specialty Co., 228 IT. S. 22___________ 6, 18
Feiner v. New York, 340 H. S. 315______________________________ 9, 71
Fitzgerald v. Pan American World Airways, 229 F. 2d 499 (C. A.
2, 1956)-------------------------------------------------------------------------------- 8, 46, 52
Foss v. United States, 266 Fed. 881 (C. A. 9)___________________ 32
Georgia v. Tennessee Copper Co., 206 IT. S. 230:__________________ 10, 73
Georgia, State of, v. Wenger, 187 F. 2d 285 (C. A. 7), eert. den.
342 U. S. 822, rehear, den., 342 U. S. 874.
Cases— Continued Page
20
m
Giboney v. Empire Storage & Ice Co., 336 U. S. 490_____________ 9, 67
Gooch v. Oregon Short Line 11. Co., 258 U. S. 22_________________ 8, 50
Grovey v. Townsend, 295 XJ. S. 45_______________________________ 59
Gully v. First National Bank, 299 U. S. 109_____________________ 6, 12
Hague v. C. I. O., 307 XJ. S. 496__________________________._______ ]2, 67
Hawkins v. State, 293 Fed. 586 (C. A. 5)_________________________ 32
Hays v. Seattle, 251 XJ. S. 233____________________________________ 6, 19
Hecht Co. v. Bowles, 321 XJ. S. 321_______________________________ 60
Hodges v. United States, 203 XJ. S. 1______________________________ 36
Hum v. Oursler, 289 XJ. S. 238________________________________ 6, 19) 20
In re Coy, 127 XJ. S. 731__________________________________________ 8, 38
In re Neagle, 135 U. S. 1______________________________________ 7, 31, 35
In re Quarles, 158 XJ. S. 532_____________________________________ 32
Johnson v. United States, 163 Fed. 30 (C, A. 1)___________________ 8, 50
Joint Anti-Fascist Refugee Committee v. McGrath, 341 XJ. S. 123___ 65
Keifer & Keifer v. R. F. C. 306 XJ. S. 381 ________________________ 8, 50
Koehler v. United States, 189 F. 2d 711 (C. A. 5), cert. den. 342
XJ. S. 852-------------------------------------------------------------'____ '_________57, 67
Levin v. United States, 128 Fed. 826 (C. A. 8 )___________________ 8, 39
Logan v. United States, 144 XJ. S. 263______________________ 7, 21, 31 33
Lynch v. United States, 189 F. 2d 476 (C. A. 5), cert. den. 342
XT. S. 831________________________ 1________________________ 67
Martin v. Hunter’s Lessee, 1 Wheat. 304________________________ 7, 30
Mendez v. Westminster School District, 64 Fed. Supp. 544
(D. C. S. D. Cal.), aff’d. 161 F. 2d 774 (C. A. 9)_____________ 74
McCabe v. Atchison T. and S. F. R. R., 235 XJ. S. 151___________ 55
McDonald v. United States, 9 F. 2d 506 (C. A. 8 )_______________ 32
McGoon v. Northern Pacific Railway Co., 204 Fed. 998
(D. C. N. D .)________________ ______________________________ 6, 18
McKinney et al v. Blankenship, et al,— Tex.— 282 S. W. 2d 691__ 27
McKnett v. St. Louis & S. F. Ry., 292 XJ. S. 230________________ 8, 40
Montana-Dakota Utilities Co. v. Northwestern Public Service Co.,
341 U. S. 246_________________________________________________ 6, 17
Moore v. Illinois, 55 XJ. S. 13____________ ____________ ___________ 22
Mosher v. Phoenix, 287 XJ. 8. 29________________________________ 6, 18
Motes v. United States, 178 XI. S. 458___________________________ 32
Nicholson v. United States, 79 F. 2d 387 (C. A. 8 )___, __________ 32
Osborn v. The Bank of the United States, 9 Wheat. 738—, _______ 7, 34
Pennoyer v„ McConnaughy, 140 XJ. S. 1________________ _________ 7, 19
Philadelphia Co. v. Stimson, 223 XJ. S. 605______________________ 6, 19
Pierce v. Society of Sisters, 268 XJ. S. 510— _____________________ 9, 55
Powe\ v. United States, 109 F. 2d 147 (C. A. 5), cert. den. 309
XJ. S. 679. — __________________________________________________ 32
Prigg v. Pennsylvania, 16 Pet. (41 XJ. S.) 536___________________ 8, 40
Reitmeister v. Reitmeister, 162 F. 2d 691 (C. A. 2)_____________8, 47, 52
Riggins v. United States, 199 XJ. S. 547__________________________ 36
Robertson v. Baldwin, 165 U. S. 275__ __________________________ 9( 66
Romero v. Weakley, 226 F. 2d 399 (C. A. 9 )_____________________ 7,24
Cases—Continued Page
IV
Romero v. Weakley, 131 F. Supp. 818, revs’d, 226 F. 2d 399
(C. A. 9 )______________________________________________________ 23
Roosevelt Field v. Town of North Hempstead, 84. Fed. Supp. 456
(D. C. N. Y .)_________________________________________________ 8,48
Schenck v. United States, 249 U. S. 47_________________________ 9, 65, 66
Screws v. United States, 325 U. S. 91_________________________ 20, 58, 66
Second Employers’ Liability Cases, 223 U. S. 1___________________ 8, 40'
Shelley v. Kraemer, 334 U. S. 1__________________________________ 42, 53
Siler v. Louisville & N. R., 213 XJ. S. 175_____________________ 6, 19, 20’
Slifka v. Johnson, 161 F. 2d 467 (C. A. 2 )______________________ 8, 50’
Smith v. Allwright, 321 U. S. 649________________________________ 59
South & Central American Commercial Co. v. Panama R. Co., 237
N. Y. 287, 142 N. E. 666_____________________________________ 8, 50.
Spielman Motor Co. v. Dodge, 295 U. S. 89______________________ 7, 19’
State of Georgia v. Wenger, 187 F. 2d 285 (C. A. 7), eert. den. 342
U. S. 822, rehear, den. 342 U. S. 874__________________________ 20’
Swafford v. Templeton, 185 U. S. 487___________________________ 10:
Sweatt v. Painter, 339 U. S. 629_________________________________ 55.
Tennessee v. Davis, 100 U. S. 257________________________________ 7, 34
Terminiello v. Chicago, 337 IJ. S. 1_______________________________ 70
Terry v. Adams, 345 U. S. 461__________________________________ 9, 59’
Testa v. Katt, 330 U. S. 386_____________________________________ 8, 391
Truax v. Raich, 239 U. S. 33____________________________________ 9, 56;
Ullman v. Lnited States, 350 U. S. 422__________________________ 33
United Public Workers v. Mitchell, 330 U. S. 75_________________ 9, 66
United Stales v. Classic, 313 U. S. 299___________________________ 32'
United States v. Cruikshank, Case No. 14,897, 25. Fed. Cas. 707
(C. C. D. La. 1874), aff’d. 92 U. S. 542_______________________ 34
United States v. Cruikshank, 92 U. S. 542______________ 7, 21, 32, 34, 53.
United States v. Hutcheson, 312 U. S. 219_____________________ 8, 50; 51
United States v. Lancaster, 44 Fed. 885 (C. C. W. D. Ga.)_______ 32'
United States v. Lancaster, 44 Fed. 896 (C. C. W. D. G a.)______ 32:
United States v. Moore, 129 Fed. 630 (C. C. N. D. A la.)________ 32
United States v. Mosley, 238 U. S. 383___________________________ 32
United States v. Patrick, 54 Fed. 338 (C. C. M. D. Tenn.)______ 32
United States v. Powell, 212 U. S. 564___________________________ 36
United States v. Powell, 151 Fed. 648 (C. C. N. D. Ala.) aff’d.
212 U. S. 564___________________________________________ 7, 35, 36, 3T
United States v. Rumely, 345 U. S. 41___________________________ 63.
United States v. Saylor, 322 U. S. 385___________________________ 32
United States v. Trierweiler, 52 Fed. Supp. 4 (E. D. 111.)________ 58.
United States v. Waddell, 112 U. S. 76___________________________ 7 ,2 2
Van Beeck v. Sabine Towing Co., 300 U. S. 342_________________ 8, 50
Virginian Railway Co. v. System Federation No. Ifi, 300 XJ. S. 515- 10, 73:
Warner v. Goltra, 293 U. S. 155_________________________________ 8, 50-
Westminster School District v. Mendez, 161 F. 2d 774 (C. A. 9)__ 74
Wiley v. Sinkler, 179 U. S. 58— 1_______ ______________________ 10:
Williams v. United States, 179 F. 2d 656 (C. A. 5) aff’d. 341
' U. S. 97____________________________________________________ _ 21
Williams v. United States, 341 U. S. 97____________________ 9, 21, 58, 66:
Cases— Continued Page
V
“United States Constitution:
Article VI: Pag*
Clause 2________________________________________ 7 ,11,28,39
Clause 3__________________________________ 7,11,28
'Statutes and rules:
United States Code:
Title 4:
See. 101________________________________________________ 28
Title 18:
Sec. 241_______________________ ; _______________________ 33
Sec. 242______________________________ ______ 51 ,57,59 ,66,67
Sec. 371________________________________________________ 58
Title 28:
Sec. 1331_______________________________________________ 6, 10
Sec. 1343 _____________________________________________ 6,12
Sec. 1651_______________________________________________ 48
Title 42:
Sec. 1971___________________ __________ ________________ 59
Sec. 1983. J______________________ _____ - ________ 51,52,59,67
Sec. 1985 (3)______________ : __________________ 8 ,43 ,44 ,51 ,59
Sec. 1988_______________________________________________ 49
Arkansas Stats., 1947, Sec. 80-505______________________________ 28
Federal Rules Civil Proc.:
Rule 23 (a)_________________________________________________ 57
Rule 5U (a )_________________________________________________ 4
‘Other authorities:
Carr, Robert K., "Security and Freedom,” 42 Yale Review 496
(1953)_________________________________________________________ 69
“ Collins v. Hardyman: More on the Civil Rights Act,” 46
Illinois Law Review 931 (1952)_______________________________ 23
Edwards, The Courts and the Public Schools (1955)_____________ 73
Emerson and Haber, “ Political and Civil Rights in the United
States” (1952)________________________________________________ 67
"Federal Jurisdiction in Suits for Damages Under Statutes Not
Affording Such Remedy,” 48 Columbia Law Review 1090
(1948)--------------------------------------------------------------------------------------- 19
"Federal Prosecution of State Law Enforcement Officers Under
the Civil Rights A ct,” 55 Yale Law Journal 576 (1946)________ 31
“ Freedom of Speech and Assembly: the Problem of the Hostile
Audience,” 49 Columbia Law Review 1118 (1949)_____________ 70
14 Georgia Bar Journal 98 (1951)_________________________________ 20
Hale, Robert L., Freedom Through Law (1952)__________________ 54
Hart and Wechsler, “ The Federal Courts and the Federal System”
(1953)_________________________________________________________ 48
Howe, Mark DeWolfe, “ The Supreme Court, 1952 Term” (Fore
word), 67 Harvard Law Review 91 (1953)____________________ 60
Landis, James M., “ Statutes and the Sources of Law,” Harvard
Legal Essays (1934)__________________________________________ 51
Leflar and Davis, “ Segregation in the Public Schools— 1953,” 67
Harvard Law Review 377 (1954)_____________________________ 27
VI
“ Legal Sanctions to Enforce Desegregation in the Public Schools:
The Contempt Power and the Civil Rights Acts,” 65 Yale
Law Journal 630 ( 1 9 5 6 ) ____________________________________ 58
McKay, ‘ “ With All Deliberate Speed’ A Study of School Desegre
gation,” 31 New York University Law Review 991 (1956) _ 28, 57, 58, 73
Murphy, Walter F., “ Desegregation in Public Education— A
Generation of Future Litigation,” 15 Maryland Law Review
221 (1955)_____________________________________________________ 29
Pomeroy, Equity Jurisprudence, vol. 4 (5th ed.)_________________ 57
Remmlein, The Law of Local Public School Administration
(1953)--------------------------------------------------------------------------------------- 73
“ The Proper Scope of the Civil Rights Act,” 66 Harvard Law
Review 1285 (1953)___________________________________________ 44
Stone, “ The Common Law in the United States,” 50 Harvard
Law Review 4 (1936)_________________________________________ 50
“ The Supreme Court, 1950 Term,” 65 Harvard Law Review
107 (1951)___________________________________ 45,
Warren, “ Federal Criminal Laws and the State Courts,” 38
Harvard Law Review 544 (1925)_____________________________ 39
Other authorities— Continued Page
In the United States Court of Appeals
for the Eighth Circuit
No. 15510 (Civil)
H ekbert B rew e r , et a l ., a ppe lla n ts
v.
H oxie S ch ool D istrict No. 46 of L aw ren ce
C o u n t y , A r k a n s a s , e t a l ., appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF ARKANSAS, JONESBORO DIVISION
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN T E R E S T OF T H E U N IT E D ST A TE S
The dispute in this case is between a school board
in Arkansas and certain private individuals and
groups. But the issues presented, far from involv
ing only a “ purely local and private dispute,” 1 have
nationwide impact. The United States therefore con
siders it appropriate to file this brief as amicus
curiae, which is done pursuant to the Court ’s approval
of February 24, 1956, following a stipulation between
the parties for the filing of amicus curiae briefs by
the United States in support of appellees’ position
1 Cf. Defts.’ Br. 39.
( i )
2
and by the State of Georgia 2 in support of appellants’
position. We shall not attempt to deal with every
aspect of the issues. We take the facts as found by
the court below. We shall try to limit ourselves to
those features of the case which are of particular
concern to the Government.
On May 17, 1954, the Supreme Court issued its
opinion in Brown v. Board of Education, and com
panion cases, 347 U. S. 483 (commonly called the
School Segregation Cases), in which it held that ra
cially segregated public education was violative of the
Equal Protection Clause of the Fourteenth Amend
ment. The question of relief was deferred for further
argument, following which, on May 31, 1955, the Court
announced its opinion and judgments. See Brown v.
Board of Education, 349 U. S. 294. The practical
effect of the School Segregation Cases was to require
all school boards administering public education pro
grams to end segregation of pupils within their indi
vidual school districts as soon as it was administra
tively feasible to do so. Less than a month after the
Court’s ruling of May 31, 1955, appellees3 who were
the directors of the Hoxie, Arkansas, school district,
2 The briefs o f the appellants (defendants below, and hereinafter
thus referred to) and of the Attorney General of Georgia are—
word for word—identical but for minor formal differences and the
contention made by Georgia (Ga. Br. 41-55), though not by de
fendants themselves, that the injunction deprives the defendants
of free speech and assembly rights. Therefore, except for refer
ences to that contention, citations herein are confined to defendants’
brief.
3 Plaintiffs below, and hereinafter thus referred to.
3
officially decided to desegregate forthwith. They had
previously concluded that there were no administra
tive impediments to doing so. (There were only about
25 Negroes to be integrated with about 1,000 white
students.)
Deliberate interference by the defendants thereafter
with the plaintiffs’ prompt and diligent compliance
with the decision of the Supreme Court ultimately re
sulted in this litigation.
The United States considers that a basic issue is
presented in this case, namely, whether or not state
officials can be protected in federal courts from pur
poseful and formidable obstruction to the performance
of a duty imposed upon them by the Federal Consti
tution. It is primarily for that reason that the
United States considers it appropriate to submit this
brief as amicus curiae.
The United States also filed a brief as amicus curiae
in the School Segregation Cases. Its interest in doing
so as set forth therein applies with equal force here.
Our concern, common to both eases, is with “ the
affirmative government obligation to insure respect
for fundamental human rights” 4—regardless of
whether such rights are threatened, as here, by action
against those duly constituted officials who are rer
sponsible for their being protected and secured, or
by action against those individuals for whose benefit
they exist.
4 Br. for the United States as Amicus Curiae in Brown v. Board
of Education, and companion cases, in the Supreme Court, p. 2.
4
ST A T E M E N T OE T H E CASE 5 6
This is an appeal from an order of the United
States District Court for the Eastern District of
Arkansas permanently enjoining the defendants from
interfering with the plaintiffs’ desegregation of the
Hoxie schools, from interfering with the free oper
ation of the schools within plaintiffs’ district, from
deterring the attendance at school of the children
within the district, from threatening or intimidating
the individual plaintiffs, and from taking any acts
to seek to compel by force, intimidation, threats, or
violence a rescission of the orders desegregating the
Hoxie public schools (R. 53-54). Plaintiffs are the
school board as a body corporate and as individuals
and directors 0 and the school superintendent (R. 30-
31). Defendants are various individuals who are
5 As previously noted, the Government takes the facts as they
were found by the court below, including plaintiffs’ proposed
Findings of Fact, which the court also adopted (R. 45). It should
be observed that two federal judges (Judge Trimble, who issued
the preliminary injunction, and Judge Beeves, who made the
injunction permanent) had the opportunity o f evaluating the
demeanor o f the witnesses and judging their credibility. Judge
Reeves concluded his Findings o f Fact with the following reveal
ing observation (E. 44-45) : “ Practically all o f the evidence on
the part o f the plaintiffs tending to support the above Findings
remains unanswered by the defendants. Although several de
fendants were present in the courtroom during the trial o f this
case, they failed to take the witness stand and controvert the
rather damaging testimony against them offered by the plaintiffs.”
Judge Beeves’ Findings o f Fact should not be set aside unless
clearly erroneous. Rule 5D (a), F. E. Civ. P.
6 Except for K. E. Vance, the school superintendent, the plain
tiffs were the school board, which sued as “ a body corporate” ,
and its members sued “ individually and as directors.” (E. 1, 8.)
But cf. Defts.’ Br. 22.
5
representatives of Arkansas organizations, also de
fendants, organized to resist non-segregated educa
tion in the local public schools (R. 30-31). The
individual defendants are citizens of Arkansas (R.
30-31).
Having found that the Arkansas segregation laws
were in effect unconstitutional under the Supreme
Court’s decision in the School Segregation Cases (R.
42-43), being aware of their oaths to support the Con
stitution of the United States, and having determined
that all administrative obstacles were removed (R.
31), the plaintiff school board members issued an
order desegregating the schools under their jurisdic
tion (R. 42-43). The schools for about three weeks
thereafter operated without incident (R. 43). Dis
approval by defendants and others culminated in a
mass meeting on August 3, 1955, at which certain of
the defendants made inflammatory speeches revealing
a concert of action and agreement on their part by
force and intimidation to effect a rescission of the
desegregation order (R. 44). The utterances of the
speakers were designed to have, and did have, the
effect of encouraging violence and intimidating the
school board (R. 44). Other mass meetings of similar
nature were held (R. 44, R. 32-35). Threats were
directed at the school board (R. 44) and acts of ter
rorism against the school superintendent and school
patrons (R. 44). School activities had to be suspended
(R. 44). White parents were alarmed and kept their
children away from school. Colored parents were ad
monished to withdraw their children from the desegre
gated school system (R. 44). A decline in school
attendance from 50 to 60 percent occurred (R. 44).
6
On October 13, 1955, before the opening of the fall
school term, plaintiffs filed their complaint (R. 1),
and a temporary restraining order was issued October
14, 1955 (R. 10). The order for a preliminary in
junction of November 1, 1955 (R. 17), was made
permanent January 9, 1956 (R. 42), the formal order
being filed February 28, 1956 (R. 53).
STATEM ENT OF POINTS TO BE ARGUED AND AU TH ORITIES
RELIED ON
I
The court below had jurisdiction over plaintiffs’ cause o f action
1. Federal jurisdiction in the ease at bar is based
upon 28 U. S. C., Section 1331 and 28 U. S. C., Sec
tion 1343.
28 U. S. C., Section 1331.
28 U. S. C., Section 1343.
Gully v. First National Bank, 299 U. S. 109.
Bell v. Hood, 327 U. S. 78.
Montana-Dakota Utilities Go. v. Northwestern
Public Service Co., 341 IT. S. 246.
American Federation of Labor v. Watson, 327
IT. S. 582.
The Fair v. Kohler Pie & Specialty Co., 228
IT. S. 22.
Mosher v. Phoenix, 287 IT. S. 29.
McGoon v. Northern Pacific Railway Co., 204
Fed. 998 (D. C. N. I).).
Siler v. Louisville & N. R., 213 IT. S. 175.
Hum v. Oursler, 289 IT. S. 238.
Cromwell v. Hillsborough TP., 149 F. 2d 617
(C. A. 3), aff’d., 326 IT. S. 620.
Philadelphia Co. v. Stimson, 223 IT. S. 605.
Hays v. Seattle, 251 IT. S. 233.
7
Pennoyer v. McConnaughy, 140 U. S. 1.
City Railway Co. v. Citizens’ Railroad Go., 166
U. S. 557,'
City of Mitchell v. Dakota Telephone Co., 246
U. S. 396.
Spielman Motor Co. v. Dodge, 295 U. S. 89.
2. Recourse to the federal courts for vindication of
federal rights will not be denied merely because a
cause of action might likewise exist in the state courts.
United States v. Cruikshank, 92 U. S. 542.
United States v. Waddell, 112 IT. S. 76.
Romero v. Weakley, 226 F. 2d 399 (C. A. 9).
Dyer v. Abe, 138 Fed. Stipp. 220 (D. C.
Hawaii).
I I
Plaintiffs are under a Constitutional duty to support and obey
the Fourteenth Amendment. They have an inherent fed
eral right to be free from direct interference with the per
formance o f that duty
Brown v. Board of Education, 347 IT. S. 483,
349 IT. S. 294.
Constitution, Article ¥1, Clause 2 and Clause
3.
Martin v. Hunter’s Lessee, 1 Wheat. 304.
Ex parte Yarbrough, 110 IT. S. 651.
Logan v. United States, 144 IT. S. 2S3.
Tennessee v. Dams, 100 U. S. 257.
Osborn v. The Bank of the United States, 9
Wheat. 738.
In re Neagle, 135 IT. S. 1.
Ex parte Riggins, 134 Fed. 404 (C. C. N. D.
Ala.).
United States v. Powell, 151 Fed. 648
(C. C. N. D. Ala.).
8
In re Coy, 127 U. S. 731.
Ex parte Siebold, 100 TJ. S. 371.
Levin v. United States, 128 Fed. 826 (C. A. 8).
Testa v. Katt, 330 TJ. S. 386.
Second Employers’ Liability Cases, 223 TJ. S. 1.
McKnett v. S t Louis A S. F. By., 292 TJ. S. 230.
Prigg v. Pennsylvania, 16 Pet. (41 TJ. S.) 536.
I l l
The statutory provision for damages for conspiring to prevent
State officers from securing equal protection of the laws,
and other statutory provisions, provide a standard to an
equity court in restraining such conduct.
42 U. S. C. 1985 (3).
Collins v. Hardyman, 341 U. S. 651.
Fitzgerald v. Pan American World Airways,
229 F. 2d 499 (C. A. 2).
Beitmeister v. Beitmeister, 162 F. 2d 691 (C. A.
2).
Roosevelt Field v. Town of North Hempstead,
84 Fed. Supp. 456 (D. C. N. ¥.).
Brown v. Board of Education, 349 TJ. S. 294.
Bell v. Hood, 327 TJ. S. 678.
Slifha v. Johnson, 161 F. 2d 467 (C. A. 2).
Van Beech v. Sabine Towing Co., 300 TJ. S. 342.
Gooch v. Oregon Short Line B. Co., 258 TJ. S.
22.
Johnson v. U. S., 163 Fed. 30 (C. A. 1).
Keifer & Keifer v. B. F. C., 306 TJ. S. 381.
United States v. Hutcheson, 312 TJ. S. 219.
South cfc Central American Commercial Co. v.
Panama B. Co., 237 N. Y. 287, 142 N. E. 666.
The Arizona v. Anelich, 298 TJ. S. 110.
Warner v. Goltra, 293 TJ. S. 155,
9
IV
The identity o f interest between the school board and the
school children is sufficiently close so as to permit the school
board to assert the rights o f the school children under the
Fourteenth Amendment in a Federal equitable proceeding'
to restrain the illegal conduct. Private action against a
school board to prevent it from affording equal protection
o f the laws to the school children would result in a depriva
tion o f the school children’s rights under the Fourteenth
Amendment.
Barrows v. Jackson, 346 U. S. 249.
Pierce v. Society of Sisters, 268 U. S. 510.
Buchanan v. Warley, 245 U. S. 60.
Truax v. Raich, 239 U. S. 33.
Columbia Broadcasting System v. United
States, 316 U. S. 407.
Williams v. United States, 341 U. S. 97.
Terry v. Adams, 345 U. S. 461.
V
The injunction does not impose any restrictions upon lawful
free speech and assembly
Schenck v. United States, 249 IT. S. 47.
A m e r i c a n Communications Association v.,
Douds, 339 IT. S. 382.
Robertson v. Baldwin, 165 IT. S. 275.
Donaldson v. Read Magazine, 333 IT. S. 178.
Chandler v. United States, 171 F. 2d 921 (C. A..
1), cert, den., 336 IT. S. 918, rehear, den., 336
IT. S. 947.
United Public Workers v. Mitchell, 330 IT. S. 75.
Giboney v. Empire Storage & Ice Co., 336 U. S.
490.
Chaplinsky v. New Hampshire, 315 U. S. 568.
Cantwell v. Connecticut, 310 IT. S. 296.
Feiner v. New York, 340 IT. S. 315.
10
Dennis v. United States, 341 U. S. 494.
Beauharnais v. Illinois, 343 U. S. 250.
V I
Where the public interest is concerned courts o f equity will go
.farther in granting relief than might otherwise be the case
Board of Education v. Barnette, 319 U. S. 624.
Georgia v. Tennessee Copper Co., 206 U. S. 230.
Virginian Railway Co. v. System Federation
No. 40, 300 U. S, 515.
ASS0SEHT
I
The court below had jurisdiction over plaintiffs’ cause
o f action
1. Federal jurisdiction in the case at bar is invoked
by the Complaint (R. 1-2) under two general pro
visions. (1) It is a civil action arising under the
Constitution, laws or treaties of the United States
wherein the amount in controversy exceeds $3,000
(28 U. S. C. A., Sec. 13317) . The action as in effect
7 “ The district courts shall have original jurisdiction o f all civil
actions wherein the matter in controversy exceeds the sum or
value of $3,000, exclusive of interest and costs, and arises under
the Constitution, laws or treaties of the United States.” Sec.
1331, United States Code, Title 28. The court below found that
the amount in controversy exceeded $3,000. (From Conclusions
of Law Proposed by Plaintiffs (E. 31) and adopted by the court
below (R. 45)). See, also, R. 46, and T. 18-19. Cf. Wiley v.
Sinkier, 179 U. S. 58; Swafford v. Templeton, 185 U. S. 487;
Carroll v. Somervell, 116 F. 2d 918, 920 (C. A. 2), concerning the
fact that the difficulty of proving the value o f a Constitutional
right has not been held to prevent a judge or jury from valuing
it at a sum greater than $3,000 for the purpose of sustaining
federal jurisdiction.
11
stated in the Complaint arises under the Supremacy
Clause of the Constitution,8 implementing the Four
teenth Amendment, and the corollary or related Con
stitutional provision imposing upon, among others,
state officers on oath or affirmation to support the
Constitution,9 Upon these fundamental and perva
sive provisions, as will be considered in detail else
where in. our brief, rests plaintiffs’ primary assertion
of a Constitutional right, The nub of this case is
the jurisdiction which stems from the Fourteenth
Amendment in conjunction with the Supremacy
Clause of the Constitution and the cause of action
to which they give rise. For from the Supremacy
Clause derives the implied right to be free from inter
ference with the performance of a duty which the
Constitution itself imposes. Yet nowhere in the brief
of the defendants or of Eugene Cook, Attorney Gen
eral of Georgia, as amicus curiae, is consideration
given to that crucial issue.
(2) It is a Civil Rights case, over which district
courts are granted jurisdiction by 28 U. S. C. A.,
8 “ This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority o f the United States,
shall be the supreme Law of the Land; and the Judges in every
State shall be. bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” Consti
tution, Art, VI, Cl. 2.
s>«* * * [A ] 11 executive and judicial Officers, both of the
United States and of the several States, shall be bound by Oath
or Affirmation, to support this Constitution; * * Constitu
tion, Art. V I, Cl. 3.
394702— 56-------2
12
Sec. 1343.10 The Civil Rights statutes referred to in
the Complaint (R. 2) have the effect of conferring
derivative rights upon plaintiffs here, both in their
capacity as state officers subject to federal Consti
tutional requirements to accord equal protection of
the laws to the school children and in their capacity
of being, in effect, representatives of the school chil
dren themselves.
The traditional tests for deciding when a case arises
under the Constitution or laws of the United States
are set forth in the leading case of Gully v. First Na
10 28 U. S. C., Sec. 1343: “ The district courts shall have original
jurisdiction of any civil action authorized by law to be com
menced by any person:
“ (1) To recover damages for injury to his person or prop
erty, or because of the deprivation of any right or privilege of
a citizen o f the United States, by any act done in furtherance
o f any conspiracy mentioned in section 1985 o f Title 42;
“ (2) To recover damages from any person who fails to prevent
or to aid in preventing any wrongs mentioned in section 1985
o f Title 42 which he had knowledge were about to occur and
power to prevent;
“ (3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, o f any right,
privilege or immunity secured by the Constitution o f the United
States or by any Act o f Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United
States.” (As amended September 3, 1954, Ch. 1263, Sec. 42, 68
Stat. 1241.)
Under this statute the federal district courts are given juris
diction without allegation or proof of any jurisdictional amount.
Hague v. 0. / . <?., 307 U. S. 496, 507-14, 527-32; Douglas v.
Jeanette, 319 U. S. 157, 161.
13
tional Bank, 299 U. S. 109,11 where the Court stated
(299 U. S. at 112-113)':
How and when a case arises “ under the Con
stitution or laws of the United States” has been
much considered in the books. Some tests are
well established. To bring a case within the
statute, a right or immunity created by the
Constitution or laws of the United States must
be an element, and an essential one, of the
plaintiff’s cause of action. Starin v. New
York, 115 U. S. 248, 257; First National Bank
v. Williams, 252 U. S. 504, 512. The right or
immunity must be such that it will be sup
ported if the Constitution or laws of the United
States are given one construction or effect, and
defeated if they receive another. Ibid; King
County v. Seattle School District, 263 U. S..
361, 363, 364. A genuine and present contro
versy, not merely a possible or conjectural one,
must exist with reference thereto (New Orleans
v. Benjamin, 153 U. S. 411, 424; Defiance
Water Co. v. Defiance, 191 U. S. 184, 191; Joy
v. St. Louis, 201 U. S. 332; Denver v. 'N,ew York
Trust Co., 229 U. S. 123, 133), and the con
troversy must be disclosed upon the face of the
11 In that case one national banking association transferred its
assets to another national bank under a contract whereby the debts
and liabilities. of the former were assumed by the latter, which
included tax claims due the State Collector of Taxes. He brought
suit against the transferee bank for such taxes. The defendant
bank removed the case to federal court on the ground that the case
was one “ arising under the Constitution or laws o f the United
States.” The bank claimed that since the power to levy a tax upon
the shares of national banks originated in the provisions of a fed
eral statute, the State Tax Collector counted upon that statute in
suing for the tax. But the Supreme Court held that the suit was
not one arising under the laws of the United States.
14
complaint, unaided by the answer or by the pe
tition for removal. Tennessee v. Union <h
Planters Bank, 152 U. 8. 454; Louisville &
Nashville B. Co. v. Mottley, 211 II. S. 149; The
Fair v. Kohler Die & Specialty Co., 228 U. S.
22, 25; Taylor v. Anderson, 234 IT. S. 74. In
deed, the complaint itself will not avail as a
basis of jurisdiction in so far as it goes beyond
a statement of the plaintiff’s cause of action
and anticipates or replies to a probable defense.
Devine v. Los Angeles, 202 IT. S. 313, 334; The
Fair v. Kohler Die & Specialty Co., supra.
The case at bar satisfies all the jurisdictional stand
ards of the Gully case.
The case of Bell v. Hood, 327 IT. S. 678, is particu
larly apposite here. In that case the plaintiff brought
suit in the federal court against FB I agents for al
leged illegal search and seizure and false imprison
ment. Federal jurisdiction was invoked on the
ground that they had abridged rights guaranteed to
the plaintiff by the Constitution. The action was dis
missed for lack of jurisdiction. The Supreme Court
reversed, stating that since the right of the plaintiff
to recover was based on a substantial question of the
scope of the Fourth and Fifth Amendments, the case
arose under the Constitution. The defendants there
had urged that the complaint stated a cause of action
for the common law tort of trespass made actionable
by state law and that it therefore did not raise ques
tions “ arising under the Constitution or laws of the
United States.” To support that contention they
maintained that the plaintiffs could not recover under
the Constitution or laws of the United States, since
15
the Constitution does not expressly provide for recov
ery in money damages for violations of the Fourth
and Fifth Amendments and Congress has not enacted
a statute so providing. The Court held, however, that
a mere reading of the complaint refuted the first con
tention and that the second contention was not deci
sive on the question of jurisdiction, saying (327 U. S.,
at 681-682) :
Whether or not the complaint as drafted
states a common law action in trespass made
actionable by state law, it is clear from the
way it was drawn that petitioners seek recov
ery squarely on the ground that respondents
violated the Fourth and Fifth Amendments.
It charges that the respondents conspired to
do acts prohibited by these amendments and
alleges that respondents’ conduct pursuant to
the conspiracy resulted in damages in excess
of $3,000. It cannot be doubted therefore that
it was the pleaders’ purpose to make violation
of these constitutional provisions the basis of
this suit. Before deciding that there is no
jurisdiction, the District Court must look to
the way the complaint is drawn to see if it is
drawn so as to claim a right to recover under
the Constitution and laws of the United States.
For to that extent “ the party who brings a suit
is master to decide what law he will rely upon
and * * * does determine whether he will
bring a ‘ suit arising under’ the * * * [Con
stitution or laws] of the United States by his
declaration or bill.” The Fair v. Kohler Die
Go., 228 U. S. 22, 25. Though the mere faib
ure to set out the federal or constitutional
claims as specifically as petitioners have done
16
would not always be conclusive against the
party bringing the suit, where the complaint,
as here, is so drawn as to seek recovery directly
under the Constitution or laws of the United
States, the federal court, but for two possible
exceptions later noted, must entertain the suit.
Thus allegations far less specific than the ones
in the complaint before us have been held ade
quate to showT that the matter in controversy
arose under the Constitution of the United
States. Wiley v. Sinkler, 179 U. S. 58, 64-65;
Stvafford v. Templeton, 185 U. S. 4:87, 491-492.
The reason for this is that the court must as
sume jurisdiction to decide whether the allega
tions state a cause of action on which the court
can grant relief as well as to determine issues
of fact arising in the controversy.
The Court then went on to say (327 U. S. at 682) :
Jurisdiction, therefore, is not defeated as re
spondents seem to contend, by the possibility
that the averments might fail to state a cause
of action on which petitioners could actually
recover. For it is well settled that the failure
to state a proper cause of action calls for a
judgment on the merits and not for a dismissal
for want of jurisdiction. Whether the com
plaint states a cause of action on which relief
could be granted is a question of law and just
as issues of fact it must be decided after and
not before the court has assumed jurisdiction
over the controversy. I f the court does later
exercise its jurisdiction to determine that the
allegations in the complaint do not state a
ground for relief, then dismissal of the case
would be on the merits, not for want of juris
17
diction.12 Swafford v. Templeton, 185 U. S. 487,
493, 494; Binderup v. Pathe Exchange, 263
U. S. 291, 305-308. The previously carved out
exceptions are that a suit may sometimes be
dismissed for want of jurisdiction where the
alleged claim under the Constitution or federal
statutes clearly appears to be immaterial and
made solely for the purpose of obtaining juris
diction or where such a claim is wholly insub
stantial and frivolous. The accuracy of calling
these dismissals jurisdictional has been ques
tioned. The Fair v. Kohler Die Co., supra, 228
U. S. at 25. But cf. Swafford v. Templeton,
supra.
A recent application of the doctrine, closely akin to
that of Bell v. Hood but involving a statutory rather
than a Constitutional claim occurs in the case of Mon-
tana-Dakota Utilities Co. v. Northwestern Public
Service Co., 341 II. S. 246, where the Court stated
(341 II. S. at 249) :
As frequently happens where jurisdiction
depends on subject matter, the question
whether jurisdiction exists has been confused
with the question whether the complaint states
a cause of action. The Judicial Code, in vest
ing jurisdiction in the District Courts, does
not create causes of action, but only confers
jurisdiction to adjudicate those arising from
other sources which satisfy its limiting provi
sions. Petitioner asserted a cause of action
under the Power Act. To determine whether
12 In further proceedings in the District Court the complaint
was dismissed for failure to state a claim upon which relief could
be granted. 71 F. Supp. 813 (S. D. Cal. 1947).
18
that claim is well founded, the District Court
must take jurisdiction, whether its ultimate
resolution is to be in the affirmative or the
negative. I f the complaint raises a federal
question, the mere claim confers power to de
cide that it has no merit, as well as to decide
that it has. In the words of Mr. Justice
Holmes, “ * * * if the plaintiff really makes
a substantial claim under an act of Congress
there is jurisdiction whether the claim ulti
mately be held good or bad.” The Fair v.
Kohler Die Go., 228 IT. S. 22, 25. See also
Burn v. Oursler, 289 U. S. 238, 240. Even a
patently frivolous complaint might be suffi
cient to confer power to make a final decision
that it is of that nature, binding as res judicata
on the parties.
See, also, American Federation of Labor v. Watson,
327 IT. S. 582, 591.
The existence of a federal question must be deter
mined by the allegations of the bill of complaint.
The Fair v. Kohler Die &. Specialty Co., 228 IT. S.
22; Mosher v. Phoenix, 287 IT. S. 29; Bell v. Hood,
supra. Where federal courts have jurisdiction because
the complaint shows that a cause of action is one
“ arising under the Constitution * * *” this juris
diction is not lost merely because defendants’ answer
does not controvert the federal ingredient, or raises
only issues of fact. The Fair v. Kohler Die & Spe
cialty Co., supra; McGoon v. Northern Pacific Bail
way Co., 204 Fed. 998 (D. C. K D.).
Moreover, if a federal court obtains jurisdiction
over a cause of action because a federal question is
19
raised, it will retain jurisdiction to decide issues of
state law raised by plaintiff on the same cause of
action, even though plaintiff is not entitled to relief
on his federal claim. Siler v. Louisville & N. R.,
213 U. S. 175; Hum v. Oursler, 289 TJ. S. 238; Crom
well v. Hillsborough TP., 149 F. 2d 617 (C. A. 3),
aff’d., 326 U. S. 620.
Jurisdiction of federal courts to issue injunctions
to protect rights safeguarded by the Constitution is
well established. See Philadelphia Go. v. Stimson,
223 U. S. 605; Hays v. Seattle, 251 IT. S. 233; Pen-
noyer v. McConnaughy, 140 IT. S. 1; City Railway
Co. v. Citizens’ Railroad Co., 166 IT. S. 557; City of
Mitchell v. Dakota Telephone Co., 246 IT. S. 396, 407;
and Bell v. Hood, supra, at 684. An injunction will
issue wherever necessary “ to afford adequate protec
tion of Constitutional rights,” Spielman Motor Co. v.
Dodge, 295 IT. S. 89, 95. Federal courts have the
power to afford all remedies necessary to the vindica
tion of federal substantive rights defined in statutory
and constitutional provisions except where Congress
has explicitly indicated that such remedy is not avail
able.13
2. Defendants contend (DeftsT Br. 30, 36-37) that
whatever wrongs were allegedly committed by them
would have been actionable in the state courts but not
13 “ Federal Jurisdiction in Suits for Damages Under Statutes
not Affording Such Remedy,” 48 Columbia Law Review 1090,
1094 I 1948).
20
in the federal courts.14 A similar argument has been
ineffectually advanced in several cases involving dep
rivation of federal rights.15 16 For if, as in the case at
bar, a federal right is involved, recourse to the federal
courts for its vindication and protection will not be
denied merely because a cause of action might like
wise exist in the state court.
14 It is interesting to note that the State o f Georgia, as amicus
curiae in support of defendants, subscribes to their position that
whatever rights plaintiffs may have should be asserted in the
state and not the federal forum. For not long ago the State
o f Georgia and its present Attorney General took a contrary
position.
The State o f Georgia sued an Illinois resident in the federal
district court for damages from an alleged conspiracy to vio
late Georgia’s revenue laws, alleging that the defendant with
certain Georgia residents conspired to ship intoxicating liquors
from Illinois to Georgia and that no Georgia warehouse fees or
taxes were paid thereon. The action was based on (1) a fed
eral claim arising under the Webb-Kenyon Act and the Twenty-
first Amendment and (2) a non-federal claim arising from, the
violation o f state law. It was held that the complaint stated
no federal cause of action. Georgia nevertheless insisted that
since the federal district court had accepted jurisdiction it must
adjudicate Georgia’s claim resting upon the state law, even though
the court had decided that no federal claim had been asserted
upon which relief could be granted. This contention too was
rejected and the judgment dismissing the complaint was affirmed.
State of Georgia v. Wenger, 187 F. 2d 285 (C. A. 7), cert. den.
342 U. S. 822, rehear, den., 342 U. S. 874. It has been urged that
the federal court should have retained jurisdiction (see 14 Georgia
Bar Journal 98 (1951)), and perhaps it should have (cf. Siler
v. Louisville & N. R. Co., 213 U. S. 175; H um v. Oursler, 289
U. S. 238; Cromwell v. Hillsborough TP., 149 F. 2d 617, aff’d.
326 IT. S. 620).
16 See, e. g., Screws v. United States, 325 U. S. 91, at 114 (Rut
ledge, J., opinion) : “ In effect, the position [o f the petitioners]
urges it is murder they have done, not deprivation o f constitu
tional right. * * * The defense is not pretty. Nor is it valid.”
21
As stated in United States v. Crmksharik, 92 U. S.
542, at 550-551:
The people of the United States resident
within any State are subject to ttvo govern
ments: one State, and the other National; but
there need be no conflict betwen the two. The
powers which one possesses, the other does not.
They are established for different purposes,
and have separate jurisdictions. Together
they make one whole, and furnish the people
of the United States with a complete govern
ment, ample for the protection of all their
rights at home and abroad. True, it may some
times happen that a person is amenable to both
jurisdictions for one and the same act. Thus,
if a marshal of the United States is unlawfully
resisted while executing the process of the
courts within a State, and the resistance is
accompanied by an assault on the officer, the
See, also, 'Williams v. United States, 179 F. 2d 656 (C. A . 5), and
cases cited at p. 660, aff’d. 341 U. S. 97; Bell v. Hood, 327 U. S.
678, 680-681.
Another example occurs in Logan v. United States, 144 U. S.
263, where defendant’s argument appears in the report (at 277):
“ Then comes the question, ‘W hy could not Texas punish these
people for committing assaults, aggravated assaults, or murder
within her unquestioned and unquestionable boundaries?’ Her
criminal code, it seems, is most ample for this purpose. It would
be assuming too much to say she would not try to do it. But i f
this unfortunately were so, jurisdiction would not come to the
United States court because Texas failed to do her duty. This
will not stand the test. There must be some express law giving
the jurisdiction, and that law must be constitutional. These men
who were assaulted were in custody of the marshal, but that did
not affect the jurisdiction o f the State; whatever crime was com
mitted was against Texas.” [Emphasis, the court’s.]
The argument did not prevail, since a federal right was held
to be involved.
22
sovereignty of the United States is violated
by the resistance, and that of the State by the
breach of peace, in the assault. So, too, if one
passes counterfeited coin of the United States
within a State, it may be an offence against
the United States and the State: the United
States, because it discredits the coin; and the
State, because of the fraud upon him to whom
it is passed. This does not, however, neces
sarily imply that the two governments possess
powers in common, or bring them into conflict
with each other. It is the natural consequence
of a citizenship which owes allegiance to two
sovereignties, and claims protection from both.
The citizen cannot complain, because he has
voluntarily submitted himself to such a form
of government. He owes allegiance to the two
departments, so to speak, and within their re
spective spheres must pay the penalties which
each exacts for disobedience to its laws. In
return, he can demand protection from each
within its own jurisdiction.“
The federal right to be free from direct interfer
ence with the performance of a Constitutional duty,
which is involved in this case, transcends and is quite
different from a mere assault, for example, cogniza
ble in the local courts. The language of the Supreme
Court in United States v. Waddell, 112 U. S. 76, at
80, is equally fitting here:
The right here guaranteed is not the mere
right of protection against personal violence.
This if the result of an ordinary quarrel or 16
16 Emphasis in quotations in this brief aie ours, unless other
wise indicated.
See, also, Moore v. Illinois, 55 U. S. 13,19-20.
23
malice, would be cognizable under the laws o f
the State and by its courts. But it is some
thing different from that.
If, as we contend, defendants threatened to deprive
the plaintiffs here of a federal right, the fact that
plaintiffs could have resorted to the state courts for pos
sible relief there did not in any way restrict their
right to go to the federal courts for protection of their
federal rights:
It seems apparent that the existence of pos
sible relief in a state court is significant only
as regarding remedy and not as to the existence
of a deprivation of rights. The existence of
an exercisable remedy in a state court may be
suggestive of the proposition that there has
been no deprivation of rights by the state, but
the existence of such remedy is immaterial to
the question of whether there has been indi
vidual infringement of rights.17
In Romero v. Weakley, 131 P. Supp. 818 (I). C.
S. D. Cal.) plaintiffs brought class actions under
what is now Title 42, United States Code Section
1983, against certain California school authorities
charging them with racial discrimination effected
through establishment of school boundaries, though
California law did not permit segregation. The Dis
trict Court refused to grant the requested relief and
held that the case was one for resolution in the state
courts.
There is no allegation [the Court said (131
Ped. Supp. at 831-832)] that the California
17 “ Collins y. Hardyman: More on the Civil Rights Act,” 46
Illinois Law Review 931,934 (1952).
24
courts are not open and available to plaintiffs,
and none that such courts are not competent.
The California laws provide adequate methods
of procedure for a class action, * * * to secure
relief either by declaratory judgment, * * *
or by mandamus, * * *, or by injunction, * * *.
I f such proceeding's are brought in the Cali
fornia courts, and if, as both parties claim, seg
regation is prohibited by California law, then
plaintiffs may have their relief if there is seg
regation in fact, and the federal Constitutional
question will never arise [the court’s emphasis],
and the Federal courts will not be called upon
to touch the “ sensitive area of social policy
upon which the federal courts ought not to
enter unless no alternative” to the adjudication
of a Federal constitutional question is open. * * *
However, the Court of Appeals reversed, 'Romero v.
Weakley, 226 F. 2d 399 (C. A. 9). The Court said
(226 F. 2d, at 400-401) :
One of the obvious purposes of the creation
of right to litigate these civil rights in a federal
court is to enable a member of a minority group
claiming race or color discrimination to choose
either a court presided over by a federal judge
appointed by the President of the United
States or a state court, presided over by an
elected judge.
Here it is the Superior Court of Imperial
County elected by the majority of its voters
where in this equitable case the facts involved
may be submitted to a jury of such voters to
find and advise upon the issue of the discrimi
nation alleged to have been committed by school
25
boards elected by the voters of the county’s
several school districts and by the elected
County Board of Supervisors in the fixing of
the boundaries of the school district. The ap
pellants well could have concluded that there
was a greater assurance of a just consideration
of their complaints in the District Court of the
United States than in the Superior Court of
Imperial County. As stated in Willcox v. Con
solidated Gas Co. of New York, 212 U. S. 19,
29, S. Ct. 192, 195, 53 L. Ed. 382:
“ When a Federal court is properly appealed
to in a case over which it has by law juris
diction, it is its duty to take such jurisdic
tion * * *. The right of a party plaintiff to
choose a Federal court where there is a choice
cannot be properly denied.”
See, also, Dyer v. Abe, 138 Fed. Supp. 220, 232-233
(D. C. Hawaii, Feb. 10, 1956).
I I
Plaintiffs are under a Constitutional duty to support and
obey the Fourteenth Amendment. They have an inherent
Federal right to foe free from direct interference with the
performance o f that duty
The Fourteenth Amendment includes the provision
that no state shall deny to any person within its juris
diction the equal protection of the laws. In Brown v.
Board of Education, 347 U. S. 483 (and companion
cases), the Supreme Court held that segregated pub
lic education is a denial of the equal protection of the
laws. I f a state is to afford public education it must
do so on a basis equal to all and without racial dis
tinction. Separation of the races in a public educa-
26
tion system, the Court has held, is inherently dis
criminatory. The Court stated in the Brown case,
347 U. S. at 495:
We conclude that in the field of public edu
cation the doctrine of “ separate but equal”
has no place. Separate educational facilities
are inherently unequal. Therefore, we hold
that the plaintiffs and others similarly situated
for whom the actions have been brought are, by
reason of the segregation complained of, de
prived of the equal protection of the laws guar
anteed by the Fourteenth Amendment. * * *
Because of “ the wide applicability of this decision”
and the “ great variety of local conditions” (id., at
495), the Court deferred formulation of the decrees
in the Brown case, emphasizing as it did so that, “ We
have now announced that such segregation is a denial
of the equal protection of the laws.” (Id., at 495.)
When, after additional argument, the Supreme
Court issued its decrees in those cases, it stated at
the outset (349 U. S. 294, at 298) :
These cases were decided on May 17, 1954.
The opinions of that date, declaring the funda
mental principle that racial discrimination in
public education is unconstitutional are incor
porated herein by reference. All provisions
of federal, state, or local law requiring or per
mitting such discrimination must yield to this
principle.
The Court also stated (id., at 299) :
Full implementation of these constitutional
principles may require solution of varied local
school problems. School authorities have the
27
primary responsibility for elucidating, assess
ing, and solving these problems; courts will
have to consider whether the action of school
authorities constitutes good faith implementa
tion of the governing constitutional principles.
The principles enunciated by the Supreme Court in
the School Segregation Cases are binding upon plain
tiffs in this case, as well as on all other school boards
or school officials administering public education pro
grams. For in practical effect, the rights and duties
of not only the immediate parties to the cases before
the Supreme Court were at issue but also the rights
and duties of all others similarly situated. See 347
U. S., at 495.18 * S.
18 In McKinney et at. v. Blankenship et al., — Tex. —, 282 S. W.
2d 691 (October 12, 1955) the Texas Supreme Court said (282
S. W. 2d at 294-295) : “At the threshold o f our considerations o f
the issues in this case we are met with the argument that since the
constitutional and statutory provisions requiring segregation in
Texas schools were not before the Supreme Court in the Brown
case they were not condemned and we should hold them valid and
enforceable. That proposition is so utterly without merit that we
overrule it without further discussion, except to say that clause 2
of Article V I of the Constitution of the United States declares:
‘This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof, * * * shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Con
trary notwithstanding.’ ” See, also, Leflar and Davis, “ Segrega
tion in the Public Schools— 1953,” 67 Harvard Law Rev. 377, 387
(1954).
“ In practical effect the Court retained jurisdiction not only in
the cases before the Court (being class actions) but in all similar
eases, to the end that the decision o f the Supreme Court might be
fully implemented. This, of course, follows the well known
maxim that equity will do justice, and not by halves.” (From
394702— 56------ 3
28
Plaintiffs are under a duty to obey the Constitution.
Const., Art. VI, cl. 2. They are bound by oath or
affirmation to support it, id., cl. 3, pursuant to which
federal10 and state* 19 20 statutes have been enacted; and
plaintiffs were fully mindful of their obligations.21
These principles are elementary. But we state
them here because they are at the root of this case
Memorandum Opinion on Final Hearing o f Judge Reeves in in
stant case (R. 49).
“ Even though the specific impact o f the 1954 decision [in the
School Segregation Gases] was directed at only five school dis
tricts, the Court couched its holding in terms of unmistakable
inclusiveness. The invalidity o f existing provisions in other
states was recognized in a variety of ways: In some states by
opinions of the state attorney general, in others by judicial rulings,
and in still others by reports o f advisory commissions appointed
to study the matter.” McKay, “ ‘With A ll Deliberate Speech A
Study o f School Desegregation,” 31 New York University Law Re
view 991,1039-1040 (1956). See also pp. 1084-1085.
19 Title 4, United States Code, Sec. 101. “ Oath by members o f
legislatures and officers. Every member of a State legislature,
and every executive and judicial officer of a State, shall, before
he proceeds to execute the duties of his office, take an oath in the
following form, to wit: ‘I, A B, do solemnly swear that I will
support the Constitution of the United States.’ ”
20 Ark. Stats., 1947, Sec. 80-505. “ Oath o f office.— Each school
director elected or appointed, shall within ten (10) days after
receiving notice o f his election or appointment subscribe to the
following oath:
‘I , --------- ----------- , do hereby solemnly swear or affirm, that I
will support the Constitution of the United States and the Con
stitution of the State of Arkansas, * *
21 “ The members of the Board were cognizant o f the national
constitutional provision which requires an oath to support the
Constitution of the United States on the part of all state officers
as well as others, and they, being state officers, had taken such
oath and felt the duty and obligation to obey such oath by making
an order desegregating the races in the public schools of Iloxie.”
(Judge Reeves’ Findings of Fact (R. 43).)
29
and because they lay the necessary predicate for the
federal right which plaintiffs assert.
In analyzing situations in other jurisdictions where
legislative action has been taken which would, if en
forced, frustrate the performance of duties imposed
by the Constitution, one commentator has recently
stated:22
* * * [IJn April of 1955, Governor Hugh
White of Mississippi signed into law a bill
which provides a fine and possible imprison
ment for whites who attend a state supported
school with Negroes. * * * In a similar move
the Georgia State Board of Education has or
dered that all teachers who support, condone
or agree to the teaching of mixed classes will
have their licenses revoked “ forever.”
In view of the National Supremacy Clause
(Article VI, clause 2) it is hard to conceive of
the Supreme Court’s upholding the conviction
or administrative punishment of a person by a
state for obeying a federal court order. These
efforts would also fall if justified under the
police power, since the classification both of
the offense and the people affected is clearly
opposed to current Supreme Court interpreta
tions of the meaning of the Fourteenth Amend
ment.
Obligated as plaintiffs are under the Fourteenth
Amendment to provide public education upon a non-
segregated basis, if public education is to be provided
at all, it follows as a necessary corollary that they have
22 Walter F. Murphy, “ Desegregation in Public Education—-A
Generation o f Future Litigation,” 15 Maryland Law Review 221,
234-235 (1955).
30
a federal right to be free from direct and calculated
interference with the performance of their Consti
tutional duty.
This federal right to be free from interference with
the performance of a Constitutional duty is funda
mental. It is inherent in the Constitution itself and
arises by clear and necessary implication from that
instrument. This basic right is no less effective or
real than it would be had it been specifically stated in
the Constitution. Obviously all derivative rights and
powers could not be thus set forth. “ It did not suit
the purposes of the people, in framing this great char
ter of our liberties, to provide for minute specifica
tions of its powers, or to declare the means by which
those powers should be carried into execution.” Mar
tin v. Hunter’s Lessee, 1 Wheat, 304, 326.23
23 In E x parte Yarbrough, 110 U. S. 651, in considering the
argument in effect that the federal government was without power
to protect federal elections from violence and corruption in the
absence o f some specific grant o f such power, the Court stated
(at p. 658) that “ The proposition * * * is supported by the old
argument often heard, often repeated, and in this court never
assented to, that when a question of the power of Congress arises
the advocate of the power must be able to place his finger on
words which expressly grant it. The brief o f counsel before
us, though directed to the authority o f that body to pass criminal
laws, uses the same language. Because there is no express [Court’s
emphasis] power to provide for preventing violence exercised on
the voter as a means o f controlling his vote, no such law can be
enacted. It destroys at one blow, in construing the Constitution
o f the United States, the doctrine universally applied to all in
struments of writing, that what is implied is as much a part of
the instrument as what is expressed. This principle, in its appli
cation to the Constitution o f the United States, more than to
almost any other writing, is a necessity, by reason o f the inherent
inability to put into words all derivative powers—a difficulty
31
In many cases the implied rights which have been
upheld by the courts have been far less important or
“ essential to the healthy organization of the govern
ment itself” (cf., Ex parte Yarbrough, 110 U. S. 651,
at 666) than the right against interference with obedi
ence to the Constitution here involved. Included
among such implied rights are the following: The
right to be protected against violence while in the
lawful custody of a federal officer (Logan v. United
States, 144 U. S. 263, 294—a right which the Court
stated “ does not depend upon any of the Amendments
to the Constitution, but arises out of the creation and
establishment of a national government, paramount
and supreme within its sphere of action” ) ; 24 the right
which the instrument itself recognizes by conferring on Congress
the authority to pass all laws necessary and proper to carry into
execution the powers expressly granted and all other powers
vested in the government or any branch o f it by the Constitution.
Article I, sec. 8, clause 18.”
See also, In re Neagle, 135 U. S. 1, where the Court said (at
59): “ In the view we take of the Constitution of the United
States, any obligation fairly and properly inferrible from that
instrument, or any duty of the marshal to be derived from the
general scope o f his duties under the laws of the United States,
is ‘a law’ within the meaning of this phrase. It would be a great
reproach to the system o f government of the United States, de
clared to be within its sphere sovereign and supreme, i f there is
to be found within the domain of its powers no means of pro
tecting the judges, in the conscientious and faithful discharge
o f their duties, from the malice and hatred o f those upon whom
their judgments may operate unfavorably.”
24 The right in the Logan case, supra, was thus found to be
“inherent in the constitutional establishment of the Federal Gov
ernment, without reference to any specific constitutional clause.”
(Note) “ Federal Prosecution of State Law Enforcement Officers
Under the Civil Rights Act,” 55 Yale Law Journal 576, at 581
(1946).
32
to inform a federal officer of a violation of the laws
(In re Quarles, 158 XL S. 532, 536) ; see also Motes v.
United States, 178 II. S. 458, 462-463,; Nicholson v.
United States, 79 F. 2d 387 (C. A. 8) ; Hawkins v.
State, 293 Fed. 586 (0 . A. 5) ; the right of the people
peaceably to assemble for the purpose of petitioning
Congress for a redress of grievances or for anything
else connected with the powers and duties of the na
tional government ( United States v. Gruikshank, 92
TJ. S. 542, which the Court held (at p. 552) was im
plied by the very idea of a government, republican in
form; see also Poive v. United States, 109 F. 2d 147,
151 (C. A. 5), cert, den., 309 U. S. 679); the right to
vote in federal elections (Ex parte Yarbrough, 110
U. S. 651) ; the right of a voter in a federal election
to have his ballot counted fairly (United States v.
Mosley, 238 U. S. 383; United States v. Classic, 313
IJ. S. 299; and United States v. Saylor, 322 U. S. 385) ;
the right to furnish military supplies to the federal
government for defense purposes (Anderson v. United
States, 269 Fed. 65 (C. A. 9), cert, den., 255 IJ. S.
576); the right of a witness to be protected in giving
testimony before a federal tribunal (Foss v. United
States, 266 Fed. 881 (C. A. 9 )) ; the right to enforce
a decree of a federal court by contempt proceedings
(United States v. Lancaster, 44 Fed. 885, 44 Fed. 896
(C. C. W. D. d a .) ; and the right to hold federal office
(McDonald v. United States, 9 F. 2d 506 (C. A. 8) ;
see also United States v. Patrick, 54 Fed. 338 (C. C.
M. D. Tenn.). See, generally, United Stales v. Moore,
129 Fed. 630, 632-633 (C. C. N. I). Ala.).
33
Threatened abridgment of the rights which the
courts held existed by implication in the Constitution
actually supported criminal prosecutions in most of
the foregoing cases, and not merely, as here, the rela
tively mild restraint of the injunctive process.
The existence of a Constitutional duty presupposes
a correlative Constitutional right in the person for
whom the duty is to be exercised.25 Thus in Logan v.
United States, 144 U. S. 263, the Supreme Court
upheld what is now Title 18, United States Code,
Section 241, as the basis for conviction of three men
charged with mob violence against prisoners in the
custody of a United States Marshal. The Court held
that the prisoners, who were awaiting trial for an
j offense against the United States, had a federal right
to be protected in their persons while in federal cus
tody. The Court said (144 U. S., at 284) that the
existence of the duty on the part of the government
to protect its prisoners “ implies a corresponding right
of the prisoners to be so protected.” The Court also
stated (at 285) :
The prisoners were in the exclusive custody
and control of the United States, under the pro
tection of the United States, and in the peace of
the United States. There was a co-extensive
duty on the part of the United States to protect
against lawless violence persons so within their
custody, control, protection and peace; and a
corresponding right of those persons, secured
by the Constitution and laws of the United
States, to be so protected by the United States.
25 See ZJllman v. United States, 350 U. S. 422,427n.
34
I f the officers of the United States, charged
with the performance of the duty, in behalf of
the United States, of affording that protection
and securing that right, neglected or violated
their duty, the prisoners were not the less
under the shield and panoply of the United
States.26
It is no less true, of course, that the existence of a
Constitutional duty also presupposes a correlative
right in the person upon whom the duty is imposed to
be free from direct interference with its performance.
In Tennessee v. Davis, 100 U. S. 257, 264 in which
trial of a federal officer for an act performed in the
line of duty was held removable from a state to a
federal court, the Supreme Court quoted Chief Jus
tice Marshall in Osborn v. The Bank of the United
States, 9 Wheat. 738, as follows:
It is not unusual for a legislative act to in
volve consequences which are not expressed.
An officer, for example, is ordered to arrest an
individual. It is not necessary, nor is it usual,
to say that he shall not be punished for obeying
this order. His security is implied in the order
itself. It is no unusual thing for an act of
26 “ * * * [W]henever a right is guaranteed by the Constitu
tion of the United States, Congress has the power to provide for
its enforcement, either by implication arising from the correlative
duty o f government to protect, wherever a right to the citizen is
conferred, or under the general power (contained in Art. 1, sec. 8,
par. 18) ‘to make all laws necessary and proper for carrying into
execution the foregoing powers and all other powers vested by this
Constitution in the government of the United States, or any de
partment or officer thereof.’ ” (Justice Bradley, in United States
v. Oruikshank, Case No. 14,897,25 Fed. Cas. 707,709 (C. C. D. La.
1874), aff’d., 92 U. S. 542.)
35
Congress to imply, without expressing, this
very exemption from State control. . . . The
collectors of the revenue, the carriers of the
mail, the mint establishment, and all those in
stitutions which are public in their nature, are
examples in point. It has never been doubted
that all who are employed in them are protected
tvhile in the line of their duty; and yet tins pro
tection is not expressed in any act of Congress.
It is incidental to, and is implied in, the several
acts by which those institutions are created;
and is secured to the individuals employed in
them by the judicial power alone; that is, the
judicial power is the instrument employed by
the government in administering this security.
See also, In re Neagle, 135 U. S. 1, 69.
In this connection, the language of Judge Thomas
Jones in the related cases of Ex parte Riggins, 134
Fed. 404 (C. C. N. D. Ala.), and United States v.
Powell, 151 Fed. 648 (C. C. N. D. Ala.), is very much
to the point as applied to the facts of the case at
bar, involving as it does direct action against state
officers in the performance of their Constitutional
duties. (W e do not, of course, rely upon Judge
Jones’ rationale as applied to the facts of the Riggins
and Powell cases themselves as it was based upon the
assumption—untenable as applied to those facts—
that private persons were legally capable of Four
teenth Amendment right deprivations.)27
27 Powell and Riggins were jointly indicted under what is now
Title 18, United States Code, Section 241, to injure, etc., a Negro
whom they and others had taken from the custody o f state officers
and lynched. The defendants were charged with conspiring to
deprive the victim o f the right to due process of law at the hands
36
In Ex parte Riggins, supra, at 411, it is
stated:
* * * The national government, having a
direct interest in the performance of the duty
here, can protect officers who are charged with
it. The right to protect the officer in discharge
of the duty involves the power to punish pri
vate individuals who assail the officer to
prevent his performing it. The general gov
ernment, certainly, has as direct and deep an
interest in securing the successful performance
of the duty to furnish due process of law,
which is required of the state to secure the
enjoyment of fundamental rights of citizens of
the United States, as it has in the performance
of duties, by state officers under the state law,
affecting the election of congressmen and pres-
o f the state. The indictment did not charge an offense relating to
a conspiracy to injure, etc., the officers who had custody of the
victim. A severance was ordered. Riggins sued out a writ of
habeas corpus on the ground that the indictment charged no
federal offense. The court (Judge Jones) discharged the writ,
134 Fed. 404. Riggins appealed to the Supreme Court, which
quashed the writ and dismissed the application for it without
prejudice on the ground that habeas corpus was not the proper
remedy. Riggins v. United States, 199 U. S. 547. Powell’s case
was continued from term to term pending disposition by the
Supreme Court of a case thought to involve similar issues, and
following the Supreme Court’s disposition o f the latter case
(Hodges v. United States, 203 U. S. 1), Judge Jones wrote a long
opinion in United States v. Powell, 151 Fed. 648, in which he ex
panded upon and reiterated his holding in the Riggins case, but,
feeling bound by the Hodges decision, concluded by sustaining
the demurrer on the ground that Fourteenth Amendment rights
cannot be subject to deprivation by private individuals, but only
by state officers. The Supreme Court thereafter affirmed his
action in a per curiam opinion based upon the Hodges opinion.
United States v. Powell, 212 U. S. 564.
37
idential electors. It has also been held in
numerous cases that the function which a party
is performing determines whether Congress
has the right to protect him in performing a
duty enjoined or in the exercise of a right or
privilege. A state officer in attempting to
afford due process in a particular case is dis
charging a duty imposed upon him, as the
representative of the state, by the Constitution
of the United States, for the benefit of its
citizens. The prisoner also, while confined and
being protected against lawless violence, that
he may have a trial according to the law of the
land, is in the exercise or enjoyment of a right
given him by the Constitution.
And in United States v. Powell, supra, at 659-660,
the court said:
The power of Congress to legislate against
private lawlessness, in order to protect the
discharge of a duty the Constitution enjoins
upon an officer of the state, even when Con
gress is given no power to “ enforce it,” is il
lustrated by sections 5278, 5279, of the Revised
Statutes [U. S. Comp. St. 1901, p. 3597], which
have stood unchallenged on our statute books
for more than a century. Lascelles v. Georgia,
148 U. S. 537, 13 Sup. Ct. 687, 37 L. Ed. 549;
Robb v. Connolly, 111 IT. S. 635, 4 Sup. Ct. 544,
28 L. Ed. 542. Section 2 of article 4 of the
Constitution commands the delivery of fugi
tives from justice upon the demand of the state
from whence they fled. Congress is given no
power to enforce the command, and it “ im
poses only a moral duty.” The agent of the
demanding state, who receives the prisoner,
38
the Supreme Court holds, is a state officer
merely. Yet, when a prisoner is surrendered to
such agent to be returned to the demanding
state, Congress punishes individuals who ob
struct the discharge of the duty. The officer,
under the fourteenth amendment, owes a duty
to the United States, and may be protected in
his 'efforts to discharge it, as well as punished
by Congress for his dereliction in the perform
ance of it.
In the case of In re Coy, 127 U. S. 731, the Court
upheld convictions of private persons and state elec
tion inspectors who interfered with the duty of the
election officials to safeguard election documents used
in an election at which federal and state officers were
elected, even though there was no allegation that the
defendants intended to affect the election of the Mem
bers of Congress. One part of the indictment, which
was upheld by the Court, alleged a conspiracy
* * * to interfere with the officers of the elec
tion in the discharge of their duties; that they
did by unlawful means induce them to violate
and refuse to comply with their duty in regard
to the custody and safekeeping of the election
returns, and that they persuaded and induced
these officers, or attempted so to do, to omit
their duty in regard thereto. (127 U. S., at
750.)
Ex parte Siebold, 100 U. S. 371, involved a some
what similar situation. In that case the Court upheld
the conviction of state election officials for fraudulent
conduct in violation of state law in an election where
39
federal and state officers were involved. The Court
said (100 U. S., at 387) :
* * * While the State will retain the power of
enforcing such of its own regulations as are
not superseded by those adopted by Congress,
it cannot be disputed that if Congress has
power to make regulations it must have the
.. • power to enforce them, not only by punishing
the delinquency of officers appointed by the
United States, but by restraining and, punish
ing those who attempt to interfere with them in
the performance of their duties; * * *
In the case at bar there would seem to be no ques
tion that plaintiff school board members may be pro
tected by a federal injunction in their efforts to dis
charge their duty under the Fourteenth Amendment.
In addition to the foregoing considerations, from
which it must be concluded that state officers and
others will be protected in the performance of duties
imposed by the Constitution, note should be taken of
the fact that duties have often been imposed upon
state officers by federal statutes.28 This Court has
listed many such instances of the vesting of federal
powers and duties in state courts. See Levin v. United
States, 128 Fed. 826, at 830 (C. A. 8).29 That the
duties thus imposed are binding has been definitively
answered by the Supreme Court in Testa v. Katt,
330 U. S. 386, by its holding that a Rhode Island state
28 For the Constitution “ and the, laws of the United States made
in pursuance thereof” are the supreme law o f the land. Art. VI,
cl. 2.
29 See, also, Warren, “ Federal Criminal Laws and the State
Courts,” 38 Harvard Law Review 544 (1925).
40
court was compelled to entertain a suit brought to
recover treble damages for violation of price regula
tions, even though the action was deemed penal in
nature. The Supreme Court had previously held in
the Second Employers’ Liability Cases, 223 IT. S. 1.
58, that “ the existence of the jurisdiction creates an
implication of duty to exercise it.” Refusal by a com
petent state court to hear a remedial action arising
under federal law was therefore held to be an uncon
stitutional discrimination against a federally created
right in McKnett v. St. Louis & S. F. By., 292 IT. S.
230. But, even going beyond this concept, the Court
in the Testa case assumed that the act under consid
eration was penal and not just remedial in nature,
and still left no doubt about the state court’s obliga
tions to enforce it. These decisions indicate the great
length to which the Court has gone in making clear
ihe duties, even of state courts, to carry out obliga
tions imposed by federal law. Such being the case,
it would be hard to believe that the federal courts,
where called upon to do so, would not be equally
vigilant to make federal Constitutional or statutory
duties meaningful by preventing interference with
those charged with their execution and performance.
The words of Justice Story in Prigg v. Pennsylvania,
16 Pet. (41 IT. S.) 536, 614-615, apply with equal
cogency here:
The fundamental principle, applicable to all
eases of this sort, would seem to be, that where
the end is required, the means are given; and
where the duty is enjoined, the ability to per
form it is contemplated to exist, on the part of
the functionaries to whom it is intrusted.
41
III
The statutory provision for damages for conspiring to prevent
State officers from securing equal protection of the laws,
and other statutory provisions, provide a standard to an
equity court in restraining such conduct
It is clear from the facts as found by the court be
low that defendants acted as they did for the purpose
of preventing the plaintiff school board from con
tinuing its desegregated school program. It was found
by the court, for example, that defendants’ conduct at
the August 3, 1955, mass meeting “ revealed a concert
of action and a general agreement on their part to
compel, by force and intimidation, a rescission of the
order of the Board of Directors in integrating the
races in the schools. * * * [T]he words used, and the
very nature of the speeches, would have and did have
the effect, not only to encourage violence but to intimi
date those who are charged with the responsibility
of integrating the races * * (R. 43-44.) “ Fol
lowing the first mass meeting and in between and after
the others, the defendants, both in meetings with mem
bers of the Board of Directors and the individual
members thereof, and by telephone calls, and by
threats to throw a picket line about the schools, and
by acts of terrorism so far as the Superintendent of
Schools was concerned, so intimidated the parents
and patrons of the schools, as well as the Board of
Directors and the Superintendent, as to force a sus
pension of school activities” (B. 44). These and
other facts found by the court warranted, among
others, the conclusions of law that “ the defendants,
having acted in concert for the common purpose of
42
compelling a rescission of the integration order of
the Board of Directors of Hoxie School District No,
46, were conspirators, and the acts of each conspirator
were binding upon all the others.” (R. 45.) And
“ All of the defendants in this case had joined in the
common conspiracy, from which none of the defend
ants has to date withdrawn, for the express purpose
of forcing the plaintiffs to return to segregation in
the Hoxie schools. To effect this conspiracy the de
fendants have resorted to threats, violence and intimi
dations against plaintiffs and those who uphold their
actions. Defendants seek to prevent plaintiffs from
exercising their civil right to secure equal protection
of the laws to all citizens within the school district.
Defendants have challenged the legality of the action
of plaintiffs in establishing integrated schools.”
(R. 38.)
The conduct of the defendants briefly described
above was not in the nature of merely private tortious
action: it was action directed to prevent the plaintiff
school board members from carrying out their duty as
state officials to put into effect a desegregation pro
gram if public education was going to be continued.
It was deliberately aimed at preventing the school
board from affording to all the children within the
school district the equal protection of the laws.293 Such
action by the defendants thus fell squarely within the
area of behavior which Congress proscribed and for
which it gave a civil action in damages, when it en-
29a Cf., Shelley v. Kraemer, 334 IT. S. 1,22, where the Court said:
“The Constitution confers upon no individual the right to demand
action by the State which results in the denial o f equal protection
o f the laws.”
43
acted Section 1985 (3 )30 of Title 42, United States
Code, and which in pertinent part reads as follows:
S ectio n 1985. Conspiracy to interfere with
civil rights— (3) Depriving persons of rights or
privileges.
* * * * *
I f two or more persons in any State or Ter
ritory conspire * * * for the purpose of pre
venting or hindering the constituted authorities
of any State or Territory from giving or secu
ring to all persons within such State or Terri
tory the equal protection of the laws; * * * in
any case of conspiracy set forth in this section,
if one or more persons engaged therein do
* * * any act in furtherance of the object of
such conspiracy, whereby another is injured in
his person or property, or deprived of having
and exercising any right or privilege of a citi
zen of the United States, the party so injured
or deprived may have an action for the recovery
of damages, occasioned by such injury or de
privation, against any one or more of the
conspirators.
We are familiar with no reported case under the
statute where private individuals have sought by di-
30 There is some apparent confusion in this case concerning
plaintiffs’ assertion o f jurisdiction in so far as Title 42, United
States Code, Section 1985 (3) is concerned. The Complaint,
doubtless due to a typographical error, referred to Section 1985
(2) (R. 2) (conspiracy to obstruct justice), which of course de
fendants’ conduct giving rise to this litigation did not involve.
Defendants are unquestionably correct in assuming as they do
that Section 1985 (3) is the provision invoked by plaintiffs, not
Section 1985 (2). See Defts.’ Br. 11-12, 22, 24-25, 28, 31-35.
(The reference at p. 11 of Defts.’ Br. to “ 1885 (3 )” should, of
course, be to 1985 (3).)
394702— 56 4
44
rect action against state officials to frustrate per
formance of their Constitutional duty to give and
secure the equal protection of the laws.31 But that
such conduct is actionable under the statute was made
clear in the recent case of Collins v. Hardyman, 341
XT. S. 651,32 when the Court stressed (at p. 661) that
there was “ not the slightest allegation” that the de
fendants in that case “ were conscious of or trying to
influence the law or were endeavoring to obstruct or
interfere with it” ; and the Court also emphasized (at
31 The eases relied upon by defendants (Defts.’ Br. 32-34) did
not arise under the part of the statute under consideration here.
All those cases arose under the part o f Section 1985 (3) dealing
with a conspiracy to deprive persons o f the equal protection of
the laws, etc., which is not at issue here.
32 In this case the plaintiffs were members of a voluntary asso
ciation which planned a public meeting to oppose the Marshall
Plan and to formulate a resolution to be forwarded to appropriate
federal officials. The complaint alleged that the defendants, who
were private individuals, conspired to prevent the meeting by
proceeding to the meeting place and by force and threats of force
assaulting and intimidating those present, thereby preventing the
meeting from taking place. Damages were claimed under what
is now Title 42, United States Code, Section 1985 (3). The
Supreme Court, three Justices dissenting, reversed the determi
nation by the Court o f Appeals that a cause o f action had been
stated in the complaint, in effect because a conspiracy by private
individuals against private individuals could not be for the pur
pose o f depriving persons of equal privileges or immunities under
the law.
That a conspiracy by private individuals might be of sufficient
magnitude to violate rights secured by what is now 42 U. S. C. A.
Sec. 1985 (3) does seem to be recognized in Collins v. Ilardyman,
341 U. S. 651, 662. Whether or not the Court would necessarily
confine itself in such an event to what has been described as “ the
extreme case” it chose for an example, we cannot say. Cf., “ The
Proper Scope o f the Civil Bights Act,” (Note) 66 Harvard Law
Review 1285, 1287-1288 (n.) (1953).
45
p. 660) that there was no claim there made that any
allegation of the complaint concerned the preventing
or hindering of the constituted authorities from giv
ing or securing to all persons the equal protection of
the laws, or certain other provisions of the statute.33
In the case at bar, however, it was the very awareness
of the Supreme Court’s ruling in the School Segre
gation Cases and of the school board’s compliance
therewith that made the defendants “ conscious of the
law” and that prompted their excesses “ to obstruct or
interfere with it.”
Now this is not an action for damages under the
pertinent provision of the statute which we are consid
ering. We assume that injured plantiffs—be they a
school board doing its best to obey the Supreme Court
or children excluded from school for racial reasons
because of interference with that school board—could
sue for damages thereunder if it was felt that a money
judgment could provide an adequate type of relief.
But this is a suit by the school board primarily for
injunctive relief. And it is well established that
statutes not themselves providing for the remedy
sought nevertheless afford a basis for such remedy
both as (1) creating or re-enforcing the right asserted
by the plantiffs, as well as (2) manifesting a broad
legislative purpose to meet the proscribed conduct at
which the statute aims which will afford a guide to
the courts.
33 “ The section [1985 (3 )] covers other types o f conspiracies,
but there was no claim that the case was within any other clause.”
Discussion of Collins v. Rardyman, in “ The Supreme Court, 1950
Term,” 65 Harvard Law Review 107, 141 n. (1951).
46
The first principle received very recent re-affirma
tion in the case of Fitzgerald v. Pan American World
Airways, 229 F. 2d 499 (C. A. 2, 1956). In that case
plaintiffs were, for racial reasons, denied passage on
an airplane operated by a common carrier subject to
the provision of the Civil Aeronautics Act, 49 U. S. C.
Sec. 401 et seq. Part of the Act (Sec. 484 (b )) pro
vided against unjust discrimination by an air carrier,
which another provision (Sec. 622 (a )) made it a
crime knowingly to violate.
The Court of Appeals, which reversed the dismissal
of the complaint for want of federal jurisdiction, said
(229 P. 2d, at 501) :
Section 622 (a) makes it a federal crime to
violate, inter alia, Section 484 (b). The latter
section is for the benefit of persons, including
passengers, using the facilities of air carriers.
Consequently, by implication, its violation
creates an actionable civil right for the vindica
tion of which a civil action may be maintained
by any such person who has been harmed by the
violation. As we said in Reitmeister v. Reit-
meister, 2 Cir., 162 F. 2d 691, 694: “ Although
the Act does not expressly create any civil lia
bility, we can see no reason why the situation
is not within the doctrine which, in the absence
of contrary implications, construes a criminal
statute, enacted for the protection of a speci
fied class, as creating a civil right in members
of the class, although the only express sanctions
are criminal.” See also Fischman v. Raytheon
Mfg. Co., 2 Cir., 188 F. 2d 783, 787; Goldstein
v. Groesbeck, 2 Cir., 142 F. 2d 422, 427, 154
A. L. R. 1285; Restatement of Torts, Section
47
286; Morris, The Relation of Criminal Statutes
to Tort Liability, 46 Harv. L. Rev. (1933) 453;
Lowndes, Civil Liability Created by Criminal
Legislation, 16 Mimi. L. Rev. (1932) 361.
Against the contention that the legislature did not
create a right but merely imposed a higher standard
of care in suits based upon a state common-law right,
the Court said (299 P. 2d, at 501-502) :
That is not true of the Act here involved.
We think it created a new federal right. Al
though a right created by a federal statute
covers the same ground as a right already ex
isting under the common law of the states and
territories, a suit based on that federal statute
is one “ arising under” a law of the United
States, so that a federal district court has juris
diction under 28 U. S. C. § 1331. See, e. g.,
Bell v. Hood, 327 U. S. 678, 66 S. Ct. 773, 90
L. Ed. 939; Tunstall v. Brotherhood of Locomo
tive Firemen d? Enginemen, 323 U. S. 210, 213,
65 S. Ct. 235, 89 L. Ed. 187; Reitmeister v.
Reitmeister, 2 Cir., 162 P. 2d 691, 694; Note,
48 Col. L. Rev. (1948) 1090. No federal com
mon law of torts exists; when Congress enacts
legislation rendering it tortious to do what is
already a state common-law tort, a suit based
on that legislation is within 28 U. S. C. § 1331.
In Reitmeister v. Reitmeister, 162 P. 2d 691 (C. A.
2), the court, per Judge Learned Hand, said (162 P.
2d, at 694) :
The first questions are whether the Communi
cations Act of 1934, 47 U. S. C. A. § 151 et seq.,
imposes a civil, as well as a criminal, liability
upon anyone who “ publishes” a telephone mes
48
sage, and whether, if so, the District Court had
jurisdiction over the action. Although the Act
does not expressly create any civil liability, we
can see no reason why the situation is not
within the doctrine which, in the absence of
contrary implications, construes a criminal
statute, enacted for the protection of a speci
fied class, as creating a civil right in members
of the class, although the only express sanc
tions are criminal. In New field v. Ryan, the
Fifth Circuit has already implied as much as
to § 605; and we too have so suggested ourselves
in United States v. Goldstein. That the Dis
trict Court had jurisdiction, if there was a civil
right, is too plain for debate.
In the foregoing cases, statutes enacted for the bene
fit of a certain class were thus held to afford a basis
for damages though the statutes themselves made no
such provision. A fortiori, it would seem to follow
that such statutes would provide an adequate basis
for injunctive relief. And the case of Roosevelt Field
v. Town of North Hempstead, 84 Fed. Supp. 456, 459
(D. C. N. Y .), implies existence of an equitable
remedy in just such a ease. See Hart and Wechsler,
The Federal Courts and the Federal System (1953),
p. 796. Moreover, federal courts under Title 28,
United States Code, Sec. 1651,34 have adequate author
34Title 28, United States Code, Section 1651: “ (a) The Su
preme Court and all courts established by Act o f Congress may
issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice
or judge of a court which has jurisdiction. (June 25, 1948, eh.
646, § 1, 62 Stat. 944; May 24,1949, eh. 139, § 90, 63 Stat. 102.)”
49
ity to issue neeessary writs protective of all federal
rights. If for some conceivable reason those did not
suffice and further remedies were needed, the provi
sions of Arkansas State law themselves could be in
voked, as provided by Title 42, United States Code,
Sec. 1988.33 Certainly in a ease of this sort the maxim
applies that equity will not suffer a wrong without a
remedy. “ Traditionally, equity has been character
ized by a practical flexibility in shaping its reme
dies * * Brown v. Board of Education, 349 U. S.
294, at 300. As was also made clear in Bell v. Hood
(327 U. S. at 684) : “ Moreover, where federally pro
tected rights have been invaded, it has been the rule
from the beginning that courts will be alert to adjust
their remedies so as to grant the necessary relief.
And it is also well settled that where legal rights have
been invaded, and a federal statute provides for a
general right to sue for such invasion, federal courts 35
35 Title 42, United States Code, Section 1988: “ The jurisdiction
in civil and criminal matters conferred on the district courts by
the provisions o f this chapter and Title 18, for the protection of
all persons in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in conformity with
the Laws o f the United States, so far as such laws are suitable to
carry the same into effect; but in all cases where they are not
adapted to the object, or are deficient in the provisions necessary
to furnish suitable remedies and punish offenses against law, the
common law, as modified and changed by the constitution and
statutes of the State wherein the court having jurisdiction of such
civil or criminal cause is held, so far as the same is not inconsistent
with the Constitution and laws of the United States, shall be ex
tended to and govern the said courts in the trial and disposition
of the cause, and, if it is of a criminal nature, in the infliction of
punishment on the party found guilty. (E. S. § 722.)”
50
may use any available remedy to make good the wrong
done.”
In addition to the foregoing considerations, courts
will look to statutes themselves as affording a basis
for relief in situations where they are not directly at
issue in order to effectuate the underlying legislative
purpose behind their enactment. As pointed out in the
opinion of Frank, J., in SUfka v. Johnson, 161 F. 2d
467, 470 (C. A. 2) :
* * * No matter what may be its early history,
something like the doctrine of “ the equity of a
statute” (i. e., the doctrine that the courts should
somewhat liberally apply the policy expressed
in legislation to meet the “ mischief” at which
it aims) has been given considerable vitality in
recent years.
Justice Cardozo said in Van Beech v. Sabine Tow
ing Go., 300 XL S. 342, 350-351:
* * * It would be a misfortune if a narrow or
grudging process of construction were to exem
plify and perpetuate the very evils to be reme
died. There are times when uncertain words
are to be wrought into consistency and unity
with a legislative policy which is itself a source
of law, a new generative impulse transmitted to
the legal system.
See, also, Gooch v. Oregon Short Line B. Co., 258
IT. S. 22, 24; Johnson v. TJ. S., 163 Fed. 30, 32 (C. A.
1) ; Keifer & Keifer v. B. F. G., 306 U. S. 381, 391
and note 4; United States v. Hutcheson, 312 IT. S. 219,
235; South & Central American Commercial Co. v.
Panama B. Co., 237 N. Y. 287, 291, 142 N. E. 666;
51
The Arizona v. Anelich, 298 U. S. 110, 123; Warner v.
Goltra, 293 TJ. S. 155, 157-159; Stone, “ The Common
Law in the United States,” 50 Harvard Law Review
4, 13-14 (1936) ; James M. Landis, “ Statutes and the
Sources of Law,” in Harvard Legal Essays (1934),
p. 213 et seq.
What we have said herein about the pertinent part
of Title 42, United States Code, Sec. 1985 (3) applies
also to the other Civil Rights statutes which plaintiffs
have invoked as the basis of jurisdiction in this case
(R. 2),33 except that Section 1985 (3) even more
clearly than the others fits the facts of this case. But
all the Civil Rights statutes relied upon, in the ag
gregate, evidence a Congressional intent, made judi
cially manifest in the School Segregation Cases, to
vouchsafe the rights asserted by plaintiffs. It may
be said of this legislation as was observed with respect
to that involved in United States v. Hutcheson, supra,
at 235, “ Such legislation must not be read in a spirit
of mutilating narrowness,” but should be given “ hos
pitable scope.” Certainly the “ color of law” statutes,
Title 18, United States Code, Section 242 (criminal) 37
and Title 42, United States Code, Section 1983 36 37
36 The reference to Title 16 in the Record should be to Title 18.
37 Title 18, United States Code, Section 242: “Whoever, under
color of any law, statute, ordinance, regulation, or custom, wil
fully subjects any inhabitant of any State, Territory, or District
to the deprivation o f any rights, privileges, or immunities secured
or protected by the Constitution or laws of the United States,
or to different punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens, shall be fined not
more than $1,000 or imprisoned not more than one year, or both.”
52
(civil) 38 import rights upon the basis of which in
junctive relief can be granted, just as the statutes
referred to in Fitzgerald v. Pan American World
Airways, Beitmeister v. Reitmeister, both supra, and
the cases cited therein, gave rise to rights upon the
basis of which damages were allowed. I f plaintiffs
without legal excuse failed to accord all students their
rights, the plaintiffs’ omissions, as Judge Reeves said
(R. 50), “ would, in effect, be a deprivation of rights
under color of law.”
IV
The identity o f interest between the school board and the
school children is sufficiently close so as to permit the school
board to assert the rights o f the school children under the
Fourteenth Amendment in a federal equitable proceeding
to restrain the illegal conduct. Private action against a
school board to prevent it from affording equal protection
o f the laws to the school children would result in a depriva
tion o f the school children’s rights under the Fourteenth
Amendment
In support of the plaintiffs’ contentions that they
are entitled to equitable relief in the case at bar, the
Government relies primarily upon the fundamental
right of the plaintiffs to be free from interference
with duties which are imposed upon them by the Con
stitution. That inherent right is of itself thoroughly
38 Title 42, United States Code, Section 1983: “ Every person
who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory, subjects, or causes to be sub
jected, any citizen o f the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.” (R. S. § 19T9.)
53
sufficient to support the jurisdiction of the court be
low to issue an injunction in favor of the plaintiffs.
But the school board also has a standing under the
Fourteenth Amendment itself in the light of the facts
presented by this case. It would be unrealistic for a
court of equity to disregard the close relationship
between the school board and the pupils, and the
court below was properly aware of this close relation
ship when it stressed in its Memorandum Opinion on
Final Hearing:
* * * I f the defendants in fact conspired
to deprive (among others) Negro pupils of
their constitutional rights, then it would seem
proper for the plaintiffs, so closely related as
they were to the victims in this case, to bring
a restraining suit. * * * (R. 50.)
The Government does not question the principle
enunciated in such decisions as the Civil Bights Cases,
109 XL S. 3, United States v. Cruikshank, 92 U. S.
542, and see Shelley v. Kraemer, 334 U . S. 1, 13, relied
upon by defendants (Defts.’ Br., 22-31) that the Four
teenth Amendment applies only to state action.39 But
39 The principle is well stated as follows: “Under state law,
every person has certain rights of liberty and property which he
can vindicate in state courts against hostile action by private in
dividuals. But these rights are not conferred by the Fourteenth
Amendment. That Amendment confers only a right not to have
the state ‘impair,5 or ‘deprive of,’ or ‘abrogate,’ or ‘deny,’ or ‘de
stroy,’ or ‘injure’ these pre-existing state-given rights. With or
without the Amendment, private individuals are thought to be
incapable of doing any o f these things to rights o f liberty or
54
those decisions and the firmly imbedded principle to
which they gave rise all involved action by private
persons against private persons. This case involves
action by private persons against state officers; and
the distinction cannot be ignored in this equitable pro
ceeding, for the realities of this case are that the school
board is in loco parentis of the children whose rights
are at stake, and if defendants’ illegal conduct suc
ceeds in coercing the school board to rescind its de
segregation order such rescission can be accomplished
only through “ state action.” We grant that the duty
of a school board administering public education to
afford school children the equal protection of the laws
and the correlative right to be free from interference
with its performance, like the protection of the right
to vote in a federal election, “ does not arise solely
from the interest of the party concerned, but from
the necessity of the government itself.” (Cf., Ex
parte Yarbrough, 110 U. S. 651, 662.) Nevertheless
in a sense that vital governmental function can hardly
be considered apart from the rights of its bene
ficiaries—here the school children. So while the
right of the plaintiff school board members is in one
sense different from and even superior to that of
the school children (involving as it does the very
function of government), it is also in another sense
intimately identified with the right of the children
themselves.
property or equal protection; hence, while they might violate or
interfere with the enjoyment o f these state-given rights, their
doing so would not violate the Amendment. The state-given
rights, though violated, would themselves ‘remain in full force.’ ”
Robert L. Hale, Freedom Through Law (1952), p. 321.
55
This concept is by no means unfamiliar Constitu
tional doctrine. Though—as a generalization-—it is
true, as defendants maintain (Defts.’ Br. 13-14) that
the right to equal protection is a “ personal” right
of individuals (see McCabe v. Atchison T. and S. F.
E. E., 235 U. S. 151, 161-162; Sweatt v. Painter, 339
U. S. 629, 635), this is “ only a rule o f practice”
(.Barrows v. Jackson, 346 IT. S. 249, 257), which will
not be followed where the identity of interest be
tween the party asserting the right is sufficiently close
to that of the party in whose favor the right directly
exists.
In the Barrows case, supra, the Court refused to
permit enforcement of a claim for damages for breach
of a restrictive covenant against one who had con
veyed land to a non-Caucasian in violation of his
contract. Though the constitutional right of no as
certainable individual would have been infringed by
enforcement of the claim, the Court held that enforce
ment would deny equal protection of the laws to
“ particular non-Caucasian would-be users” (346
U. S., at 260), and that the defendant had standing
to raise the defense that judicial enforcement of the
covenant directed against non-Caucasians violated the
Equal Protection Clause of the Fourteenth Amend
ment, even though the defendant himself was not a
member of the racial group discriminated against
under the covenant. In Pierce v. Society of Sisters,
268 IT. S. 510, private schools were held to have such
an interest in possible patrons as to permit them to
question the validity of a statute regulating the right
of parents to control the education of their children.
56
No parent to whom the statute applied was before the
court. In Buchanan v. Warley, 245 U. S. 60, the
vendor in a contract for the sale of real property was
allowed to contest the validity of an ordinance limit
ing the vendee’s use thereof where the vendee’s prom
ise was conditioned on being permitted to use the
property in a manner prohibited by the ordinance.
In Truax v. Raich, 239 U. S. 33, an employee was held
to have such an interest in the freedom of his em
ployer to exercise his judgment in matters of employ
ment without illegal interference or compulsion as to
be able to question the constitutionality of a statute
regulating employers whose enforcement would force
the discharge of the employee even under a contract
terminable at will. And in Columbia Broadcasting
System v. United States, 316 U. S. 407, 422-423, the
Federal Communications Act was interpreted to give
plaintiff standing to assert a third party’s rights un
der the Act.
These principles are of particular relevance to the
case at bar, where the plaintiffs sought by resorting to
compulsion against the school board to prevent the
children from enjoying their right to equal protection
of the laws at its hands. An equity court will be
particularly vigilant to see that such subterfuge does
not succeed.
These considerations fully warranted the inclusion
by Judge Reeves of the following among the Conclu
sions of Law in this case:
* * * [T]he duties of the Board of Directors
were so interwoven and interlocked with the
rights and privileges of the colored pupils of
57
the district as to bring the case within the pro
visions of the Fourteenth Amendment as inter
preted by the Supreme Court. (R. 45.)
Who is better able to “ insure the adequate repre
sentation of all” 40 than the school board itself? This
litigation has been described as “ a proceeding thus
far unique” 41 in that a school board has come for
ward to assert its rights and the rights of the school
children within its district. Narrow considerations
of party and standing should not defeat its efforts in
an equity court, which should be guided by the gen
eral equity principle that wherever a right exists its
violation will be prohibited unless considerations of
policy or expediency forbid a resort to this prohibi
tive remedy. 4 Pomeroy, Eq. Juris. (5th ed.) 934,
935.
But defendants contend (Dcfts.’ Br. 12, et seq.)
that even if the Negro children were the plaintiffs
they would be unable to proceed in federal court
aa)ginst them because the defendants are private indi
viduals and thus incapable of acting under color of law.42
Therefore, they in effect argue, plaintiffs could not
act in their behalf even in a representative capacity.
The argument would be valid and the cases cited by
40 Cf., Fed. R. Civ. P.23 (a).
41 McKay, “ ‘With A ll Deliberate Speed’ : A Study of School
Desegregation,” 31 New York University Law Review 991, 1012
(1956).
42 But prosecutions against private persons have been upheld
under the “color of law” statute, Title 18, United States Code,
Section 242, for aiding and abetting officers {Koehler v. United
States, 189 F, 2d 711 (C. A. 5), cert, den., 342 U. S. 852); and
58
defendants (Defts.’ Br. 21-31) would be in point were
the plaintiffs, too, just private individuals. But their
being state officers puts the case in a different light,
and the illegal pressure upon plaintiffs imports state
action, to which consideration we now turn.
Compulsion against the school board by private
individuals sufficiently lent “ color of law” to the
denial and threatened denial of the children’s rights
as to supply the necessary element of state action
under the Fourteenth Amendment.43 Cf., Williams
through the combination o f Section 242 and the general con
spiracy statute (Title 18, United States Code, Section 371), the
conviction o f private persons who conspired with state officials
has been upheld. Brown v. United States, 204 F. 2d 247, 249
(C. A. 6 ); Culp v. United States, 131 F. 2d 93, 98-99 (C. A. 8 );
United States v. Trienoeiler, 52 Fed. Supp. 4 (E. D. 111.). See
“Legal Sanctions to Enforce Desegregation in the Public Schools:
The Contempt Power and the Civil Eights Acts,” 65 Yale Law
Journal 630, 649 (1956).
43 The school board has in effect made the administrative de
termination that there were no administrative obstacles to the
integration o f but 25 Negro school children with about forty times
that number of white school children. (E. 31.) For it to reverse
its position now, ostensibly upon the basis that an administrative
obstacle existed where none was present before, would raise a
serious question o f “ wilfulness” under 18 U. S. C. 242. See Screws
v. United States, 325 IT. S. 91, and Williams v. United States, 341
U. S. 97. “ * * * [I ]n cases of deliberately continued school
segregation this requirement of specific intent may well be satis
fied. Once any scheme for continuing segregation has been defi
nitely held invalid (or is so shallow that it makes no colorable
claim of validity), any school official who continues such evasion
seems clearly to be acting wilfully in that course o f conduct.”
McKay, “ ‘With A ll Deliberate Speed’ : A Study of School De
segregation,” 31 New York University Law Keview 992, 1072
(1956). Among the Conclusions of Law proposed by plaintiffs
and adopted by the court below (K. 45) is the following: “After
such [administrative] obstacles were in fact removed, all o f the
59
v. United States, 341 U. S. 97, 100, where a “ sem
blance of policeman’s power” was held sufficient to
satisfy the “ color of law7” requirements of the Civil
Eights Statute (Title 18, United States Code, Sec.
242.) See also Terry v. Adams, 345 U. S. 461. There
an all-white association regularly held its own elec
tion some weeks in advance of the Democratic pri
mary regulated by the State of Texas. The winners
of the association’s election would then enter that
primary, where the voting was open to all, and would
virtually always prevail. The Court granted injunc
tive relief under what is now Title 42, United States
Code, Secs. 1971, 1983, and 1985 (3) against those
preventing Negroes from voting in the association’s
election before the primary. It necessarily did so upon
the basis of “ state action.” 44 One authority, in com
menting upon the Terry case, has stated:
individual plaintiffs would have been subject to civil and criminal
liability under federal law if they had failed to proceed with
desegregation.” (11. 38.)
44 The Supreme Court in Smith v. Allwright, 321 U. S. 649,
expressly overruling Grovey v. Townsend, 295 U. S. 45, held that
when the state entrusts determination o f voting qualifications to
the political party there is state action. South Carolina there
upon repealed all statutes relating to primaries, and the State
Constitution was amended, taking away the legislature’s power to
regulate primaries. But in Elmore v. Rice, 72 Fed. Supp. 516,
aff’d., 165 F. 2d 387 (C. A. 4), cert. den. 333II. S. 875, these efforts
proved unavailing when it was held that the primary is part of
the general election, so party members become state officers in de
termining voting qualifications. Further efforts to avoid “ state
action” came to naught in Baskin v. Brown, 174 F. 2d 391 (C. A.
4), and see Chapman v. King , 154 F. 2d 460 (C. A. 5), cert, den.,
327 U. S. 800. But in the Terry case no law had to be repealed
and the association’s election preceded the primary election.
394702— 56— — 5
60
Not only may the private group be denied a
liberty to act as it sees fit in an area of state
concern, but when the group so exercises its
powers as to infect the blood-stream of official
sovereignty its exercise of power may be treated
as the assertion of state authority.45
Defendants intimate (Defts.’ Br. 30, 36, 13) that in
any event no deprivation of the Negro children’s
rights was consummated and that at most “ isolated
threats” were involved. Even were that true, plain
tiffs were not obliged to stand passively by till the
deprivation was accomplished. An elementary func
tion of equity is to afford preventive relief and to give
protection before the damage is done. “ The historic
injunctive process was designed to deter, not to pun
ish.” Hecht Co. v. Bowles, 321 U. S. 321, 329. Un
happily, in this case, though, there wTas a deprivation,
and one which resulted directly from the illegal pres
sures of the defendants upon the plaintiffs. The school
board was forced as a result to close the schools two
weeks in advance of the usual closing time (R. 33, 44).
Y
The injunction does not impose any restrictions upon lawful
free speech and assembly
The defendants in this case were enjoined from
interfering with the free operation of schools within
the plaintiffs’ jurisdiction by acts of trespass, boy
cott or picketing and from in any other manner deter-
« Mark DeW olfe Howe, “The Supreme Court, 1952 Term”
( “ Foreword: Political Theory and the Nature o f Liberty” ), 67
Harvard Law Review 91,95 (1953).
61
ring the attendance at school of children within the
school district and from in any manner threatening
or intimidating the individual plaintiffs.
The defendants themselves make no contention that
the injunction , deprives them of their lawful rights
of speech and assembly, but the Attorney General of
Georgia does. :
The injunction in this case is no broader than is
necessary to prevent a repetition of the acts which
defendants committed and the kind of speech in
which they indulged. Those acts and that type of
speech were not within the channels of the democratic
process46 but were calculated and intended to force
disobedience of the law. Such verbal and other con
duct is subversive of orderly governmental procedures
and is not protected by the courts as “ free speech.”
Defendants pursued a consistent pattern to foree
the school board to disobey the law. Nor did the
excesses of their speech and behavior involve merely
occasional lapses out of too much zeal for their cause.
This the court below made clear in its Memorandum
Opinion on Pinal Hearing, when it stated (R. 52) :
Some intemperance of speech and act may be
tolerated, and the right of peaceful assembly
and petition for redress should be respected
and protected. In this case, however, the sev-
46 Defendants viewed the democratic process with disdain, as
is clear from the opinion o f the court below:
“ * * * The defendants, or some o f them, had expressed to
the Board, or individual members thereof, the view that any
orderly change in the law was too slow a process and that the
defendants would compel a rescission o f the order of desegrega
tion by intimidation and force, i f necessary.” (Memorandum
Opinion on Final Hearing, R. 49.)
394702— 56-------6
62
era! assemblies or mass meetings were by in
flammatory speeches dissolved into a spirit of
revolt against the law and acts were committed
and words spoken that destroyed or thwarted
one of the main objects of government, which
is to insure domestic tranquility.
The allusions to the Record by the Attorney Gen
eral of Georgia (Ga. Br. 42-43) would convey the
impression that defendants were pursuing their ad
vocacy in a peaceful and lawful manner. And they
gloss over the fact that defendants’ verbal and other
conduct—far from being an “ exposition of ideas” 47—
was a form of pressure directed at the school board
to force it to rescind its lawful desegregation order.
Some excerpts from the Findings of Fact of the court
below will clearly show that the defendants’ utter
ances and conduct had but one object—to coerce the
school board into ignoring its lawful duties. The
court below found, for example:
3. * * * In that meeting [August 3, 1955]
those of the defendants who were in attendance
or represented by authorized members or offi
cials engaged in inflammatory speechmaking
and denunciations, all of the same character
and purport and revealed a concert of action
and a general agreement on their part to com
pel, by force and intimidation, a rescission of
the order of the Board of Directors in integrat
ing the races in the public schools. The Four
teenth Amendment to the Constitution was
denounced, and while those who indulged in
speechmaking disavowed violence, yet the ut
47 C f., Ghaplinshy v. New Hampshire, 315 IT. S. 568, 572.
63
terances disclosed by the evidence showed that
the words used, and the very nature of the
speeches, would have and did have the effect,
not only to encourage violence but to intimidate
those who are charged with the responsibility
of integrating the races. (R. 43-44.) 48
4. Following the first mass meeting and in
between and after the others, the defendants,
both in meetings with members of the Board
of Directors and the individual members
thereof, and by telephone calls, and by threats
to throw a picket line about the schools, and by
acts of terrorism so far as the Superintendent
of Schools was concerned, so intimidated the
parents and patrons of the schools, as well as
the Board of Directors and the Superintendent,
as to force a suspension of school activities.
The parents of white pupils were alarmed and
kept their children from attendance in the
schools because of the apparent hazard; and the
defendants made personal calls on parents of
colored children, at which time they admon
ished them to withdraw their children from en
rollment as pupils in an integrated school
system. (R. 44.)
And in the Findings of Fact and Conclusions of
Law proposed by plaintiffs below, and adopted by the
Court:
5. On the night of August 9, 1955, defendant
Brewer and several members of “ The Citizens
Committee Representing Segregation in the
48 Courts do not have to be “blind” to what “ [a]ll others can
see and understand.” Cf., Chief Justice Taft in Child Labor Tax
Case (Bailey v. Drexel Furniture Co.), 259 U. S. 20, 37; United
States v. Rumely, 345 U. S. 41, 44.
64
Hoxie Schools” attended the regular meeting
of plaintiff school board and presented resolu
tions, petitions and demands to the plaintiffs
that they abolish the integrated school system
and return to segregation. At this meeting
John Jones, a member of the Committee warned
plaintiff directors and superintendent that if
they did not send the negro children back to a
segregated school “ someone was apt to get
hurt.” While these defendants were in the
meeting making their demands, a crowd of over
one hundred persons was milling about outside
the school building. (R. 32.)
7. * * * Defendant Guthridge told plaintiffs
that he would not be responsible if some of his
clients and associates or those acting in concert
with them should throw a rock through a car
windshield and put out the eye of a plaintiff.
(R. 33.)
9a. Defendant Copeland made a speech label
ing the 14th amendment as a damnable, iniqui
tous fraud, predicting that “ blood would run
knee-deep all over Arkansas;” discussing the
use of Smith and Wessons and Colts and grass
rope as devices successful in keeping “ the nig
ger out of the white bedroom” ; discussing rape
of a white woman by a negro in the State of
Mississippi for which the citizens lynched the
negro “ with a five-cent piece of plow line,” thus
saving the expense of Court procedure; stating
that he participated in the lynching for which
he had no apologies since the “ power of govern
ment is with the people” ; suggesting that
patrons of the Hoxie school district defy the
authorities and refuse to pay taxes. (R. 34.)
65
The above examples, which are by no means all-
inclusive, will suffice to show that no legitimate issue
of “ free speech” is posed by the injunction which
'was issued by the court below.' In many instances
courts have upheld restraints against “ fighting
words” and incitement to violence and disobedience
of the law of a less volatile and explosive character
than those of the defendants in this case, particularly
when they are viewed in the difficult and delicate con
text of adjustment from a pattern of segregation to
one of compliance with the Constitution which this
case presents. In the light of that background, the
court will be especially mindful that “ the character
of every act depends upon the circumstances in which
it is done,” as stressed by Mr. Justice Holmes in
Schenck v. United States, 249 IT. S. 47, 52.
“ Wide as are the freedoms of the First Amend
ment,” the Supreme Court “ has never hesitated to
deny the individual’s right to use the privileges for
the overturn of law and order.” 49 Yet this is pre
cisely the end to which defendants put their privilege
in the case at bar. And as the Court had occasion to
point out in American Communications Association v.
Bonds, 339 II. S. 382, 399, “ We have never held that
such [First. Amendment] freedoms are absolute.”
The Constitution permits recognition of the obvious
fact that there are “ words that may have all the effect
of force” (Mr. Justice Holmes, in Schenck v. United
States, supra, at 52), and that utterances, oral or writ
ten, can have the causal relationship to evils which
49 Reed, J., dissenting, in Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U. S. 123, 199.
66
may be averted, whether by the legislative body or by
the courts. The Constitutional freedoms of speech
and press do not include freedom to utter obscenity,
Robertson v. Baldwin, 165 U. S. 275, 281; or to use
the mails to defraud, Donaldson v. Read Magazine,
333 U. S. 178, 191; to commit treason, Chandler v.
United States, 171 F. 2d 921 (C. A. 1), cert, den.,
336 U. S. 918, rehear, den., 336 IT. S. 947; for govern
ment employees to engage in active politics, United
Public Workers v. Mitchell, 330 IT. S. 75; or to thwart
the nation’s military effort in wartime, Schenck v.
United States, supraP
In this case the defendants were engaging in illegal
conduct for the very purpose of forcing the school
board to violate the law. As Judge Reeves made clear
(R. 50):
The defendants should not complain, because,
if they were in fact conspirators (the evidence
showed that they were, for the purposes mem
tioned), then each became liable for suits in the
civil courts by individuals thus injured and for
prosecutions upon appropriate action by a
United States grand jury.50 51
50 For additional examples of tlie right of the public to be pro
tected from evils o f conduct, even though First Amendment rights
of persons or groups are thereby in some manner infringed, see
American Communications Association v. Douds, supra, at pp.
398-399.
51 As we have previously observed, rescission by the plaintiffs o f
the desegregation order would, under the circumstances which ex
isted in Hoxie, have been tantamount to a wilful deprivation of
the equal protection o f the laws. I f would thus have constituted
a violation o f Title 18, United States Code, Section 242. Screws
v. United States, 325 U. S. 91; Williams v. United States, 341U. S.
97. The statute, of course, applies to denial of the equal protec
67
And—
The actions of the defendants constitute tres
passing, disturbance of the peace and viola
tions of the compulsory school attendance laws
of the State of Arkansas.52
“ Free speech” cannot he used as a cloak for illegal
conduct, as was made quite clear in Giboney v. Em
pire Storage & Ice Co., 336 U. S. 490, when Justice
Black, speaking for a unanimous Court, said (336
IT. S., at 498) :
It rarely has been suggested that the consti
tutional freedom for speech and press extends
its immunity to speech or writing used as an
integral part of conduct in violation of a valid
criminal statute. We reject the contention
now.53
tion o f the laws as well as to deprivation o f other Fourteenth
Amendment rights. See Apodaca v. United States, 188 F. 2d 932
(C. A. 10) ; Lynch v. United States, 189 F. 2d 476 (C. A. 5), cert,
den., 342 U. S. 831; and Koehler v. United States, 189 F. 2d 711
(C. A. 5), cert, den., 342 U. S. 852; Emerson and Haber, Political
and Civil Rights in the United States, (1952), pp. 71-72. For
application o f 42 U. S. C. 1983, the civil counterpart o f 18 IT. S. C.
242, to a denial of the equal protection of the laws, see Hague v.
C. / . O., 307 IT. S. 496; Dyer v. Abe , 138 Fed. Supp. 220 (D. C.
Hawaii, Feb. 10,1956).
52 From Conclusions o f Law Proposed by Plaintiffs (R. 39) and
adopted by the court below. (R. 45.)
53 In the Giboney case, a union, including within its membership
retail ice peddlers who drove their own trucks, tried to get non
union ice peddlers to join. Agreements not to sell to the nonunion
peddlers were secured from all but one local wholesale ice dis
tributor (Empire Storage & Ice Co.) as part o f a plan to prevent
the nonunion peddlers from obtaining ice supplies. Empire’s
plant was peacefully picketed to compel it to make such an agree
ment itself, and its business suffered substantially when unionized
truck drivers refused to cross the picket lines. Empire thereupon
68
Restriction upon freedom of expression to accom
plish -suCli unlawful ends has often been upheld. As
-the Supreme. Court said in American Communications
Association v. Bonds, 339 IT. S. 382, 394:
Although the First Amendment provides
: that Congress shall make no law abridging the
. freedom of speech, press or assembly, it has
long been established that those freedoms them
selves are dependent upon the power of consti
tutional government to survive. I f it is to sur
vive if must have power to : protect itself
against unlawful conduct and, under some
circumstances, against incitements to commit
unlawful acts. Freedom of speech thus does
not comprehend the right to speak on any sub
ject at any time.
And in Chaplinsky v. New Hampshire, 315 U. S.
568, 571-572, the Court, speaking through Mr. Justice
Murphy, said:
* * * There are certain well-defined and
narrowly limited classes of speech, the preven
tion and punishment of which have never been
thought to raise any Constitutional problem.
These include the lewd and obscene, the pro
fane, the libelous, and the insulting or “ fight
ing” words—those which by their very
utterance inflict injury or tend to incite an
immediate breach of the peace. It has been
well observed that such utterances are no es-
sought and obtained an injunction against the picketing. The
Missouri Supreme Court affirmed the injunction order on the
ground that picketing to force Empire to join the combination to
stop sales to the nonunion peddlers sought to induce a violation of
the Missouri antitrust law and picketing (for an unlawful purpose
may be enjoined. The United States Supreme Court affirmed.
69
sential part of any exposition of ideas, and
are of such slight social value as a step to truth
that any benefit that may be derived from them
is clearly outweighed by the social interest in
order and morality. “ Resort to epithets or
personal abuse is not in any proper sense com
munication of information or opinion safe
guarded by the Constitution, and its punish
ment as a criminal act would raise no question
under that instrument.” Cantwell v. Connec
ticut, 310 IT. S. 296, 309-310.54
The words of the Court in the Cantwell case, supra,
at 310, are particularly apposite as applied to the
facts and background of the instant litigation:
The essential characteristic of these liberties
is, that under their shield many types of life,
character, opinion and belief can develop un
molested and unobstructed. Nowhere is this
shield more necessary than in our own coun
try for a people composed of many races and
“ “ * * * [S]ociety long ago learned that words can be an in
citement to criminal acts and that such words may endanger the
general welfare almost as much as do the forbidden acts. One of
the wisest o f contemporary judges, Learned Hand, has observed
that ‘words are not only the keys of persuasion but the triggers of
action.’ What Judge Hand meant to suggest was that as long
as words are used only to persuade, the First and Fourteenth
Amendments prevent any agency of American government from
seeking either to prevent the utterance of such words or to punish
those who do utter them. But where words are of such a char
acter and are uttered under such circumstances that they are
intended to incite listeners to take unlawful action against the
state, and there is good reason to believe that unlawful action will
indeed result, then government may properly regard such words
as themselves.unlawful and provide for the punishment of persons
using them.” Robert K. Carr, “ Security and Freedom,” 42 Yal»
Review 496, 501 (1953). [Emphasis the author’s.]
70
of many creeds. There are limits to the ex
ercise of these liberties. The danger in these
times from the coercive activities of those who
in the delusion of racial or religious conceit
would incite violence and breaches of the peace
in order to deprive others of their equal right
to the exercise of their liberties, is emphasized
by events familiar to all. These and other
transgressions of those limits the States appro
priately may punish.
In three recent Supreme Court cases 55 the Court
again has had occasion to stress the limitations upon
expression which conflicts with other demands of a 35
35 A ll o f which—be it noted— arose after the case o f Terminiello
v. Chicago, 337 U. S. 1, which the Georgia Attorney General feels
controls the instant case. (Ga. Br. 51.) The Terminiello case, by a
closely divided Court with several separate opinions, has been
characterized as “highly controversial” (cf. “ Freedom of Speech
and Assembly: the Problem o f the Hostile Audience,” 49 Colum
bia Law Review 1118 ( 1949) ) . The defendant had been convicted
o f violating a Chicago breach o f the peace ordinance. He had de
nounced various racial and religious groups in the course of his
address before a meeting. Persons who resented his views and who
had gathered outside the auditorium to protest the meeting caused
a public disturbance. The trial court had instructed the jury that
“breach o f the peace” included speech which “ stirs the public to
anger, invites dispute, brings about a condition o f unrest, or
creates a disturbance.” In an opinion by Justice Douglas the
majority o f the Court held that the ordinance, thus construed, was
an invalid infringement upon freedom of speech. Chief Justice
Vinson dissented on the ground that the correctness o f the charge
to the jury had not properly been raised in the State appellate
courts, and Mr. Justice Frankfurter, joined by Justices Jackson
and Burton, wrote a separate opinion on the same ground. Mr.
Justice Jackson wrote a dissenting opinion, in which Mr. Justice
Burton joined, on the ground that the speech was not entitled to
constitutional immunity because it was a provocation to immediate
breach o f the peace.
71
free society. In Feiner v. New York, 340 U . S. 315,
a conviction was upheld against the claim that it vio
lated the defendant’s free speech right under the First
and Fourteenth Amendments. The defendant had
made an inflammatory speech to a mixed crowd of a
large number of Negroes and whites on a New York
City street. He had been urging the Negroes to rise
up in arms and fight for equal rights, and the crowd,
which blocked the sidewalk and overflowed into the
streets, became restless. To prevent the violence which
appeared to be in the offing, a policeman three times
tried to get the speaker to stop speaking and after his
third refusal arrested him under a provision of the
penal code forbidding an incitement of a breach of
the peace. After pointing out that under the circum
stances there was ample support for the conclusion
that the officer was motivated solely by a proper con
cern for preservation of order and protection of the
general welfare and no evidence that the police action
was aimed at a suppression of the speaker’s views and
opinions, the Court in affirming the conviction said
(340 II. S., at 321) :
* * * It is one thing to say that the police
cannot be used as an instrument for the sup
pression of unpopular views, and another to
say that, when as here the speaker passes the
bounds of argument or persuasion and under
takes incitement to riot, they are powerless to
prevent a breach of the peace.
See, also, 'Dennis v. United States, 341 U. S. 494 (up
holding the conviction of Communist Party leaders
for violation of the provisions of the Smith Act 3i-
72
rected at conspiracy to teach or advocate the over
throw of the government by force and violence), and
Beauharnais v. Illinois, 343 U. S. 250 (where the
Court found that there was no deprivation of liberty
under- the Due Process Clause of the Fourteenth
Amendment in the conviction of the defendant under
an Illinois group libel statute).
. The above authorities amply support the conclu
sion that the injunction which was issued in this case
is not violative of defendants’ rights of free speech
and constitutes no “ prior restraint.” The injunction
properly prevents them from interfering with - the
school board’s desegregation program. It does noth
ing to prevent them from expressing their dislike
for desegregation. It does nothing to prevent their
peacefully attempting to effect a change in the Con
stitution which requires that if public education is to
be provided it must be provided without the discrimi
nation inherent in a segregated public school system.
V I
Where the public interest is concerned, courts o f equity will
go farther in granting relief than might otherwise be the
case
This is a ease where an agency of the State of
Arkansas has sought the aid of a federal court in the
effectuation of Constitutional rights. A school board
is the “ creature” of the State (Board of Education
v. Barnette, 319 U. S. 624, 637), and school board offi
73
cials are State officers.56 The State of Arkansas has
not opposed the position of the plaintiffs in this suit.
This is in line with the policy enunciated in the amicus
curiae brief of the Attorney General of Arkansas in
the School Segregation Gases “ that the process of
integration must be applied as the circumstances in
each district may require.” 57
Where a State is a litigant and where the public
interest is involved, it is recognized by equity courts
that they will go farther in sustaining its position
than would otherwise be the case. We can say, as
Mr, Justice Holmes had occasion to note in an action
where Georgia herself was a litigant, that this “ case
has been argued largely as if it were one between two
private parties; but it is not.” ( Georgia v. Tennessee
Cooper Co., 206 II. S. 230, 237.) “ Some peculiarities
necessarily mark a suit of this kind. I f the State has
a case at all, it is somewhat more certainly entitled
to specific relief than a private party might be.” Id.
See, also, Virginian Railway Co. v. System Federation
No. 40, 300 U. S. 515, where the Court stated (300
IT. S., at 552) :
* * * Courts of equity may, and frequently
do, go much farther both to give and withhold
relief in furtherance of the public interest than
66 Edwards, The Co-urts and the Public Schools, 113-115 (1955) ;
Remmlein, The Law of I^ocal Public School Administration, 6-8
(1953); Covington v. Montgomery County School Board, 139 F.
Supp. 161,162 (M. I). C. 1956); McKay, op. dt., supra, at 1072.
See, also, It. 43.
57 Amicus Curiae Brief o f the Attorney General of Arkansas in
Brown v. Board o f Education, and companion cases, before the
Supreme Court, p. 6.
74
they are accustomed to go when only private
interests are involved. Pennsylvania v. W il
liams, 294 U. S. 176, 185; Central Kentucky
Gas Co, v. Railroad Commission, 290 U. S. 264,
270-273; Harrisonville v. W . S. Dickey Clay
Co., 289 IT. S. 334, 338; Beasley v. Texas &
Pacific Ry. Co., 191 IT. S. 492, 497; Joy v. St.
Louis, [138 IT. S. 1, 47] ; Texas & Pacific Ry. Co.
v. Marsha,ll, 136 IT. S. 393, 405-406; Conger v.
New York, W. S. & B. R. Co., 120 N. Y. 29,
32, 33; 23 N. E. 983.
Not only is the State of Arkansas through the
plaintiff school board seeking the aid of this Court
against the acts of those who would thwart the law,
but it is doing so in the aid of a sweeping policy of
Supreme Court decisions which culminate in the
School Segregation Cases and of Congressional policy
as manifested in the aggregate of the Civil Rights
statutes. The functions of the school board may in
deed derive from State law as defendants assert
(Defts.’ Br. 18) .5S But we can hardly disregard the
national interest in education given recognition in
the School Segregation Cases themselves, where the
Court took notice of the fact that education “ is re
quired in the performance of our most basic public
responsibilities, even service in the armed forces. It 58
58 While public education is a state function, it must, i f offered
by the state, meet federal Constitutional standards as the School
Segregation Cases hold. In that sense it has been stressed that
“While education is a State matter, it is not so absolutely or ex
clusively.” Mendez v. Westminster School District, 64 Fed. Supp.
544, 546 (D. C. S. I). Cal.), aff’d. Westminster School District v.
Mendez, 161 F. 2d 774 (C. A. 9).
75
is the very foundation of good citizenship.” (347
U. S., at 493.)
The opportunity of education “ where the state has
undertaken to provide it, is a right which must be
made available to all on equal terms.” (Id., at 493.)
The plaintiffs in this case are seeking no more than
to have that right made meaningful. For otherwise
“ our heritage of constitutional privileges and immu
nities is only a promise to the ear to be broken to the
hope.” 59
CONCLUSION
For the reasons stated, it is respectfully submitted
that the order of the District Court granting a per
manent injunction against the defendants should be
affirmed.
W arren O l n e y III,
Assistant Attorney General.
A r t h u r B. C ald w e ll ,
H ubert H. M argolies,
H e n r y P u tzel , Jr.,
Attorneys,
Department of Justice.
A ugust 1956.
59 Mr. Justice Jackson, concurring, in Edwards v. California,
314 U. S. 160,186.
U. S. GOVERNMENT PRINTING OFFICE: 1956