Louisiana Education Commission for Needy Children v. U.S. District Court and for the Eastern District of Louisiana Memorandum in Opposition

    jSTo . 764 M i sc.

October T erm, 1967

L ouisiana E ducation Commission for Needy 
Children et al.

v. -
IN AND FOR THE 

E astern D istrict of L ouisiana, etc.

ON MOTION OF
PROHIBITION

R A LPH  S. SPRITZER,
Acting Solicitor General,

JOHN DOAR,
Assistant Attorney General,

Department of Justice, 
Washington, D.C. 20530.

_ _ _ _ _

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J it tfe JS ujiim  of tin K n M  jftates
October Term, 1967

No. 764 Misc.

L ouisiana E ducation Commission for Needy 
Children et al. 

v.
U nited States D istrict Court in  and for the 

E astern D istrict of L ouisiana, etc.

ON MOTION FOR LEAVE TO FILE  PETITION FOR A W R IT OF 
PROHIBITION

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

In June 1967, while a challenge to the constitution­
ality of an earlier tuition grant statute (Act 147 of 
1962) was pending before the respondent three-judge 
district court, the Louisiana Legislature enacted a 
new statute (Act 99 of 1967) providing for financial 
grants to students attending private schools and cre­
ating the Louisiana Education Commission for Needy 
Children—the new measure to take effect if and when 
the old law was held unconstitutional. On August 26, 
after full hearing, the three-judge court found the 
existing tuition grant statute unconstitutional and 
enjoined its enforcement. Poindexter v. Louisiana

279- 442— 07 ( 1 )



2

Financial Assistance Commission, ISTo. 14683 (E.D. 
La.). A stay of that decision was denied by Mr. Justice 
Black on September 2, and a notice of appeal to this 
Court was filed on September 8.

On September 8, the United States, as plaintiff- 
intervenor, moved the district court for leave to file 
a supplemental complaint challenging the constitu­
tionality of Act 99—the new tuition grant law—and 
adding as additional defendants the Louisiana Educa­
tion Commission for Needy Children and its ex officio 
members, charged with administering the new statute. 
On September 19, the Education Commission an­
nounced that the tuition grant program authorized 
by Act 99 would be put into effect immediately, 
whereupon the United States applied for a temporary 
restraining order against the Commission. On Sep­
tember 25, the three-judge court authorized the filing 
of the government’s supplemental complaint and 
granted its application for a temporary restraining 
order. At the same time the court denied a motion 
to recuse the judges, filed by Leander Perez, Sr. on 
behalf of the Louisiana Financial Assistance Com­
mission, and set a hearing on the motion for a 
preliminary injunction for October 10. On the fol­
lowing day, September 26, the court denied a motion 
to stay the temporary restraining order and the order 
denying the motion for recusation of the judges. A  
further application for stay, filed here on October 7, 
was denied by Mr. Justice Black on October 9. For 
independent reasons, the scheduled hearing before the 
district court has been continued until October 26, but



3

the temporary restraining order against implementing 
the new tuition grant remains in effect.

The pending petition for prohibition seeks to pre­
vent the district court, as presently constituted, from 
proceeding further on the complaint challenging the 
constitutionality of the new Louisiana private school 
tuition grant statute, on the ground that the three 
sitting judges should be recused as personally biased 
and prejudiced in the matter. Even if movers had an 
arguable case for recusation, it is not clear that the 
extraordinary remedy of prohibition would be appro­
priate, since the claim is reviewable on appeal if  and 
when an adverse judgment is rendered. But, at all 
events, the motion to recuse is groundless.

The allegation of bias on the part of these three 
federal judges rests entirely on the fact that their 
opinion invalidating the old tuition-grant statute 
refers to the new law in terms that can be read as 
implying that it might form a part of the same 
pattern as the earlier grant programs—albeit the 
court expressly refrained from reaching the merits 
of the recent enactment. The relevant passage of the 
opinion* is as follows:

Waiting in the wings is Act 99 of 1967, 
designed to fill the vacuum that will result from 
our injunction against Act 147. The 1967 model 
provides “ financial aid scholarships to needy 
children enrolled in private non-sectarian ele­

*The other statements quoted by movers (Petition, p. 10) do 
not relate to the 1967 A ct, but were findings with respect to 
A ct 147 o f  1962.



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mentary and secondary schools located in this 
state whose parents choose not to enroll said 
children in the public education facilities <of 
this state” , because they are “mindful of the 
increase in juvenile delinquency, school drop­
outs and juvenile crime rates . . . mindful that 
the parent, not the state of Louisiana, shall be 
the determining force which shall decide on the 
type of education ultimately received by the 
child . . . [but] lack the finances which would 
enable them “ to enroll their children in private 
schools.”  [Ellipses in original.]

In part, this is no more than a recognition of an 
historical fact—relevant, though not essential, to the 
decision in that proceeding. But the statement involves 
no impropriety even if read as suggesting—somewhat 
beyond its words—that the new statute appears, prima 
facie, to offend the Constitution no less than its 
predecessor. Certainly, the opinion betrays no “ per­
sonal”  bias or prejudice “ against * * * a party”  or 
“ in favor of any adverse party.”  See 28 U.S.C. 144. 
The situation is not remotely like that in Berger v. 
United States, 255 U.S. 22, where the judge was 
charged with having repeatedly declared, in vivid 
language, a firm bias against all German-Americans. 
As that decision holds, the trial judge may properly 
pass on the legal sufficiency of an affidavit of prejudice 
filed against him, assuming the facts alleged are true. 
Here, the challenged judges were plainly correct in 
denying the motion to recuse since the allegations 
advanced were wholly insufficient to require their 
disqualification.



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For the foregoing reasons, the motion for leave to 
file a petition for a writ of prohibition should be 
denied.

Respectfully submitted.
R alph S. Spritzer, 

Acting Solicitor General. 
J ohn D oar,

Assistant Attorney General.
October 1967.

U.S.  GOVERNMENT PRINTING OFFICE: 1967