Orleans Parish School Board v. Bush Brief for Appellees

    In th e

Intteft BtiXtm (Enurt of Appeals
F oe  t h e  F i f t h  C ir c u it  

No. 17,641

O r l e a n s  P a r is h  S c h o o l  B o a r d ,
Appellant,

— v .—

E a r l  B e n j a m i n  B u s h , et al.,
Appellees.

A PPE A L PROM  T H E  U N IT E D  STATES D ISTRICT COURT 

FOR T H E  EASTERN D ISTRICT OF LO U ISIAN A

BRIEF FOR APPELLEES

A. P. T u r e a u d

1821 Orleans Avenue 
New Orleans 16, Louisiana

T h u r g o o d  M a r s h a l l  
C o n s t a n c e  B a k e r  M o t l e y  

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees



In th e

Int&ii Staten (£mvt nf Appeals
F oe t h e  F i f t h  C ir c u it  

No. 17,641

O r l e a n s  P a r is h  S c h o o l  B o a r d ,

—v.-
Appellant,

E a r l  B e n j a m i n  B u s h , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

Statement of the Case

This is the third time that this case has been brought 
before this Court. This litigation involves the right of the 
appellees, who are Negro school children and their respec­
tive parents, to a racially unsegregated education in the 
public schools operated by the appellant. On two prior 
appeals, appellant sought to have this Court set aside a 
preliminary injunction entered by the Court below.1 The 
present appeal is from the decree making that injunction 
permanent.

1 Bush v. Orleans Parish School Board, 138 F. Supp. 336 (E. D. La. 
1956), mandamus denied 351 U. S. 948 (1956); Bush v. Orleans Parish School 
Board, 138 F. Supp. 337 (E. D. La. 1956), affirmed Orleans Parish School 
Board V. Bush, 242 F. 2d 156 (5th Cir. 1957), cert. den. 354 U. S. 921; 
Orleans Parish School Board v. Bush, 252 F. 2d 253 (5th Cir. 1958), cert, 
den. 356 U. S. 969.



2

Prior to a recital of the circumstances leading to the 
instant appeal, it is proper to note that the preliminary in­
junction in this case was entered on February 15, 1956, and 
that although more than three years have elapsed since the 
entry of that injunction the record is devoid of even a sug­
gestion that appellant has taken steps to comply with that 
order which was twice approved by this court, and which 
the Supreme Court of the United States has twice declined 
to review.

A  brief chronological review of the events immediately 
preceding the instant appeals follows:

a) March 5, 1958: Answer of Defendant to Plaintiff’s 
1st Amended Complaint (R. 14);

b) March 27, 1958: Plaintiffs’ Motion for Judgment on 
the Pleadings (R. 20);

c) April 16, 1958: Defendant’s Motion to Dismiss (R. 
27);

d) July 1, 1958: Order Denying Defendant’s Motion to 
Dismiss (R. 28-30; 163 F. Supp. 701);

e) July 2,1958: Minute Entry Order—Plaintiffs’ Motion 
for Judgment on the Pleadings Granted (R. 31);

f) July 11, 1958: Defendant’s Motion for Rehearing 
(R. 32);

g) August 4, 1958: Action commenced in state court by 
State of Louisiana naming the parties to this action 
as defendants (R. 3 5 ) ;2

2 No decision has yet been rendered in the trial court, i.e., the Civil 
District Court for the Parish of Orleans, and a new party sought to inter­
vene in that case as late as March 13, 1959. Appellees here (defendants in 
that case) have plead the judgment o f  the court below as res judicata in 
the state court but the plea has been overruled. As the matter is still pending- 
in the trial court, definitive construction of the statute involved is not likely 
to be rendered by the Supreme Court of Louisiana in the near future.



3

h) September 8, 1958: Defendant’s Motion for Stay of 
Proceedings pending construction of statute by Su­
preme Court of Louisiana (R. 33-34);

i) October 23, 1958: Order Denying Motion of Defen­
dant for Rehearing and to Stay; Pinal Decree (R. 51- 
54).

On the instant appeal, appellant seeks reversal of the 
decree, urging that the court below erred in denying ap­
pellant’s motion to dismiss. By the motion to dismiss ap­
pellant contended that it was not a proper party, relying 
upon Act 319 of the Louisiana Legislature of 1956 (La. R. S. 
17:341, et seq.) (The statute is printed in appendix to ap­
pellants’ brief, pp. 12-15), Appellant also urges reversal 
on the ground that the court below erred in denying its 
motion for a stay of proceedings pending construction by 
the highest court of the State of Louisiana of the aforemen­
tioned statute.3 It is to be noted that the motion for a stay 
was filed after the court below had denied the motion to 
dismiss and granted appellees’ motion for judgment on the 
pleadings, and during the pendency of the motion for re­
hearing which had been filed prior to the entry of a formal 
decree. It is to be further noted that the state court litiga­
tion upon which the motion for a stay is predicated was not 
commenced until after the decision of the court below on 
the respective motions to dismiss and for judgment on the 
pleadings (see chronology, supra).

In the order denying the motion to dismiss, the court 
below ruled that Act 319 was unconstitutional on its face 
and an artifice for evading the decision of the Supreme 
Court in Brown v. Board of Education, 347 U. S. 483 (1954). 
The court below, pointed out in its opinion that appellant 
relied specifically on Section IV  of Act 319, which reads as 
follows:

3 The reference is to the litigation discussed in Footnote 2, supra.



4

Section IV. The President of the Senate shall ap­
point two (2) members from that body, and the 
Speaker of the House shall appoint two (2) members 
from the House of Representatives who shall serve as 
the Special School Classification Committee of the 
Louisiana Legislature, which Committee shall have 
the power and authority to classify any new public 
schools erected or instituted, or to re-classify any 
existing public school, in any city covered by the other 
provisions of this Act, so as to designate the same for 
the exclusive use of children of the white race or for 
the exclusive use of children of the Negro race. Any 
such classification or re-classification shall be subject 
to confirmation by the Legislature of Louisiana at its 
next regular session, said confirmation to be accom­
plished by concurrent resolution of the two houses of 
the Legislature. It is clearly understood that the Legis­
lature of the State of Louisiana reserves to itself the 
sole power to classify or to change the classification of 
such public schools from all white to any other classi­
fication, or from all Negro to any other classification, 
and the action of the Special School Classification Com­
mittee as recited hereinabove shall not become final 
until properly ratified by the Legislature.

The court below found with respect to the entire Act 
that:

In order to avoid the effect of the ruling of this 
Court in this case requiring desegregation in the public 
schools of the City of New Orleans the Legislature of 
the State of Louisiana passed Act 319 of 1956 (163 F. 
Supp. at 701).

Subsequently, at the time the court below denied the 
motions for rehearings and for a stay of proceedings, the



5

court rendered a brief per curiam opinion, in which it held, 
in addition, that the Act was unconstitutional on its face 
because the only standard provided in the Act for the al­
location of pupils is that set forth in Section V which pro­
vides :

Only white teachers shall teach white children in the 
public schools; and only Negro teachers shall teach 
Negro children in the public schools (R. 52).

As indicated previously the preliminary injunction of 
February 15, 1956 was made permanent by the entry of a 
final decree on October 23, 1958. Appellant filed a notice of 
appeal on November 20, 1958 (R. 54).

A R G U M E N T

I.
The statute in suit is unconstitutional on its face be­

cause it reaffirms existing segregation in the public 
schools, requires classification of new schools on a ra­
cial basis, permits re-classification of existing schools 
on a racial basis, and establishes race as the only stand­
ard of pupil allocation.

The entire Act in question is a reaffirmation of the sep- 
arate-but-equal doctrine and an attempt to nullify the in­
junctive order of the court below. By this Act, the legis­
lature has attempted to devise a scheme whereby racial 
segregation in the public schools shall continue to exist, 
as in the past, and whereby this kind of prohibited state 
action may be insulated from attack in the federal courts, 
on the ground that the legislature is immune from suit.

The only school board in the State of Louisiana which is 
under federal court order to proceed with plans to desegre­



6

gate its public school system is Orleans Parish School 
Board, which includes the City of New Orleans. New Or­
leans is the only city in the state with a population in excess 
of 300,000. The Act is specifically limited by its terms to 
public school facilities “ in any city with a population in 
excess of three hundred thousand (300,000)” (Section I).

According to the title of the Act, the legislature has 
enacted this law not only “ to establish a method of classi­
fication of public school facilities in any city with a popu­
lation in excess of three hundred thousand (300,000),” but 
also “ . . .  to provide for the exclusive use of school facilities 
therein by white and Negro children respectively . . . ” and, 
“ . . .  to provide that white teachers shall teach only white 
children and Negro teachers shall teach only Negro chil­
dren; . . .”  Thus, the title to the Act makes clear its pur­
pose. The title also states that the law has been enacted 
for the purpose of providing “ the mode of changing the 
classification of any school” in cities with more than 300,000 
population.

Sections I and II of the Act specifically provide that 
schools which are presently being operated as Negro or 
white schools in New Orleans shall continue to be so oper­
ated “ unless otherwise classified by the legislature as pro­
vided in Sections III and IV ” of the Act.4

Section III provides that any new schools erected in New 
Orleans shall be “ . . . classified as white or Negro schools

4 “ Section I. Those public schools in any city in Louisiana with a pop­
ulation in excess of Three Hundred Thousand (300,000) presently being util­
ized in the education of children of the white race through the twelfth grade 
of school shall from the effective date of this statute be utilized solely and 
exclusively in the education of children of the white race, unless otherwise 
classified by the Legislature as provided in Sections III and IV  hereof.”

“ Section II. Those public schools in such cities presently being utilized in 
the education of children of the Negro race through the twelfth grade of 
school shall from the effective date of this statute be utilized solely and ex­
clusively in the education of children of the Negro race unless otherwise classi­
fied by the Legislature as provided in Sections III  and IV  hereof.”



7

by the Special School Classification Committee of the Lou­
isiana Legislature, provided for in Section IV . . . ” 5

Section IY  provides for the establishment of a Special 
School Classification Committee of the Legislature “ . . . 
which Committee shall have the power and authority to 
classify any new public schools . . . , or to re-classify any 
existing public school, . . .  so as to designate the same for 
the exclusive use of children of the white race or for the 
exclusive use of children of the Negro race.”

Section IV contains the following sentence upon which 
appellant places great reliance and contends that it is a 
provision permitting the legislature to classify schools as 
integrated schools:

. . .  It is clearly understood that the Legislature of 
the State of Louisiana reserves to itself the sole power 
to classify or to change the classification of such public 
schools from all white to any other classification, or 
from all Negro to any other classification, . . . (Em­
phasis supplied).

Appellant overlooks the fact that despite this provision 
the only standard for assigning children to schools is that 
provided by Section V, as indicated by the court below 
(E. 52).

Appellant also overlooks the fact that Section IY ex­
pressly sets forth that the Legislative Committee’s power 
and authority is limited to classifying or re-classifying 
schools “ . . . so as to designate the same for the exclusive 
use of children of the white race or for the exclusive use 
of children of the Negro race.”

5 “ Section III. From and after the effective date of this statute, such 
new public schools as are erected or instituted in any city with a population 
in excess of Three Hundred Thousand (300,000) shall be classified as white 
or Negro schools by the Special School Classification Committee o f  the Louisi­
ana Legislature, provided for in Section IV  hereof.”



8

Section IV also provides that “ any such classification or 
re-classification shall be subject,” only, “ to confirmation by 
the legislature,” and provides that the action of the Com­
mittee “ shall not become final until properly ratified by the 
Legislature.” (Emphasis supplied).

In addition to reserving to itself the power to classify 
schools as either exclusively Negro or exclusively white, 
the legislature, by Section V, provides:

Only white teachers shall teach white children in the 
public schools; and only Negro teachers shall teach 
Negro children in public schools.

This section, together with the title to the Act, and its 
other provisions, leaves no room for doubt as to the plain 
meaning of this Act—continued racial segregation in the 
public schools in the City of New Orleans.

In an attempt to insulate itself against attack in either 
state or federal courts, the legislature specifically provides, 
by Section VI, that any suit contesting the Act may be 
brought only against the state with the consent of the legis­
lature, first obtained, and provides further that:

. . .  no State, Parish or Municipal Board, Agent or 
Officer shall have any right or authority to sue or to 
be sued or to stand in judgment on any question affect­
ing the validity of this Act or any of its provisions.

It is thus clear that the legislature seeks to immunize the 
statute from attack in the courts.

Moreover, the Act itself, by reserving to the legislature 
the sole power to classify schools in New Orleans, is an 
attempt to prevent the appellant from carrying out the 
injunctive order of the court below. In short, as the court 
below held, the Act is simply an artifice which, if allowed 
to stand, would circumvent the order of the court below.



9

Section VII of the Act provides for severability, but, as 
a reading of the Act itself had demonstrated, each and 
every material section of the Act either reaffirms, requires, 
or permits racial segregation. Consequently, each and 
every section of the Act is unconstitutional, and no part 
thereof can be severed which would render the remaining 
portions meaningful or of any effect.

In Brown v. Board of Education of Topeka, 347 U. S. 483 
(1954), the Supreme Court declared the fundamental prin­
ciple that racial segregation in public education is uncon­
stitutional. In Brown v. Board of Education of Topeka, 
349 U. S. 294 (1955), the Court ruled that, “ All provisions 
of federal, state, or local law requiring or permitting such 
discrimination must yield to this principle” . (Emphasis 
supplied). As the court below held in its February 15, 1956 
opinion, cited supra, which was the very first opinion ren­
dered in this case, “ Insofar as the provisions of the 
Louisiana Constitution and statutes in suit require or 
permit segregation of the races in public schools, they are 
invalid under the ruling of the Supreme Court in Brown” 
(at 336). (Emphasis supplied).

The statute in question here clearly falls into this cate­
gory. The fact that schools may be classified under the 
Act as schools for the exclusive attendance of white chil­
dren, schools for the exclusive attendance of Negro chil­
dren, and as integrated schools, does not save it from 
constitutional attack. Brown v. Board of Education of 
Topeka, 347 U. S. 483 (1954) involved a permissive statute. 
See also, Kelly v. Board of Education of Nashville, 2 Race 
Relations Law Reporter 970 (1957),6 where a federal dis­
trict court held Tennessee’s School Preference Law uncon­
stitutional on its face. The Tennessee law provided for the 
establishment of all Negro and all white schools if parents

6 See also, Nicholson, “ The Legal Standing of the South’s School Re­
sistance Proposals,”  7 South Carolina Law Quarterly 1, 59 (1954).



10

elected to send their children to school with members of 
their own race only.

In addition, it must he remembered that the Supreme 
Court in the case of Cooper v. Aaron, 358 U. S. 1 (1958), 
upon reaffirming for the third time the principle that racial 
segregation in the public schools is unconstitutional, specifi­
cally pointed out that:

. . . the constitutional rights of children not to be 
discriminated against in school admission on grounds 
of race or color . . . can neither be nullified openly and 
directly by state legislatures or state executive or judi­
cial officers, nor nullified indirectly by them through 
evasive schemes for segregation whether attempted 
‘ingeniously or ingenously’ (Emphasis supplied).

The statute in suit certainly falls into this category. 
Furthermore, the Supreme Court also pointed out in that 
case that:

No state legislature or executive or judicial officer 
can war against the Constitution without violating his 
undertaking to support it.

In this connection, the Court quoted from Chief Justice 
Marshall, speaking for a unanimous court in United States 
v. Peters, 5 Cranch 115, 136:

If the legislatures of the several states may, at will, 
annul the judgments of the courts of the United States, 
and destroy the rights acquired under those judgments, 
the constitution itself becomes a solemn mockery . . .

The manifest result of the statute in this case, if allowed 
to stand, would be to nullify the desegregation decree of 
the court below which has been twice affirmed by this court.



11

Finally, as this court has already held in this case on the 
first appeal referred to, supra, a statute which provides no 
standard for the assignment of children to schools is un­
constitutional on its face either because it has on its face 
the effect of depriving appellees of their liberty without 
due process of law or as having implied as its only basis 
for assignment the prohibited standard of race.

II.

There is no construction which the Supreme Court 
of Louisiana could give to this statute which would save 
it, or any part of it, from the fact that it reaffirms, 
requires and permits racial segregation in the public 
schools.

On the face of the statute there is a clear and unequivocal 
requirement that presently existing Negro and white 
schools shall, from the effective date of the Act, continue 
to be so utilized (Sections I and II). In addition, on the 
face of the statute, there is a requirement that any new 
schools be classified as either white or Negro (Section III). 
Moreover, on the face of the statute, there is a requirement 
that only white teachers shall teach white children and 
only Negro teachers shall teach Negro children (Section V ). 
Finally, there is no authority given by the statute to the 
Special Committee to classify schools as schools which may 
be attended by both racial groups. As a matter of fact, 
the very section on which appellant relies provides that 
the Committee “ . . . shall have the power and authority 
to classify any new public schools erected or instituted, or 
to re-classify any existing public school, . . . ,  so as to desig­
nate the same for the exclusive use of children of the white 
race or for the exclusive use of children of the Negro race.” 
I f  Section IV can conceivably be construed to vest the 
Special Committee or the legislature with power to classify



12

schools as mixed or integrated, the same section is still 
void for the plain reason that it also permits racial re­
classifications.

Appellant relies upon the decision of the Supreme Court 
in Leiter Minerals, Inc. v. United States, 352 U. S. 220 
(1957), in support of its contention that the court below 
erred in denying its motion to stay all proceedings in this 
case pending construction of the statute by the Supreme 
Court of Louisiana. However, unlike the situation in the 
Leiter case, there is not involved in this case any “ prelimi­
nary doubts about local law” which ought to be resolved 
by the state court prior to reaching the constitutional ques­
tion (at 228). No one in this case contends that Act 319 
is inapplicable to this case. Neither is there any problem 
of interpretation involved since, as appellees pointed out, 
even if the statute could be construed to permit racially 
integrated school classifications, as appellant contends, 
Section IV is still void because it also permits of re­
classification on a racial basis. It should be noted that 
appellant admits on page 8 of its brief that Section IV 
permits of three classifications: all white, all Negro, or 
integrated. And, as the court below held, the only standard 
provided for assignment of children to schools is the pro­
hibited standard of race which is clearly implied by the 
limitations of Section V. There is also no question here 
as to what situations the statute is applicable since, by 
the express terms of the statute, it is applicable only to 
cities of 300,000 or more population and New Orleans is 
certainly in this classification. There is no problem here 
as to whether the statute is merely declaratory of prior 
Louisiana Law. There is no doubt as to what problems the 
Act was designed to meet. As the court below held, the 
Act was passed “ In order to avoid the effect of the ruling 
of this court in this case requiring desegregation in the 
public schools of the City of New Orleans” (at 701). Conse­



13

quently, the Leiter case and the situations enumerated there 
as dictating equitable abstention by federal courts are not 
involved here. The federal courts are not required to post­
pone decision on the constitutionality of a state statute 
pending construction and interpretation by the state courts, 
where there is no ambiguity requiring construction or inter­
pretation. Chicago v. Atchison, Topeka & 8. F. R. Co., 357 
U. S. 77 (1958); Public Utilities Comm. v. United States, 
355 U. S. 534 (1958).

In addition, the court below was not called upon to 
address itself to “ a specialized aspect of a complicated 
system of local law outside the normal competence of a 
federal court.” Alabama Public Service Commission v. 
Southern Ry., 341 U. S. 341, 360 (1951) (concurring opin­
ion). On the contrary, it addressed itself to an issue which 
by congressional enactment, 28 United States Code, 
§1343(3), and Supreme Court decree, Brown v. Board of 
Education of Topeka, 349 U. S. 294 (1955), federal district 
courts are peculiarly endowed to entertain. Neither is this 
a case in which consideration of the statute here might have 
involved “ a tentative answer which may be displaced to­
morrow by a state adjudication,” Railroad Commission of 
Texas v. Pullman Co., 312 U. S. 496, 500 (1941), nor a case 
where a constitutional adjudication can be avoided by a 
definitive construction of the statute. Cf. Government £  
Civic Employees v. Windsor, 353 U. S. 364 (1957); Albert­
son v. Millard, 345 U. S. 242 (1953); Spector Motor Co. v. 
McLaughlin, 323 U. S. 101 (1944); Chicago v. Fieldcrest 
Dairies, 316 U. S. 168 (1942).

Therefore, the doctrine of equitable abstention is clearly 
inapplicable here.



14

CONCLUSION

For all of the foregoing reasons, the judgment below 
should be affirmed.

A. P. T u r e a u d

1821 Orleans Avenue 
New Orleans 16, Louisiana

T hxtrgood M a r s h a l l  
C o n s t a n c e  B a k e r  M o t l e y  

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees

Certificate of Service

This is to certify that on the day of April, 1959,
I served a copy of the foregoing brief upon Gerald A. 
Rault, counsel for appellant in the above-entitled case, by 
personally serving a copy of same upon him at 803 Amer­
ican Bank Building, New Orleans, Louisiana.

A. P. T tjreatjd