Motion for an Extraordinary Writ Vacating Stay of Injunction and Reinstating Injunction

    IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

EARL BENJAMIN BUSH, ET AL, 

Ve 

ORLEANS PARISH SCHOOL BOARD, ET AL. 

MOTION FOR AN EXTRAORDINARY WRIT VACATING 
STAY OF INJUNCTION AND REINSTATING INJUNC- 
TION, OR IN THE ALTERNATIVE, FOR AN ORDER 
MODIFYING THE STAY OF INJUNCTION BY IMPOSING 
TERMS AND CONDITIONS NECESSARY FOR THE 
SECURITY OF PLAINTIFFS* RIGHTS 

Earl Benjamin Bush, et al.,, plaintiffs, by their attorneys, 

respectfully move for an extraordinary writ under 28 U,S.C. 

§1651 vacating the order entered in this case by the United 

States District Court for the Eastern District of Louisiana 

(by Hon, Frank B, Ellis, District Judge) on May 1, 1961, which 

granted a stay of a preliminary injunction entered in that 

Court on April 9, 1962 (by Hon. J. Skelley Wright, District 

Judge), and reinstating the preliminary injunction of April 9, 

1962, In the alternative, plaintiffs move for an order modi- 

fying the stay of injunction by imposing terms and conditions 

necessary for the security of plaintiffs' rights, i, e., that 

the stay order be amended to expressly provide that the defend- 

ants must take all actions necessary in preparation for obed- 

ience to the injunction of April 9, 1962, at its effective 

date which is the opening of the school term in September, 1962, 

in order that the defendants will be able to obey said injunc- 

tion if it is in effect at that time, or that the Court impose 

such other terms and conditions as it may deem proper, Plain- 

tiffs submit the following, in support of their application, 



SUMMARY OF REASONS FOR GRANTING THE MOTION 

Plaintiffs' prayer raises one central issue; immediate 

action by this Court to vacate or modify the stay of the order 

to desegregate the first six grades of the Orleans Parish 

schools in September, 1962, is necessary to avoid complete 

frustration of that order. 

Defendants claim they must make preparations during the 

current term to enable them to assign students to various 

schools in the fall of this year. Plaintiffs, therefore, ask 

that any eventual order to desegregate resulting from the 

present litigation not be completely defeated because defend- 

ants are under no present obligation to begin preparations now 

for unsegregated assignments to enable them to carry out such 

an order. The issue is a simple one--defendants should not be 

permitted through their unnecessary request for delay to place 

themselves in a position where compliance with the order can 

be difficult or impossible. 

REASONS FOR GRANTING THE MOTION 

1. This school segregation case has been before the 

courts through prolonged and complicated litigation. Earlier 

opinions in this case are reported as indicated in footnote 

one of the opinion below dated April 3, 1962 (Exhibit No, 1, 

attached). The present proceedings result from motions filed 

by the plaintiffs and intervenors, Negro school children in 

New Orleans, seeking further injunctive relief upon assertions 

that the defendant Orleans Parish School Board has failed to 

comply with prior orders of the trial court with respect to 

desegregation of the public schools. On March 5, 1962, the 

District Court held a hearing at which it received oral testi- 

mony and documentary evidence submitted by all parties. After 

considering the evidence and briefs, the District Cot'rt on 

April 3, 1962, filed an opinion containing detailed discussion 



of the facts and law governing the case. A copy of this 

opinion is appended hereto as Exhibit No. 1. Thereafter, on 

April 9, 1962, this Court entered a preliminary injunction in 

accordance with the opinion, This injunction modified an 

earlier injunction entered May 16, 1960 (See opinion below, 

Note 3). A copy of the order of April 9, 1962, is attached 

hereto as Exhihit No, 2, 

2, In summary, the District Court's opinion of April 3, 

1962, found that the defendant school board had failed to file 

a plan of desegregation for the Orleans Parish schools as 

ordered by tha District Court on July 15, 1939, and did not 

contemplate submitting a desegregation plan; that the school 

board continues to maintain a dual system of segregated schools 

based on race, this being accomplished by dividing the City 

into separate Negro and white school attendance districts; 

that since September 1960, the defendant has not complied 

with the Court's desegregation order of May 16, 1960, which 

provided that all first grade children might "at their option" 

attend either the "formerly all white public schools nearest 

their homes or the formerly all negro schoois nearest their 

homes"; that instead of complying with the court's order, the 

board had pursued a special testing and screening program for 

first grade Negro pupils seeking to attend schools other than 

the ones to which they were assigned under the segregated sys- 

tem; and that under this pupil assignment program only four 

Negro first grade children out of 134 applicants were allowed 

to transfer to white schools nearest their homes during the 

1960-61 term, and eight Negro children of 66 applicants were 

allowed to transfer during the 1961-62 term, The Court con- 

cluded that the procedures follcwed by the dz=fendant in assign- 

ing pupils for ir: 1960-61 and 1961-62 school terms was not 

in compliance with the order of the Court and further said 

that: 



To assign children to a segregated school 
system and then require them to pass muster 
under a pupil placement law is discrimination 
in its rawest form. 

The Court also found that there was substantial inequality 

in the school facilities maintained for white and Negro child- 

ren by the defendants, particularly with regard to severe 

overcrowding in the Negro elementary schools, "platooning" 

(half day sessions) of Negro children, and the use of school 

building areas not planned for classroom use as classrcoms in 

the Negro schools. The Court said that: 

Even under the separate but equal test, these 
inequalities may not be maintzined. It would 
be unconscionable to comp2l Negroes, 67 years 

after Plessy v. Ferguson, supra, to continue 
to submit to these conditions. 

3, On or about April 17, 1962, defendant Orleans Parish 

School Board filed a "Motion For New Trial" asking that the 

Court set aside the preliminary injunction of April 9, 1962. 

This motion was originally noticed for h=aring on May 2, 1962, 

but was continued to May 8, 1962, A copy of the motion for 

new trial is attached hereto as:Exhibit No. 3, After filing 

the "Motion For New Trial," counsel for the defendant moved on 

April 24, 1962, before the Hon, Frank B, Eliis, District Judge, 

for a stay of the erder of April 9, 1962, perding disposition 

of the "Motion For New Trial." A copy of the motion for a 

stay is attached h:reto as Exhibit No, 4. The Court took the 

motion under advisament pending submission of briefs and, on 

May 1, 1962, entered an order granting the stay as requested. 

This stay order provided: 

This cause came on for hearing "in camera" 
with counsel for both parties present on a 
former dav on defendants! motion to stay the 
tenrorany injunction of April 9, 1962, pending 
disposition of their motion for a new trial. 

The court, having ~onsicered ihe hriefs 
and argutsent of counsel is ready *c zula, 

It is ordered thar the defendants® motion 
to stay the temporary injunction of April 9, 
1962, pending disposition of a motion for a 
new trial be, and the same is hereby granted, 
on the condition that this stay shall of no 
way affect the order of May 16, 1960, 

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Pending the hearing and study of a motion 
for a new trial on matters which this court as 
constituted is considering for the first time, 
a stay of the temporary injunction is deemed 
appropriate. F.R.C.P. 62(b)., This stay in no 
way reflects the ultimate disposition of the 
motion for a new trial. 

4, On May 2, 1962, plaintiffs filed a motion for an order 

vacating the stay and reinstating the preliminary injunction 

with Chief Judge Tuttle of this Court, Chief Judge Tuttle, 

denied this motion in an order observing that the motion for 

new trial in the District Court was to be heard on May 8, 1962, 

and that the denial was without prejudice to plaintiffs' right 

to renew the motion before the panel of this Court regularly 

convened for the week beginning May 14, 1962, The order by 

Chief Judge Tuttle stated inter alia: 

“In denying the motion at this time I do so 
without prejudice to the rights of the movants 
to present the matter to the next panel of the 
Court of Appeals for the Fifth Circuit which 
convenes in New Orleans on May 14, 1962," 

On May 8, 1962, the District Court heard arguments on the 

Motion for New Trial. On that occasion plaintiffs again orally 

urged that the preliminary injunction be reinstated for the 

reasons set forth herein, At the conclusion of the hearing 

the Court announced that it would take the motion to set aside 

the injunction and for new trial under advisement, and that the 

stay order issued May 1, 1962, would be continued in effect 

until the defendant®s motion was decided. The Court did not 

indicate when a decision might be expected. 

5. The grounds upon which the defendant sought and 

obtained a stay of the preliminary injunction were that during 

the pendency of the motion for a new trial and the anticipated 

time which might elapse before the motion for new trial is 

determined, and the additional time which might elapse 

if the motion is granted before the final decision on the 

merits of the action, after a new trial, the 



defendant would be irreparably harmed since during this period 

the defendant must now prepare for the registration, assignment 

and transfer of students for the September 1962 school term, 

The board asserted that it would not have sufficient time to 

properly prepare for the use of the pupil assignment procedures 

(which had been held invalid) for the next school year unless 

the stay was granted, The defendants! assertions in this 

regard are made in their memorandum in support of the motion 

for a stay, relevant portions of which arc quoted in ‘the margin 

welow, 

The defendants! own assericd justification for the stay 

(which is ithat unless they take action now, they will be unable 

to properly prepare for the assignment of students for Septem- 

ber 1962) demonstrates that the present stay order is actually 

a determination that the preliminary injunction will not be 

effective as of September 1962 in accordance with its terms. 

Thus the stay order amounts to a modification of the injunction 

by relieving defendants of their obligation to take present 

action which thev insist is necessary to prepare to obey the 

injunction, The stay order pestpones defendants' obligation 

L/ Defendants! Memorandum stated: 

"In the instant case, defendant has filed a motion for a 

new trial, and the hearing of said motion hes been set for 

May 8, 1962, it is reasonable to assume that the Court might 

take the motion under advisement after the hearing, It is 

also reasonable to assume that if a new trial is granted 

herein, there will be an additional lapse of time before the 

new trial is held, and a further lapse of time before a judg- 
ment is rendered afier the new trial. 

"In the interim, defendants mus: prepare for a new school 

term, which benins in September of i962, The current school 

term is drawinz to a close, and it is imperative that defend- 

ants make and carry out, without further delay, plans for the 

registration, assignment, and transfer of students for the 

September term. 

"It is a matter of common knowledge thet the parochial 

school system in the City of New Orleans has already conducted 

its registration for the coming term, 

"The record in the case at bar shows that the defendants 

adopted its procedure for the assignment, transfer and contin- 

vance of all pupils for the school year 1961-1962 on April 24, 

1961 (See Exhibit P-5), Since April 24, 1962 is now upon us, 
if the judgment previously entered herein is not stayed, defend- 

ants will not have sufficient time to properly prepare for the 
opening of school in September of this year." 

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to take preparatory steps necessary it~ carry out the injunction 

beyond the time within which such preparation must be completed 

if it is to be utilized to obey the order, Defendants have 

argued to the trial court that after the current school t
erm 

ends and the summer vacation period begins they will not have 

adequate personnel to carry out the assignment progmz
m they 

desire to undertake. Accepting this assertion, arguendo, it 

is apparent that the defendants! own argument indicates that 

the stay should be vacated. Defendants “'zve alreacy hagun to 

make preparations to use again the pupil assignment program and 

to limit desegregation to first grade students, both of whi
ch 

Judge Wright held imprecper in the order of April 9, 1962, This 

program, explained in the opini»>n of April 3, involves the 

initial assignment of pupils on she basis of separate Negro 

and white school zone maps at all grade levels, and then a four- 

step testing program and review of first grade transfer 
appli- 

cants undar the hcardls many tranefer standards, Defendants 

are now making preparations to repeat this procedure bas
ed upon 

the hope or expectation that the preliminary injunction of 

April 9th will be set aside permanently. They are doing 

nothing to prepare to obey the injunction if it is not set 

aside, Of course, it is the primary responsibility of the 

school authorities to determine the nature of the administra- 

tive arrangements necessary to obey the preliminary injunction,
 

including the mechanics of ascertaining which pupils desire to 

transfer and providing for their accommodation in the schools, 

The preliminary injunction specifies only that pupils be 

assigned in accordance with its terms at the beginning of the 

September 1962 term, It does not specify what preparatory 

activities must be taken for compliance. The detailed mechanics 

of preparation is left to the board. However, the board has 

asserted that it must now prepare to assign pupils in order 

to carry out the assignments in September, relating this matter 



to the summer vacation of the school system employees. The 

board has not stated precisely what it must do in order to pre- 

pare to obey the order, but it sought and obtained a stay pend- 

ing the motion for new trial in order to be relieved from 

making such preparations, and in order to be free to utilize 

the prior pupil placement procedures limited to firet grade 

pupils, 

Plaintiffs submit that the board should be required to 

arrange for ard accept transfer appli-ziicns of students in 

grades one to six, and to make such other preparations as they 

deem necessary to obey the order of April 9, 1962 at the begin- 

ning of the Sertemibexr 1962 school tern, The hezxd should not 

be permitted +c do rnthing, bu% follecw its old procedures, and 

thus place itself in position to latex claim unreadiness to 

obey the injunction of April 9, 1962, if it is upheld. 

6, The school board has made no showing or claim of any 

kind to demonstra:: irreparable harm to i% from being recuired 

merely to make preparations to obey the court's order pending 

decision of the motion for new trial, Even if the injunction 

is set aside, defendants can have suffered no harm by making 

such preparations, particularly since they have already begun 

preparing to follow their prior procedures without reference 

to the stay order. (Defendants had already announced that 

they would go ahead with preparations for following their 

prior pupil assignment practices even before the stay was 

granted.) The harm which plaintiffs would suffer if the in- 

junction is eventually sustained but its enforcement is frus- 

trated because defendants have been permitted to utilize the 

time obtained through the stay to render obedience more diffi- 

cult, is plain and substantial, By this means, plaintiffs 

would be deprived of enjoyment of their adjudicated rights 

even if they prevail on the merits. A temporary injunction 

will be restored pending further disposition where a defendant 

suffers no harm and considerable damage will result to the 



plaintiff, McBride v, We Union Tele Co. 78 F, Supp. 

a46, (S.D. Cal, 1948), 

In addition to an absence of irreparable harm emanating 

from preparations for compliance with the order of April 9, 1962, 

defendants proffer no reason why this Court should not impose 

such terms and conditions as it deems fi* on the continuance 

of the stay which will preserve the effzctiveness of any remedy 

ultimately secured #“o plaintiffs in his litigation. The stay 

pending motion for new trial is not »ciiasd to which defendants 

are entitled as a matter of right, but is discretionary with 

the court and designed to prevent inequities and, therefore, 

may be given "on suzh conditions as “he security of the adverse 

parties as are orogar," Customarily. courts »aquire posting 

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of bonds, es Salkeviczr vv, Blaze, 7 FBD 115 (D, Mass, 1946) 
PRE. TA tute we DoGZ0 )

]
 

where as a condition of stay pending motion for new trial the 

court required deposit of security in excess of the amount of 

judgment; and see Lapin v. LaMaur, 11 FRD 339 (D, Minn, 1951) 

where reasonable bond was required. In Foster v. Unitcd States, 

265 F,2d 183,189 (2d Cir. 1959) cert. den, 360 U.S. 912, the 

court as a conditicn of granting the stay required the moving 

party to waive application of the statute of limitations so 

that the cause would not abate pending the litigation, It is 

submitted that the balance of conveniences clearly requires 

that plaintiffs be granted relief, 

7. An examination of defendants! motion for a new trial 

reveals that it completely fails to state a basis for the 

relief requested since it s a patent attempt to relitigate old 

matter previously presented to and considered by the trial 

court. There is no claim of newly discovered evidence and the 

assertions that the judgment is contrary to the law and contrary 

to the facts are arguments which might be urged on appeal but 

are inappropriate basis for seeking new trial, There is clearly 

no basis for a claim that the trial court's opinion of April 3, 



1962, contained manifest or obvious errers of Jaw or fact which 

justify relitigation of the same issues of fact and law before 

the same court, The facets placed before the Court in conside- 

ering the request for preliminary injunction were uncontradicted, 

They consisted almost entirely of testimony by defendants 

employees and records from defendants files, The transcript 

of this March 5, 1962 hearing has been prepared, and plaintiffs 

will have it available to submit to ths Court at the hearing 

of this motion if it is desired by th: Court, The legal author- 

ities and precedents cited in the opinion of April 3rd amply 

support the conclusions reached therein, The Court may weigh 

the likelihood that the motion for a naw trial affords a sound 

basis for the relief prayed in determining whether a stay prop- 

erly might be granted pending that motion, Where, as here, the 

motion for new trial is obviously insufficient no stay should 

be granted and this court's discretion to vacate the stay should 

be exercised, 

8. This Court has power to vacate the stay and restore 

the injunction pending disposition of the motion for new trial 

or to impose conditions on the grant of the stay, under Title 

28 U.S.C. §1651 (the All-Writs Act). This is an appropriate 

occasion for the exercise of the power to restore an injunction 

under the All-Writs Act. Plaintiffs have made a plain and sub- 

stantial showing of irreparable harm to them if the stay is 

continued in effect, while defendants! interests would not be 

jeopardized by an order vacating the stay or imposing conditions 

to protect plaintiffs' rights, The harm to be suffered by 

plaintiffs from an improvident stay is irremediable, while any 

inconvenience to the defendant board in being required to pre- 

pare to obey the preliminary injunction would not be irrepar- 

able if it were later determined that the preliminary injunc- 

tion should be set aside, Immediate relief for plaintiffs is 

necessary at this time lest the passage of time destroy any 

opportunity plaintiffs might have to enjoy the benefits of the 

“ JO = 



preliminary injunction, Plaintiffs have no other plain and 

adequate remedy to protect their rights other than this motion, 

The power of the Court of Appeals or a judge thereof to 

grant a preliminary injunction or a temporary restraining order 

where extraordinary circumstances necessitate it to prevent 

irreparable harm is clearly established. Cf. Aaron v, Cooper, 

261 F.2d 97, 101-102, note 1 (8th Cir, 1958) (two judges of 

Court of Appeals issued temporary restraining order without 

notice, and full panel issued preliminary injunction, to prevent 

thwarting of a school desegregation order) , Movants case here 

is even stronger than that of a party seeking injunctive relief 

pending appeal, as in the last-mentioned case, since in this 

case movants have made an uncontroverted showing of violation 

of their constitutional rights which was sufficient to satisfy 

the only Court that has decided ‘the matter on the merits that 

a preliminary injunction should be granted. That order has 

been stayed without reference to the merits, as the Court which 

granted the stay stated that it was pot expressing a view on 

the merits, In these circumstances plaintiffs submit that the 

stay was improvident and that the relief prayed in this motion 

should be granted so that their rights under the preliminary 

injunction may be protected during the pendency of the motions 

in the trial court to set aside the preliminary injunction, 

Respectfully submitted, 

James M, Nabrit, III 
Jack Greenberg 
Constance Baker Motley 

10 Columbus Circle 
New York 19, New York 

A. P., Tureaud 
Erznest Morial 
A, M, Trudeau 

1821 Orleans Avenue 
New Orleans, Louisiana 

Attorneys for Movants 

“11 = 



CERTIFICATE OF SERVICE 

I hereby certify that on this the day of 

May 1962, I served a copy of the foregoing motion and attached 

exhibits on Samuel I. Rosenberg, Esq., counsel for the Orleans 

Parish School Board, 747 National Bank of Commerce Building, 

New Orleans 12, Louisiana, [by mailing a copy addressed as 

indicated above via the United States Mail, postage prepaid] 

[by delivering same personally to a clerk in his office]. 

Of Counsel for Movants 

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Exhibit No, 1 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
NEW ORLEANS DIVISION 

aii Ll le Ol hh EE SU 

EARL BENJAMIN BUSH, et al, 

Plaintiffs 

versus 

ORLEANS PARISH SCHOOL BOARD, et al. 
CIVIL ACTION 

Defendants 

CONNIE REED, a minor, by Gerald Rener, 
her guardian and next friend, et al. 

Plaintiff-Intervenors 

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He HoH He HHI He HH He He Fee I He FHI HHH HH HRA HHH HN He He HNN 

Jack Greenberg 
A, P. Tureaud 
Ernest N, Morial 
James M, Nabrit, III 

Attorneys for Plaintiffs and Plaintiff- 
Intervenors 

Samuel I, Rosenberg 

Attorney for Orleans Parish School Board 

WRIGHT, District Judge: 

Plaintiffs, now supported by 101 additional intervenors, 

petition this court for further relief in this long pending liti- 

WT The further relief requested is based on plaintiffs’ 

allegations that the defendant, Orleans Parish School Board, has 

not complied with this court's order of May 16, 1960, with respect 

to desegregation of the public schools of New Orleans, In addition, 

they maintain that the segregated schools operated for negroes by 

the Board cannot pass the separate but equal test of Plessy v, 

Ferguson, 163 U.S. 537. 

lFor the prior history of this litigation, see Bush v. 
Orleans Parish School Board, E.D. La,, 138 F, Supp. 
337, affirmed, 5 Cir., 242 F.2d 156; id., 163 F. Supp. 
701, affirmed, 5 Cir., 268 F.2d 78; id., 187 F, Supp. 
42, affirmed, 365 U.S. 569; id., 188 F, Supp. 916, 
affirmed, 365 U.S, 569; id., 190 F. Supp. 861, affirmed, 
365 U,S. 569; id., 191 F, Supp. 871, affirmed, 367 U.S 

a 

908; id., 194 F, ‘Supp. 182, affirmed, 963 Mole Fyre 



On May 16, 1960, when the defendant failed to file a 

2 plan of desegregation“ of the Orleans Parish schools as ordered 

by this court, this court filed one. The court's plan simply 

provides that beginning September, 1960, all children entering 

the first grade may attend either the formerly all white public 

schools nearest their homes or the formerly all negro schools 

nearest their homes, at their option, There is a further provision 

for transfers not based on consideration of race.’ 

The Orleans Parish School Board maintains a dual system 

of segregated schools based on race.” This segregation is accom~ 

plished by dividing the city geographically into negro school 

districts and white school districts based upon the residence and 

race of the children attending such schools. On the opening of 

school in September, 1960, instead of complying with the court's 

desegregation order, the Board announced a testing program for 

any first grade child electing a school other than the one to 

which he would be automatically assigned under the Board's segre- 

gated system,® This program involved four steps consisting of 

20n February 15, 1956, this court ordered the School Board 
to desegregate the Orleans Parish public schools "with 
all deliberate speed." On July 15, 1959, after no action 
in compliance had been taken, the Board was ordered to 
file a desegregation plan. To date no Board plan has 
been filed and it was admitted at the hearing that sub- 
mission of a plan is not in contemplation. This court 
will, therefore, continue to order desegregation on an 
ad hoc basis until an acceptable plan for integration of 
the Orleans Parish schools is forthcoming. 

3The order reads: 

"IT IS ORDERED that beginning with the opening of school 
in September, 1960, all public schools in the City of 
New Orleans shall be desegregated in accordance with 
the following plan: 

"A, All children entering the first grade may attend 
either the formerly all white public school nearest 
their homes, or the formerly all negro public school 
nearest their homes, at their option. 

"B, Children may be transferred from one school to 
another, provided such transfers are not based on 
consideration of race." 

4Enrollment in the Orleans Parish schools as of October 18, 
1961, is as follows: White 37,845; Negro 55,820. 

SThis testing program was promulgated pursuant to the 
Louisiana Pupil Placement Act. La.R.,S, 17:101 et seq. 
The constitutionality of the Act is not attacked in 
these proceedings. 

OThe testing program applied only to the first grade and 
there only to children requesting "transfer," 

“wh . 



(1) a review of the "transfer" application form and verification 

of the information contained therein, (2) testing of the petition- 

ing pupils to determine "scholastic aptitude," "intelligence or 

ability" and "adequacy of pupil's academic preparation or readi- 

ness for admission to school or curricula," (3) "test interpreta- 

tion and personal evaluation to consider" ten listed criteria 

relating generally to education, psychology, home environment and 

health, and (4) a "general administrative review and preparation 

of recommendation to Orleans Parish School Board to consider" all 

of the information collected, the "choice and interests" of pupil, 

as well as the possibility or threat of friction or disorder among 

pupils or others, and the possibility of breach of peace or ill 

will or economic retaliation within the community.’ The bulletin 

announcing the program further provides that pupils permitted to 

transfer under these pRocidures and criteria "may be reassigned 

to the school to which they are assigned by virtue of their place 

of residence by order of the Orleans Parish School Board if they 

do not make satisfactory adjustment to the newly assigned situa- 

tion,"8 The announcement further requires the separation of 

pupils by sex in each class desegregated under this program. 

An analysis of the test program demonstrates that the 

Board, instead of allowing children entering the first grade to 

make an election as to the schools they would attend, assigned 

all children to the racially segregated schools in their residen- 

tial areas. Then, after being so assigned, each child wishing to 

"While these broad criteria were upheld as valid elements 
of a pupil placement law, Shuttlesworth v, Birmingham 

Board of Education, N.D. Ala,, 162 F, Supp. 372, affirmed, 
358 U,S. 101, the application of such criteria to deny 
admittance or transfer on the ground of potential racial 
disturbance would be improper. Cooper v. Aaron, 358 U.S, 
1, 16. See Buchanan v, Warley, 245 U,S. 60, 81, 

BThis portion of the program in effect "repeals" the statu- 
tory criteria since it leaves ultimate pupil assignment 
in the unfettered discretion of the Board. This absence 
of permissible standards for placement sealed the fate 
of Louisiana's first pupil placement law. Bush v, Orleans 
Parish School Board, E.D. La., 138 F, Supp. 337, 341, 
affirmed, 5 Cir., 242 F. 2d 156." See Thompson v. County 
School Board of Arlington County, E. D, Vas, 159 F. Supp. 
567, affirmed, 4 Cir., 252 F.2d 929, 



exercise his right to elect pursuant to the court's plan of desegre- 

gation was subjected to the testing program, No children other 

than first grade were required to take the tests, Pursuant to 

this testing program, four negro first grade children out of 134 

applicants were allowed to "transfer" to the white schools nearest 

their homes during the school year 1960-61, and eight negro 

children of 66 applying successfully overcame the hurdles of the 

1961-62 testing program. Consequently, 12 of the 13,000-odd negro 

children entering the first grade in the years 1960-61 and 1961-62 

were admitted to and are attending "white" schools, 

The Board maintains that it was justified in applying 

the pupil placement law to the desegregation order of this court 

in an effort to make certain that the children applying to "trans- 

fer" were intellectually and psychologically acceptable in the 

schools they sought to attend. The Board makes no explanation 

for its failure to test all children seeking to enter the first 

grade, or any other grade, in an effort to determine whether or 

not they were intellectually. and psychologically acceptable in 

the segregated schools to which they were automatically assigned. 

This failure to test all pupils is the constitutional vice in 

the Board's testing program. However valid a pupil placement act 

may be on its face, it may not be selectively Sopticd, Moreover, 

where a school system is searegated,’® there is no constitutional 

basis whatever for using a pupil placement law, 11 A pupil place- 

ment law may only be validly applied in an integrated school 

The admission of thirteen Negro pupils, after a scholastic 
test, which the white children did not have to take, out of 
thirty-eight who made application for transfer, is not 
desegregation, nor is it the institution of a plan for non- 
racial organization of the Memphis school system," 
Larhanteeg, et Bk v, Bd, of Educ,, et al., 6 Cir., 
F.ad_____ (2/23/62), p. 10, sis opinion. See also 

n v. Bo blic Instruction, 5 Cir., 277 F.2d 
370, 374; Jones v. School Board of City of Alexandria, 

, 4 Cir,, 278F.2d 72, 77; Dove v. Parham, 8 Cir,, 
282 F.2d 256, 258. 

10uopviously the maintenance of a dual system of attendance 
areas based on race offends the constitutional rights of 
the plaintiffs and others similarly situated and cannot 
be tolerated, ¥* * * ¥ In order that there may be no doubt 
about the matter, the enforced maintenance of such a dual 
system is here specifically condemned," Jo 

i A ia, Virginia, supra, 76. 

llcompare 
County, 5 Cir,, 246 F.2d 913, 914; id., 272 F.2d 763, 767. 

- 



system, and then only where no consideration is based on Paces 

To assign children to a segregated school system and then require 

them to pass muster under a pupil placement law is discrimination 

in its rawest form. 

The plaintiffs, together with intervenors, also complain 

of the crowded conditions in the defendant's negro schools, as 

compared to the white, The evidence shows that 35,540 negro elemen- 

tary school children are on platoon, but no white. The evidence 

shows further that the average class size in the negro elementary 

13 that the schools is 38.3 pupils compared to 28.7 in the white, 

pupil-teacher ration in the elementary schools is 36.0 to 1 for 

negro, 26.1 to 1 for white, and that negro classes are conducted 

in classrooms converted from stages, custodians! guatters, libraries 

and teachers! lounge rooms, while similar classroom conditions do 

not exist in the white schools, Even under the separate but equal 

test, these inequalities may not be maintained, It would be 

unconscionable to compel negroes, 67 years after Plessy v, Ferguson, 

supra, to continue to submit to these conditions, 

The Board states that in the next two or three years, 

when its present building program is completed, most of the pla- 

tooning and the crowded conditions in the negro schools will be 

eliminated. But the Board!s projection gives no facts or figures, 

12nThe Pupil Assignment Law might serve some purpose in the 
administration of a school system but it will not serve 
as a plan to convert a biracial system into a non-racial 
one." Northcross. et al, v. Bd, of Educ, . et al., supra, 
p. 6, slip opinion, See also id., p. 8: "Since that 
decision [Brown v, Board of Education, 347 U.S, 483], 
there cannot be 'Negro' schools and 'white'! schools, 
There can now be only schools, requirements for admission 
to which must be on an equal basis without regard to race." 

13The maximum class size for elementary schools prescribed by 
the Louisiana State Board of Education is 35 pupils, As of 
October 18, 1961, in the white elementary schools 7.4 per 
cent of the regular classes had over 36 pupils, while in 
the negro elementary schools 75.6 per cent of the classes 
had over 36 pupils, 

l45ee Sweatt v, Painter, 339 U.S, 629; Wilson v, Board of 
SUReIViSOrs, E.D. La.,, 92 F, Supp. 986, affirmed, 340 U.S. 

9. 



nor does it make allowance for the increase in the school popula- 

tion to be anticipated, based on the current birth rate. The 

Board also suggests that in two successive elections property 

owners of New Orleans have voted down proposals for tax increases 

to defray the increased cost of operating the public schools in 

New Orleans, and that this failure has caused the crowded condi- 

tions in the negro schools. Whether New Orleans will have adequate 

public schools is, of course, the responsibility of her taxpayers. 

But’ whatever is provided, inadequate as it is, must at least be 

made available on an equal basis to all school children, 

Generations of negroes have already been denied their 

rights under the separate but equal doctrine of Plessy v. Ferguson, 

supra, and, at the present pace in New Orleans, generations of 

negroes yet unborn will suffer a similar fate with respect to their 

rights under Brown unless desegregation and equal protection are 

secured for them by this court. 

The School Board here occupies an unenviable position, 

Its members, elected to serve without pay, have sought conscien- 

tiously, albeit reluctantly, to comply with the law on order of 

this court. Their reward for this service has been economic 

reprisal and personal recrimination from many of their constituents 

who have allowed hate to overcome their better judgment. But the 

plight of the Board cannot affect the rights of school children 

whose skin color is no choice of their own. These children have 

a right to accept the constitutional promise of equality before 

the law, an equality we profess to all the world. 

IT IS ORDERED that the order of this court dated May 16, 

1960, be, and the same is hereby, amended to read as follows: 

(A) Beginning with the opening of school in September, 

1962, all children entering, or presently enrolled in, 

the public elementary schools of New Orleans, grades 1 

through 6, may attend either the formerly all white 

public schools nearest their homes or the formerly all 

negro public schools nearest their homes, at their 

option. 



(B) Children may be transferred from one school to 

another, provided such transfers are not based on con- 

siderations of race. 

(C) As long as the defendant, Orleans Parish School 

Board, operates a dual school system based on racial 

segregation, the Louisiana Pupil Placement Act shall 

not be applied to any pupil, 

Injunction to be drafted by the court. 

s/ J. Skelley Wright 

UNITED STATES DISTRICT JUDGE 

New Orleans, Louisiana 

April 3, 1962 



Exhibit No, 2 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
NEW ORLEANS DIVISION 

Hee He He HI HI HN HHH HK HHH HHH XXX HW K AX RWXH HHH XR RAXXRXXXX 

EARL BENJAMIN BUSH, et al., 

Plaintiffs 

Versus 

ORLEANS PARISH SCHOOL BOARD, et al., 
No. 3630-B 

Defendants 
| CIVIL ACTION 

CONNIE REED, a minor, by Gerald Rener, 
her guardian and next friend, et al., 

Plaintiff-Intervenors 

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TEMPORARY INJUNCT ION 

This case came on for hearing on plaintiffs' and intervenors' 

motion for further relief and temporary injunction. 

It being the opinion of the court that plaintiffs and intervenors 

are entitled to further relief; 

It is ORDERED that the motion to intervene be, and the same is 

hereby, GRANTED, 

It is further Ordered that the Orleans Parish School Board, its 

agents, representatives, attorneys, and all other persons who are 

acting or may act in concert with them, be, and they are hereby, 

restrained, enjoined and prohibited from assigning pupils in any 

manner inconsistent with the following plan: 

(A) Beginning with the opening of school in September, 1962, all 

children entering, or presently enrolled in, the public elementary 

schools of New Crleans, grades 1 through 6, may attend either the 

formerly all-white public schools nearest their homes, or the formerly 
1/ 

all negro public schools nearest their homes at their option. 

l/ This means that each child entering or attending grades 1 
through 6 may elect to go to either the white school in his 
or her residence district or the negro school in his or her 
residence district as shown on the defendant's maps of the 
City of New Orleans outlining the school district for each 
race. 



(B) Children may be transferred from one school to another 

provided such transfers are not based on considerations of race. 

(C) As long as the defendant, Orleans Parish School Board, 

operates a dual system based on racial segregation, the Louisiana 

Pupil Placement Act shall not be applied to any pupil. 

/s/ J, Skelley Wright 
UNITED STATES DISTRICT JUDGE 

New Orleans, La, 
April 9, 1962 



Exhibit No. 3 

UNIT TATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION 

EARL BENJAMIN BUSH, ET AL., 
PLAINTIFFS, 

VS. 

ORLEANS PARISH SCHOOL BOARD, 
ET AL., 

CIVIL ACTION 

DEFENDANTS, NO. 3630-B 

CONNIE REED, ET AL., 
PLAINTIFF ~-INTERVENORS 

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BREE EARERRE RD 4+ ssstsrssesstsnsessssansediggitgryyl
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MOTION FOR NEW TRI 
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Defendant, Orleans Parish School Board, moves the Court to set 

aside the temporary injunction entered herein on the 9th day of April, 

1962, and to grant defendant a new trial, on the grounds that: 

1. The judgment is contrary to law, in that: 

(a) The Orleans Parish School Board has made a 

prompt and reasonable start toward full com- 

pliance with the May 17, 1954 ruling of the 

United States Supreme Court, and this Court 

may, and should, find that additional time is 

necessary to carry out the ruling in an ef- 

fective manner, 

(b) It is not true that during the period of 

transition to a racially non-discriminatory 

school system, the Louisiana Pupil Placement 

Law (R.S. 17:101) may "only be validly applied 

in an integrated school system," (Opinion, p. 4) 

(c) No plaintiff, or plaintiff-intervenor, has 

exhausted the administrative remedies provided 

for in Louisiana Act 492 of 1960, (R.S. 17:101, 

et seq.), nor have any of them exercised the 

option given to them in earlier orders of this 

Court to attend "...either the formerly all 

white public school nearest their home, or the 



- Page 2 =~ 

formerly all negro public school nearest their 

home..."; and the pleadings do not allege that 

they have so done. 

(d) No pupil, whose application for transfer was 

denied, has filed, in writing, with the Orleans 

Parish School Board objections to the assignment 

of the pupil to a particular school, or has re- 

quested by petition, in writing, assignment or 

transfer to a designated school, or to another 

school to be designated by the Board, all as is 

provided for in R.S, 17:106; and no such pupil 

appears as either plaintiff, or plaintiff-intervenor. 

(e) The constitutionality of Louisiana Act 492 of 1960 

is not here attacked (See fn. 5 of opinion). Its 

provisions are therefore binding upon defendants, 

plaintiffs, plaintiff-intervenors, and the Court; 

and injunctive relief can be granted only to those 

who allege, and prove, that they have exhausted the 

administrative remedies set forth in the statute, 

and the rights which they claim must be asserted 

as individuals, and not as a class or group. 

(f) It is not a proper functicn of this Court to secure 

desegregation for "generations of negroes yet un- 

born" (Opinion, p. 6). NOthing in the United States 

Constitution or in Brown v. Topeka gives to a child 

the right to attend a school of his choice solely 

because of his race. The simple requirement is that 

no child shall be denied admission to a school of his 

choice on the basis of race or color. The constitu- 

tion does not require desegregation, it merely forbids 

discrimination. 



- Page 3 ~- 

2. The judgment is contrary to fact, in that, it is based 

largely upon a finding that school facilities for negroes are unequal 

to those for whites. he findings are erroneous in the following 

respects: 

(a) 

(b) 

(c) 

(d) 

While some few "negro classes are conducted in 

classrooms converted from stages, custodians' 

quarters, libraries and teachers' lounge rooms," 

similar classroom conditions exist in the white 

schools: (Opinion; p. 5) 

When the present building program of the Orleans 

Parish School Board is completedy all platooning 

in negro schools will be eliminated, even after | 

making allowance for the increase in the school 

population to be anticipated, based on the current 

birth race. (Opinion, p. 5) 

A vast preponderance of building funds spent in 

the last ten (10) years have been for negro schools 

(Exhibit OPSB__3__). 

Ten Million ($10,000,000,.00) Dollars of Orleans 

Parish School Bonds were delivered on April 4, 1962; 

and this enabled Defendant to begin its current 

construction program. On April 9, 1962 Defendant 

awarded a construction contract for the construction 

of twenty (20) additional classrooms at the Woton 

School and twenty (20) additional classrooms at 

the Dunn School; and in addition, Defendant authorized 

the construction of sixty-four (64) portable classrooms. 

The bulk of the funds available for the current 

construction program of the defendant is already 

earmarked for construction which will eliminate the 

inequalities complained of. 



- Page 4 ~- 

3. The Court erred in enjoining the Orleans Parish School 

Board, et als., from assigning pupils in any manner inconsistent 

with the plan set forth by the Court, in that: 

(a) School authorities have the primary responsibility 

for elucidating, assessing, and solving, varied 

local school problems. In assuming this responsi- 

bility, the Court has stripped Defendant of its 

administrative powers, and allows each child in 

the system to decide which school he will attend. 

(b) The plan requires the present non-segregated admission 

of all negro children, whether qualified or not, on 

the theory that this is a guaranteed constitutional 

right, but the United States Supreme Court has held 

that a District Court might conclude that justifica- 

tion exists for not requiring the present non- 

segregated admission of even qualified negro children. 

(c) Its order seeks to require the desegregation of 

all six elementary grades in one fell swoop, and 

prohibits the use of the Louisiana Pupil Placement 

Law during the transitional period. No other School 

Board in the deep South has been ordered to take 

such drastic, sweeping, sudden action, and the Court 

of Appeals for the Fifth Circuit reversed a similar 

order issued to the Dallas School Board and ordered 

the District Court to accord school authorities a 

reasonable further opportunity to promptly meet 

their primary responsibility in the premises. 

(d) The plan handed down by the Court is impractical, 

and is virtually impossible to comply with, If 

school children are permitted to go to schools of 



- Page 5 - 

their choice, without regard to attendance areas, 

distances, school bus routings and other pertinent 

factors, some of the schools would be crowded be=- 

yond their capacity and others would be practically 

vacant. 

WHEREFORE, Defendant prays that the above Motion be granted. 

Samuel I, Rosenberg 
ttorney for the Orleans Parish School 

Board 
747 National Bank of Commerce Building 
New Orleans 12, Louisiana 
JAckson 2-5128, 



Exhibit No. 4 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION 

r
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EARL BENJAMIN BUSH, ET AL., 
PLAINTIFFS, 

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VS. 

ORLEANS PARISH SCHOOL BOARD, : CIVIL ACTION 
ET AL.) : 

DEFENDANTS, NO. 3630-B 

GERALD RENER, HER GUARDIAN 
AND NEXT FRIEND, ET ALS,, 

PLAINTIFF-INTERVENORS. 
223343320323 ¢3212'¢20000392 

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CONNIE REED, A MINOR BY : 

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MOTION FOR STAY OF EXECUTION PENDING DISPOSITION OF MOTION FOR 
NEW TRIAL 

Defendant, Orleans Parish School Board, moves the Court 

for an order staying execution of, or anv proceedings to enforce, 

the judgment entered in favor of plaintiffs and plaintiff-intervenors 

herein, on April 9, 1962, pending disposition of defendants' motion 

for a new trial, on the ground that irreparable injury might other- 

wise result to defendant. 

Samuel I. Rosenberg 
Attorney for Orleans Parish School 
Board, 
747 National Bank @f Commerce Building 
New Orleans 12, Louisiana 
JAckson 2-5128. 

[Defendants' Proposed Order Omitted]