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Brief Collection, LDF Court Filings. St. Helena Parish School Board v. Hall Jurisdictional Statement on Behalf of Appellants, 1961. 87fca0ed-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a9f3bc96-c754-45d3-8183-9809ea859e53/st-helena-parish-school-board-v-hall-jurisdictional-statement-on-behalf-of-appellants. Accessed July 02, 2025.
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October Term 1961
St. H elena Parish School Board, E t Al,
Appellants
v.
Lawrence Hall, E t Al, Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana,
Baton Rouge Division
JURISDICTIONAL STATEMENT
ON BEHALF OF APPELLANTS.
Of Counsel:
CARROLL BUCK,
M. E. CULLIGAN,
GEORGE M. PONDER,
JOHN E. JACKSON, JR.,
WILLIAM P. SCHULER,
DOROTHY WOLBRETTE,
L. K. CLEMENT, JR.
HARRY J. KRON, JR.,
Assistant Attorneys General.
ALBIN P. LASSITER,
District Attorney,
4-th Judicial District,
State of Louisiana.
THOMPSON L. CLARKE,
District Attorney,
6th Judicial District,
State of Louisiana.
LOUIS H. PADGETT, JR.,
District Attorney,
26th Judicial District,
State of Louisiana.
JACK P. F. GREMILLION,
Attorney General,
State of Louisiana.
DUNCAN S. KEMP,
District Attorney,
21st Judicial District,
State of Louisiana.
W. SCOTT WILKINSON,
Special Assistant
Attorney General.
VICTOR A. SACHSE,
Special Assistant
Attorney General.
1
SUBJECT INDEX
STATEMENT AS TO JURISDICTION............... 1
OPINION BELOW ................................................ 2
JURISDICTION ..................................................... 2
STATUTES INVOLVED ...................................... 2
QUESTIONS PRESENTED .................................. 3
STATEMENT OF THE CASE ............................ 4
THE QUESTIONS PRESENTED ARE
SUBSTANTIAL .............................................. 9
CONCLUSION ....................................................... 29
PROOF OF SERVICE .......................................... 30
APPENDIX “A” ..................................................... 31
APPENDIX “B” ............................... 61
APPENDIX “C” ................ 70
Authorities Cited:
A
Aaron v. Cooper, 261 F. 2d 97...... 12
Aerated Products Co. of Philadelphia, Pa. v. Dept,
of Health of New Jersey, et al, 159 Fed. 2d
851 .................................................................... 10
Ashwander v. Tennessee Valley Authority, 297
U.S. 288, (concurring opinion)....................... 27
Avery v. Wichita Falls Independent School Dis
trict, 241 Fed. 2d 230, cert, denied, 353 U.S.
938 .................................................................... 22
Page
11
B
Baldwin v. G.A.P. Seelig, 294 U.S. 511.............. 10
Barrows v. Jackson, 346 U.S. 249......................... 27
Blackmar v. Guerre, 342 U.S. 512......................... 11
Blackmer v. U.S., 284 U.S. 421......... ................... 26
Borders v. Rippey, 247 Fed. 2d. 268 (C.A. 5th
1960) ................................................................ 22
Briggs v. Elliott, 132 F. Supp. 776...... ............ . 21
Butler v. Commonwealth of Pennsylvania, 10
How. 402 ........................................................ 9
C
Calhoun v. Bd. of Ed. of Atlanta, 188 F. Supp.
401 (D.C. Ga., 1959)..................... 22
Carmichael v. Southern Coal & Coke Co., 301 U. S.
495 .................................................................... 26
City of Montgomery v. Gilmore, 277 F. 2d 364.... 17
Civil Rights Cases, 109 U.S. 3................................ 28
Collins v. State of Texas, 223 U.S. 288........ ..... . 26
Crenshaw v. U.S., 134 U.S. 99............................ 9
Charlottesville v. Allen, 240 Fed. 2d 59............... 10
D
Dodge v. Board of Education of Chicago, 302 U.S.
74 ..................... 9
Dove v. Parham, 176 F. Supp. 242, 271, Fed. 2d
132 .................................................................... 24
Page
I l l
Page
Dove v. Parham, 181 F. Supp. 504 (D.C. Ark.,
I960) ........... ......... .......................................... 22
Downs v. Boonton, 99 N.J. Law 40, 122 A. 721__ 21
E
Everson v. Board of Education of Ewing Tp., 330
U.S. 1 ...... ...... ....... ....... ................................. 23
F
Ford Motor Co. v. Department of Treasury of
State of Ind., 323 U.S. 459..... ............... ..... 10
G
Georgia RR & Banking Co. v. Redwine, 342 U.S.
299 ...... i i
Greensboro v. Tonkins, 276 Fed. 2d 890...... ........ 15
H
Hans v. St. of La., 134 U.S. 1................................ 10
Harrison v. Day, 1959, 200 Va. 439, 106 S.E. 2d
636 ....................................................... 17
Heald v. Dist. of Columbia, 259 U.S. 114.......... 26
Henry v. Godsell, et al, 165 F. Supp. 87 (D.C.
Mich., 1958) .................................................. 22
Herrin v. Farm Security Adm., 153 Fed. 2d 76..... 11
Higginbotham v. City of Baton Rouge, 306 U.S.
535 .................................................................... 9
Holland v. Bd. of Pub. Instruction, 258 F. 2d
730 (C.A. 5th, 1958)........................................ 22
IV
Hughes v. Caddo Parish School Bd., et al, 57 F.
Page
Supp. 508, affirmed 323 U.S., 685.... .......... 17
I
In re School Code of 1919, 7 Boyce 406, 108 Atl.
39 ...................................................................... 20
J
James v. Almond, 170 F. Supp. 331...........13 & 17
James v. Duckworth, 170 F. Supp. 342...... .......... 17
Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571............. 27
K
Kee v. Parks, 153 Tenn. 306, 283 S.W. 751........... 20
Kelley v. Bd. of Ed. of Nashville, 270 F. 2d 209
(C.A. 6th, 1959) cert, denied, 361 U.S. 924.. 22
L
Larson v. Domestic & Foreign Corp., 337 U.S.
682 .................................................................... 10
Liverpool, N. Y. & Phila. S.S. Co. v. Comm, of Im
migration, 113 U.S. 33............. ..... .... ...... ..... 26
Lloyd v. Dollison, 194 U.S. 445............................ 19
M
Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60.. 25
Montgomery v. Gilmore, 277 Fed. 2d 364 (C.A.
5th 1960) ............................................... 17 & 23
N
New Haven Public Schools v. General Services Ad
ministration, 214 Fed. 2d 592...................... 11
V
Page
Noah, et al, v. Bd. of Ed., District of Columbia,
106 F. Supp. 988...................... ............ .......... 10
North Dakota-Montana Wheat Growers’ Associ
ation v. U.S., 66 Fed. 2d 573, cert, denied,
291 U.S. 672........................... ........................ 11
O
Ohio v. Dollison, 194 U.S. 445................................ 21
P
Parker v. Bd. of Ed. of Sumter County, 70 S.E.
2d 369 (Ga.) ....... .... ......................... ... ........ 10
People v. Cowen, 283 111. 308, 119 N.E. 335,
(1918) ................... 20
People of State of New York, ex rel Hatch v.
Reardon 204 U.S. 152...... 26
Phelps v. Bd. of Ed., 300 U.S. 319........................ 9
R
Rippey v. State of Texas, 193 U.S. 504....... ......... 19
Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50 26
S
Salzburg v. State of Maryland, 346 U.S. 545......... 15
School Board of Charlottesville v. Allen, 240 F. 2d
59 (C.A. 4th, 1956) Cert, denied, 77 S. Ct.
667 .................................................... 22
Smith v. Hefner, 68 S.E. 2d 783 (N.C.) _______ 10
Snowden v. Hughes, 321 U.S. 1............................ - 9
VI
Page
State v. Baxter, 195 Wis. 437, 219 N.W. 858..... 21
State v. Briggs, 46 Utah 288, 146 Pac. 261-... 21
State v. Lamont, 105 Kan. 134, 181 Pae. 617____ 20
Stephan v. Louisiana Board of Education, 78 So.
2d 18 ..................................................... .......... 10
T
Thomason v. Works Progress Administration, 138
F. 2d 342 ..... ................ ................... ..... ........ 11
Thompson v. School Board of Arlington, 144 F.
Supp. 239 (D.C. Va. 1956)................. ..... . 22
Tyler v. Judges of Court of Registration, 179 U.S.
405 .............................................................. 27
U
United States v. Raines, 362 U.S. 17............ ........ 27
United States Department of Agriculture, et al,
v. Hunter, et al, 171 Fed. 2d 793.................. 10
United States Department of Agriculture v. Re-
mund, 330 U.S. 539........ 11
United States v. Wurzbach, 280 U.S. 396.............. 26
V
Virginian Railway Co. v. System Fed., 300 U.S.
515 .................................................................... 26
Voeller v. Neilston Wholesale Co., 311 U.S. 531. 26
Y
Yazoo & Mississippi Valley Railway Co. v. Jack-
son Vinegar Co., 226 U.S. 217...................... 26
Constitutional Provisions
La. Const, of 1921, Art. 19, Sec. 26, Amend. 11,
U.S. Const.............................................. .......... 10
La. Const, of 1921, Art. 12, Sec. 1...................... 10
11th Amend., United States Constitution ........ 10
14th Amend., United States Constitution............ 18
Statutes
28 USC 501.................................................... 10
28 USC 507........................................... 10
Bill H.R. 6128, 85th Congress (original), Pages
9 and 10.................................................... ...... 10
N.C. Private Laws, 1923, Ch. 37, Sec. 79.......... 16
N.C. Sess. Laws, 1957, Ch. 960, Sec. 4............... 16
28 USC 1331........................................................... 2
28 USC 1343........................................................... 2
28 USC 2281.......................................................2 & 5
28 USC 2284................................................. ..... 2 & 5
28 USC 2201....... 2
28 USC 2202........................................................... 2
28 USC 1253................................................. 2
Act 2, Second Extraordinary Session of the Loui
siana Legislature of 1961_____ 4 & 5 & 7 & 8
Act 258 of 1958..................................................... 6
Vll
Page
Vlll
Page
Miscellaneous
16 C.J.S. Const. Law, Sec. 142, Page 683............. 20
16A C.J.S. Sec. 505, Page 314.............................. 13
16A C.J.S., Sec. 6, 512, Page 358....... ................... 19
Congressional Record of 1957, Pages 11377 and
11378 ..................................... ........... ............. . 10
Harvard Law Review, Vol. 72, Page 1567............ 16
Index, Digest of State Constitutions, Page 390..... 19
School Code of 1919, 7 Boyce 406, 108 Atl. 39..... 20
No.
Jn iht
i>nprp!HF dmjri of tfjr Mnitpfc States
October Term 1961
St. Helena Parish School Board, E t Al ,
Appellants
v.
Lawrence Hall, E t Al, Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana,
Baton Rouge Division
JURISDICTIONAL STATEMENT
ON BEHALF OF APPELLANTS.
JURISDICTIONAL STATEMENT
Appellants, St. Helena Parish School Board,
J. L. Meadows, Superintendent of the St. Helena
Parish School Board, State of Louisiana, Jack P. P.
Gremillion, Attorney General of Louisiana, Murphy
J. Roden, Director of Public Safety of Louisiana,
Duncan S. Kemp, District Attorney of St. Helena
Parish, Louisiana, and R. D. Bridges, Sheriff of
St. Helena Parish, State of Louisiana, appeal from the
judgment of the United States District Court for
the Eastern District of Louisiana, Baton Rouge Divi
sion, sitting as a three-judge Court, entered on the
30th day of August, 1961, declaring unconstitutional
Act 2 of the Second Extraordinary Session of the Lou-
2
isiana Legislature for 1961, and further enjoining
appellants, and their successors, agents, representa
tives, attorneys, and all other persons who are acting
or may act in concert with them, from enforcing or
seeking to enforce by any means, the provisions of
said statute. Appellants submit this statement to
show that the Supreme Court of the United States
has jurisdiction of the appeal and that substantial
questions are presented.
OPINION BELOW
The opinion of the United States District Court
for the Eastern District of Louisiana, Baton Rouge
Division, is not yet reported, however the judgment
of the Court and reasons therefor are attached hereto
as Appendix “A”.
JURISDICTION
This proceeding was brought under:
28 USC 1331, 28 USC 1343, 28 USC 2281, 28
use 2284, 28 USC 2201 and 28 USC 2202.
The judgment and reasons therefor were entered
on August 30, 1961, and Notice of Appeal was filed
on September 11, 1961.
The jurisdiction of the Supreme Court to review
this decision by direct appeal is conferred by 28 USC
1253.
STATUTES INVOLVED
The statute involved is Act 2 of the Second Ex
traordinary Session of the Louisiana Legislature of
3
1961. The aforesaid Act is set forth in full in Appen
dix “B” hereof.
QUESTIONS PRESENTED
I.
Does the Court have jurisdiction over the subject
matter?
II.
Is this a suit against the State and thus one pro
hibited by the Eleventh Amendment of the United
States Constitution?
III.
Is not the United States participating herein
without authority in law and equity?
IV.
Is not Act 2 of the Second Extraordinary Session
of the Louisiana Legislature for 1961 constitutional
and valid?
V.
Has not the United States failed to state a claim
upon which relief can be granted?
VI.
Have the complainants herein not failed to join
indispensable parties?
VII.
Is not the relief sought by the complainants
herein premature?
4
Does not Act 2 of the Second Extraordinary Ses
sion of the Louisiana Legislature for 1961 meet all of
the requirements of the equal protection clause of the
Fourteenth Amendment of the Constitution of the
United States?
STATEMENT OF THE CASE
Lawrence Hall and numerous other complainants
filed a complaint on September 4, 1952 against the St.
Helena Parish School Board and J. L. Meadows,
Superintendent of the St. Helena Parish School Board.
The cause originally instituted has been litigated
before the United States District Court for the East
ern District of Louisiana, the United States Court of
Appeals for the Fifth Circuit and writs were refused
by this Court on October 9, 1961.
On March 17, 1961 the State of Louisiana was
made a defendant. See Appendix C.
A supplemental complaint under the same num
ber, title and style was filed by original plaintiffs on
March 30, 1961, which supplemental complaint
attacked the constitutionality of Act 2 of the Second
Extraordinary Session of the Louisiana Legislature
for 1961, and a three-judge Court was convened, pur
suant to the United States Code to adjudge the valid
ity of the said statute and entertain Motion for Pre
liminary Injunction enjoining appellants from im
plementing or giving any effect to the provisions of
the said Act.
VIII.
5
All appellants, with the exception of the St.
Helena Parish School Board and J. L. Meadows,
Superintendent of the St. Helena Parish School Board,
State of Louisiana, who were original defendants,
were joined as parties defendant by ex parte order of
Court.
Jurisdiction of the supplemental complaint was
invoked pursuant to 28 USC 2281 and 2284.
Hearing was held on the application for tempo
rary injunction on April 14, 1961, after which the
Court rendered the following per curiam:
“The motions are overruled, in part because coun
sel for the plaintiffs has made it clear that the
plaintiffs do not seek to enjoin the holding of
the election fixed for April 22,1961, in the Parish
of St. Helena. The election has bearing in this
case only as the initial step, under Act No. 2 of
the Second Extraordinary Session of 1961, lead
ing to the closing of public schools in St. Helena.
If Act 2 is unconstitutional, the defendants prop
erly before the Court may be enjoined from
carrying out the provisions of the law.
We have an open mind on the constitutionality
of the statute. We point out, however, that na
tional policy and state policy require us to scruti
nize carefully any statute leading to the closing
of public schools. When there is now such a mani
fest correlation between education and national
survival, it is a sad and ill-timed hour to shut
the doors to public schools. And, now, when one
of the principal functions of the state is to main
6
tain an educational system, it seems strange in
deed and anti-civilized to shift the major financial
burden to private persons, many of whom cannot
afford or can ill-afford to pay for private school
ing even with the benefit of a grant-in-aid. We
think that this case raises due process questions
that have not been briefed.
Does Act 2 violate the due process clause of the
Fourteenth Amendment by depriving children of
the opportunity to obtain a public school educa
tion? We divide this question into two sub-ques
tions. (1) Is it implicit in today’s concept of due
process that a child has a right to a public school
education, even though there is no provision in the
state constitution requiring the state to maintain
a public school system? (2) In the fact situation
this case presents, considering especially that the
state now maintains and has for many years
maintained a public school system, does Act 2
violate due process if its effect is to deprive the
children in St. Helena of a public school educa
tion?
We raise a futher question. Is a statute constitu
tional that, in effect, offers children (1) educa
tion on an unconstitutional condition, that is,
attendance at a segregated school, or (2 ) no educa
tion at all?
The Court is cognizant of Act 258 of 1958 which
provides for a grant-in-aid program. But is grant-
in-aid an adequate constitutional substitute for
public school education, particularly where such
grant-in-aid will, in all probability, result in seg
regated private schools? The Court suggests that
7
consideration be given to this question in the
briefs to be filed.
The Court invites counsel for all parties to file
briefs by Friday, May 5, 1961. The Court also
invites the United States to file a brief as amicus
curiae presenting the views of the United States.
Because of the time required for the filing of the
briefs and the determination of the case, it is
suggested that, irrespective of the result of the
election, the Board agree not to proceed under
Act 2 pending our decision in this case.”
On April 24, 1961, the Court issued the following
orders:
“This case came on for hearing on plaintiffs’
motion for temporary injunction restraining en
forcement of Act 2 of the Second Extraordinary
Session of 1961 of the Louisiana Legislature.
The Court, finding that the motion raises serious
constitutional questions, invited counsel for all
parties to brief the questions presented. The
United States was also invited to file a brief
amicus. It appearing that questions presented by
the motion may be of serious concern to the States
of the United States;
IT IS ORDERED that the Attorneys General of
the several states of the United States be, and
they are hereby, invited by the court to file an
amicus brief herein by June 5, 1961, covering
the following questions:
1. Would the abandonment by a state of its public
school system deprive children of rights guaran
teed by the Due Process or Equal Protection
Clauses of the Fourteenth Amendment?
8
2. Would the answer be the same if the abandon
ment were on a local option basis after a vote
of the electorate authorizing county school au
thorities to close the public schools?
IT IS FURTHER ORDERED that the Clerk of
this Court mail certified copies of this order to
the Attorney General of each State of the Union.”
On May 1,1961, the Court again issued orders, as
follows:
“This cause came on for hearing on plaintiffs’
motion for temporary injunction restraining en
forcement of Act 2 of the Second Extraordinary
Session of 1961 of the Louisiana Legislature.
It appearing that additional evidence may be
required for adequate consideration of the serious
constitutional questions presented by the motion,
IT IS ORDERED that the parties to this action
and the United States supplement the record with
additional documentary evidence, including affi
davits and newspapers, covering the following
subjects:
1. The legislative history of Act. 2.
2. The existing private school facilities in St.
Helena Parish for white as well as Negro pupils.
3. The amount expended for public school facili
ties in St. Helena Parish, the source of these funds,
the bonded indebtedness of the St. Helena Parish
School Board for school facilities, and the security
for that indebtedness.
4. Any pertinent facts bearing on the constitu
tional questions raised by the court.
9
IT IS FURTHER ORDERED that this additional
evidence be filed in the record not later than
May 22,1961.”
Pursuant to the orders of the Court numerous
briefs amicus curiae were filed, as well as briefs on
behalf of the parties litigant and on August 4, 1961,
oral arguments were presented to the Court and there
after, on August 30, 1961, the Court issued its deci
sion holding Act 2 of the Second Extraordinary
Session of the Louisiana Legislature for 1961 un
constitutional and issued a preliminary injunction
prohibiting appellants herein from enforcing or seeking
to enforce by any means the provisions of the said
statute.
THE QUESTIONS PRESENTED
ARE SUBSTANTIAL
On March 17, 1961, the Court by ex parte order
on motion of the United States, under the guise of
“amicus curiae” ordered the State of Louisiana added
as a party defendant herein. Copy of this order ap
pears as Appendix C hereto. The United States is
without any authority whatsoever in law or equity
to participate piecemeal or otherwise in this litiga
tion as a party litigant.
Higginbotham v. City of Baton Rouge 306 U.S
535;
Butler v. Commonwealth of Pa. 10 How. 402;
Crenshaw v. United States 134 U.S. 99;
Phelps v. Board of Education 300 U.S. 319;
Dodge v. Board of Education 302 U.S. 74;
Snowden v. Hughes 321 U.S. 1;
10
Congressional Record of 1957 Pages 11377 and
11378;
Bill H.R. 6128, 85th Congress (original) Pages
9 and 10;
28 U.S.C. 501;
28 U.S.C. 507;
La. Const, of 1921, Article 12, Section 1; Amend
ment 11, United States Constitution;
Hans v. State of La. 134 U.S. 1;
Larson v. Domestic and Foreign Cory. 337 U.S.
682;
Further, as the State of Louisiana was made
a party defendant in this suit which from its com
mencement was one prosecuted by citizens of one of
the United States, jurisdiction failed. See: Louisiana
Constitution of 1921, Article 19, Section 26, and the
Eleventh Amendment to the Constitution of the United
States.
Noah et al v. Board of Education, District of
Columbia 106 Fed. Supp. 988;
Parker v. Board of Education of Sumter County
70 S.E. 2d 369 (Ga.);
Smith v. Hefner 68 S.E. 2d 783 (N. C .);
Stephan v. La. Board of Education 78 So. 2d 18;
Charlottesville v. Allen 240 Fed. 2d 59;
Aerated Pf'oducts Co. of Philadelphia, Pa. v. De
partment of Health of N. J. et al, 159 Fed.
2d 851;
Ford Company v. Department of Treasury 323
U.S. 459;
Baldwin v. G.A.F. Seelig 294 U.S. 511;
U.S. Department of Agriculture, et al, v. Hunter,
et al, 171 Fed. 2d 793;
11
U.S. Department of Agriculture v. Remund 330
U.S. 539;
New Haven Public Schools v. General Service Ad
ministration 214 Fed. 2d 592;
Herrin v. Farm Security Administration 153 Fed.
2d 76;
Thomason v. Works Progress Administration 138
Fed. 2d 342;
N. Dakota-Montana Wheat Growers’ Assn. v. U.S.
66 Fed. 2d 573; certiorari denied; 291 U.S. 672;
Blackmar v. Guerre 342 U.S. 512;
Georgia Railroad and Banking Company v. Red-
wine 342 U.S. 299.
Perusal of the Court’s temporary injunction (Ap
pendix A) readily reflects that the individual members
of defendant board were cast in equity and the record
shows that the individual members of the board were
not made parties defendant hereto although they were
found to be indispensable parties by judgment of the
Court.
The Court below erred in deciding the constitu
tional issues on facts not germane to the issues, as well
as by misapplication of legal principles.
In its decision below the Court found that Act 2
violated the equal protection clause of the United
States Constitution in two respects; improper classi
fication and illegal evasion.
Before proceeding to discuss these issues, it is
necessary to eliminate one trend of thought which
pervades the lower Court’s opinion. Throughout the
12
opinion the Court takes great pains to point out to
what extent, private schools, if organized, would con
stitute state action.
“This analysis of Act 2 and related legisla
tion makes it clear that when the Legislature
integrated Act 2 with its companion measures,
especially the “private” school acts, as part of a
single carefully constructed design, constitution
ally the design was self-defeating. Of necessity,
the scheme requires such extensive state control,
financial aid, and active participation that in
operating the program the state would still be pro
viding public education. The state might not be
doing business at the old stand; but the state
would be participating as the senior, and not
silent, partner in the same sort of business. The
continuance of segregation at the state’s public-
private schools, therefore, is a violation of the
equal protection clause.” (Court’s opinion, page
42).
“This scheme of the Louisiana Legislature
to deny school children constitutional rights is
not new. It has been tried before, with similar
results. In declaring such a scheme unconstitu
tional, the Eighth Circuit, in Aaron v. Cooper,
261 F. 2d 97, 106-107, relied heavily on this pro
nouncement by the Supreme Court: ‘State sup
port of segregated schools, through any arrange
ment, management, funds, or property cannot be
squared with the Fourteenth Amendment’s com
mand that no State shall deny to any person with
in its jurisdiction the equal protection of the laws.’
Aaron v. Cooper, supra, 19. The ruling here must
be the same.” (Court’s opinion, page 43).
13
This would merit serious consideration if the
question before the Court were, are those schools
discriminating in admitting students because of race,
color or creed, but absent that question the Court’s
discussion is rankest dicta and serves only to confuse
the real constitutional issue which must be decided.
May a Parish constitutionally abandon a public school
system?
Let us first consider whether Act 2 affects the
Parish of St. Helena and its residents in such a
manner as to constitute an illegal or unconstitutional
classification, or, for that matter, any type of clas
sification whatsoever.
As a general proposition the laws enacted by a
State Legislature must apply equally to all persons
within the confines of the State. There are, however,
two methods by which the laws enacted by the State
Legislature may vary within the State. First, the
Legislature may enact laws applicable to a certain
class or classes within its boundaries. Legislative
classification if not palpably arbitrary and if it may
reasonably be conceived to rest on some real and
substantial difference or distinction bearing a just
and fair relation to the Legislation is no denial of
equal protection of the laws. 16A C.J.S. Section 505
Page 314. This is the type of Legislation passed on
by the Court in the case of James v. Almond, 170
Fed. Supp. 331.
In that case the Legislature of the State of Vir
ginia had passed an act permitting the Governor of
14
the State of Virginia to assume control of schools
under certain conditions. Pursuant to that statute,
the Governor by executive order seized control of
certain schools integrated by the City of Norfolk. He
then proceeded to order the desegregated schools not to
open even though other schools in the city and state
were open. The Court stated:
“Tested by these principles we arrive at the in
escapable conclusion that the Commonwealth of
Virginia, having accepted and assumed the re
sponsibility of maintaining and operating public
schools, cannot act through one of its officers to
close one or more public schools in a state solely
by reason of the assignment to, or enrollment or
presence in, the public school of children of dif
ferent races or colors, and at the same time, keep
other public schools throughout the state open on
a segregated basis.”
According to the Court’s opinion, the Virginia
Legislation would result in some of the children in
the state attending public schools while the other
children in the state would not be afforded the same
privilege, thus not affording equal treatment within
the political unit establishing the policy. Since there
was no reasonable basis for the different treatment
it was an illegal classification which denied to certain
citizens of the State the equal protection of the laws
guaranteed under the Fourteenth Amendment.
The second method by which different laws and
different rules may prevail in various localities of the
State is the “home rule” or “local option” statutes.
15
This type of Legislation is a permissive grant by the
State to its political subdivisions to establish rules
and/or regulations under which they choose to operate,
“Home rule” permits localities, political subdivisions,
etc., to adopt certain laws and rules by which it
chooses to be governed. When the right of local option
is exercised by a political subdivision of the State,
there is no necessity of applying the rule of legislative
classification since the rule, law or regulation will
apply equally to all persons within the geographical
or political unit, and consequently cannot result in
denial of equal protection. The validity of the so-called
“home rule” or “local option” adoption of different
rules within a political or geographical area was ap
proved by the Supreme Court in the case of Salzburg
v. State of Maryland, 346 U.S. 545, wherein the Court
said:
“There seems to be no doubt that Maryland could
validly grant home rule to each of its 21 counties
and to the City of Baltimore to determine this
rule of evidence by local option.”
Again in the case of Greensboro v. Tonkins, 276
Fed. 2d 890, the Court wTas faced with a problem
where a municipality was going to cease to offer a
certain service even though the same service was
offered to their local citizens by other communities
throughout the State. The Court held that the city
could validly sell its swimming pool and cease opera
tion thereof even though the sale was made pursuant
to and authorized by a statute of the State of North
Carolina.
16
“North Carolina private laws 1923 Ch. 37, Sec
tion 79 has amended N. C. Sess. Laws 1957 Ch.
960, Section 4.”
In effect, the Court permitted the City of Greensboro
to withdraw a service offered to the citizens of the
City of Greensboro pursuant to a State statute, pro
vided that it affected all citizens of that City the
same, without regard as to how it affected the rest
of the citizens of the State.
In discussing and commenting upon this decision,
a commentator of the Harvard Law Review, Volume
72, Page 1567, stated as follows:
“It could be argued that since the municipality is
merely a creation of the state, and since its power
to sell is authorized by State statute, its action in
closing the pool should be attributed to the state,
thus presenting a situation similar to that of the
James case, assuming that other municipal swim
ming pools in the state remained open. Neverthe
less, it appears that a municipality should be re
quired to act only in relation to persons within
its jurisdiction, and that it fulfills its constitu
tional obligations when it treats all such persons
equally. To require more would place a virtually
impossible burden upon municipalities, and would
tend to defeat the diversity which is one of the
aims of local government. Thus, although discrimi
nation by a municipality among its residents in
the operation of recreational facilities is properly
attributed to the state, it does not seem desirable
to extend the ‘state action’ concept so as to trans
form a nondiscriminatory municipal act into state
discrimination under the fourteenth amendment.”
17
This distinction was again recognized by the Fifth
Circuit Court of Appeal in the case of Montgomery v.
Gilmore, 277 Fed. 2d 364. Here the Court again noted
the difference and distinction between the application
of a rule passed by a political subdivision to the persons
located within that subdivision, and a general classi
fication statute by the State affecting different classes
in different ways. In footnote 4 of the case, the Court
stated as follows:
“In our opinion, the closing of all the public parks
of the City does not violate the equal protection
of the laws of the citizens of Montgomery, under
the doctrines of James v. Almond, D.C.E.D. Va.
1959 170 Fed. Supp. 331; James v. Duckworth,
D.C.E.D. Va. 1959, 170 Fed. Supp. 342, and
Harrison v. Day, 1959, 200 Va. 439, 106 S.E. 2d
636.”
The Federal Courts in this State have acknowl
edged and the United States Supreme Court has af
firmed the proposition that the various school boards
within the State of Louisiana may, subject to a permis
sive statute of the Legislature, adopt rules which
would not be uniform throughout the State, but which
would be completely uniform and equally administered
within the unit of the parish itself.
Hughes v. Caddo Parish School Board, et al, 57
F. Supp. 508, affirmed 323 U.S. 685.
In that case, the Legislature gave to each parish
school board in the State the power to abolish high
school fraternities and sororities and further to dis
18
cipline any student who remained a member thereof.
This statute was attacked on many grounds, one of
which was that it was a violation of the equal pro
tection clause of the Fourteenth Amendment clause
of the United States Constitution. The Court in com
menting on the claim of denial of equal protection
stated, on page 512:
“In the instant case the student is a member of
the fraternity chapter in Byrd High School where
entrance and enrollment are sought. Because of
the disciplinary measures which the State Legis
lature and the Caddo Parish School Board are
seeking to establish in the schools under their
respective police authority, this student may be
legally compelled to comply with these measures.”
“The manner of application of the law becomes
adsolutely uniform— there is not even the sem
blance of any discrimination as was alleged to
exist in the Waugh case, and which was pressed
before and considered by the Supreme Court of
the United States.”
The statute involved in that case is quite similar
to the one herein, in that the Legislature gave the per
missive right to the various local school boards to
adopt a certain set of rules and procedures. It was
conceded in the case that the school boards throughout
the State might not adopt the same practice, however
if they did though, it would apply to all students
within that political unit. That case and the one at bar
cannot be distinguished with regard to the application
of the equal protection clause.
19
The Court in the decision below attempts to dis
tinguish the principles set forth in the local option
liquor law cases. Rippey v. State of Texas 193 U.S.
504 and Lloyd v. Dollison 194 U.S. 445.
The Court reasoned that the local option statutes
were good in those matters only because the State had
complete and absolute control over the distribution
and sale of liquor. The converse is true. 16-A C.J.S.
Constitutional Law, Section 6, 512 at page 358:
“The constitutional guaranty of the equal pro
tection of the laws is applicable to regulations
with respect to intoxicating liquors and the sale
thereof. However, the control of the sale, use,
transportation, and consumption of intoxicating
liquor, being peculiarly within the province of
legislative powers, the regulation, or even the pro
hibition thereof, does not necessarily deny anyone
equal protection of the laws.”
The only difference between education and liquor
trade, insofar as State control is concerned, is one of
degree. The State may prohibit the sale or manufac
ture of liquor, while it may not prohibit education,
but this does not in the least prohibit it from delegating
to localities the power which it does retain.
The final determination of educational policies in
governmental units or subdivisions of the State is not
foreign to Louisiana or to other states in the union.
This may be done on a county basis, or as in many
states by school districts. Index Digest of State Con
stitutions, p. 390. It is generally recognized that a
20
state legislature may authorize residents of local school
districts to vote upon bonding, finances and other
matters of government connected with the operation
of local schools. Kee v. Parks, 153 Tenn. 306, 283 S.W.
751; In Re School Code of 1919, 7 Boyce 406, 108 Atl.
39; State v. Lamont, 105 Kan. 134, 181 Pac. 617. A
clear statement of the generally recognized rule as re
gards local operation of schools is found in 16 C.J.S.,
Constitutional Law, Sec. 142, at page 683, where it is
said:
“The legislature may provide laws as to the es
tablishment, division, alteration, enlargement, or
abolition of schools and school districts, and the
control of schools to take effect when adopted by
a vote of the people of the district.”
In People v. Cowen, 283 111. 308, 119 N.E. 335
(1918) the Illinois Supreme Court stated with refer
ence to the legislative power to delegate to a local body
the power to abolish a high school:
“The legislature has supreme power over public
corporations, and may divide, alter, enlarge, or
abolish them as in the legislative judgment the
public welfare may require. This power may be
exercised by the Legislature itself by direct legis
lation, or it may delegate the power to certain
officers, courts, or the electors of a municipal-
The court concluded that the electors of a school
district could properly vote to abolish a school.
The principle of local option is too well established
to charge it with being contrary to the Federal Con
21
stitution as such. Downs v. Boonton, 99 N.J. Law 40,
122 A. 721; State v. Baxter, 195 Wis. 437, 219 N.W.
858; State v. Briggs, 46 Utah 288, 146 Pac. 261; Ohio
v. Dollison 194 U.S. 445.
It must be concluded that no constitutional objec
tion can be raised to the closing of schools on a local
option basis.
The other basis upon which the Court found Act
2 unconstitutional is :
“Most immediately, it is a transparent artifice
designed to deny the plaintiffs their declared
constitutional right to attend de-segregated
schools.”
If this is the doctrine of the United States Dis
trict Court for the Eastern District of Louisiana, it
is without a doubt novel, startling and entirely un
founded in law. The Court in its holding here makes
it mandatory that the parish furnish to the plaintiffs
a public school and further that said public school
must be desegregated. The basis for such a judicial
pronouncement can be found neither in the law nor
jurisprudence.
The Court herein apparently misconstrued the
doctrine of the Brown case. The same was analyzed
and its doctrine clearly set forth in the case of Briggs
v. Elliott, 132 F. Supp. 776, 777, wherein the Court
said:
“. . . It is important that we point out exactly
what the Supreme Court has decided and what
22
it has not decided in this case. It has not decided
that the federal courts are to take over or reg
ulate the public schools of the states. It has not
decided that the states must mix persons of dif
ferent races in the schools or must require them
to attend schools or must deprive them of the
right of choosing the schools they attend. What
it has decided, and all that it has decided, is
that a state may not deny to any person on ac
count of race the right to attend any schools that
it maintains. . . Nothing in the Constitution or
in the decision of the Supreme Court takes away
from the people freedom to choose the schools
they attend. The Constitution, in other words,
does not require integration. It merely forbids
discrimination. . . . ”
This interpretation of the Brown case has been
adopted by the Fifth Circuit Court of Appeals in
Avery v. Wichita Falls Independent School District
241 Fed. 2d 330, certiorari denied 353 U.S. 938, as
well as by other Federal Courts. Thompson v. School
Board of Arlington, 144 F. Supp. 239 (D.C. Va. 1956),
aff’d sub nom. School Board of Charlottesville v. Allen,
240 F 2d 59 (C.A. 4th 1956), cert. den. 77 S. Ct. 667;
Borders v. Rippey, 247 F2d 268 (C.A. 5th 1960); Cal
houn v. Board of Education of Atlanta, 188 F. Supp.
401 (D.C. Ga. 1959); Henry v. Godsell et al., 165 F.
Supp. 87 (D.C. Mich. 1958); Kelley v. Board of Ed
ucation of Nashville, 270 F. 2d 209 (C.A. 6th 1959),
cert. den. 361 U.S. 924; Dove v. Parham, 181 F. Supp.
504 (D.C. Ark. 1960); Holland v. Board of Public
Instruction, 258 F2d 730 (C.A. 5th 1958); Montgom
23
ery v. Gilmore, 277 F2d 364 (C.A. 5th 1960).
Additionally, the Court below has in effect pro
claimed that the plaintiffs have an absolute, uncon
ditional, constitutional right to attend a de-segregated
school. This premise, that the plaintiffs have a right
to attend a school at all, is again without support in
law.
Appellants do not doubt that if public education
were offered to some students in an area, it would
have to be granted to all students on an equal basis,
however the requisite of equality of a service fur
nished does not obligate the state to furnish the service.
In the case of Everson v. Board of Education,
330 U.S. 1, 21, the late Justice Jackson, stated:
“The Constitution says nothing of education. It
lays no obligation on the states to provide schools
and does not undertake to regulate state systems
of education if they see fit to maintain them.”
In addition to extending the doctrine of the
Brown case, as stated above, the Court below in its
opinion developed three new axioms which can be
used for constitutional interpretation. They are un
constitutionality by association, conjecture and priv
ilege.
This Court for the past several years has on many
occasions been confronted with the question of the
validity of “guilt by association”. The Court’s opinion
below has developed a companion doctrine which
might well be labeled “unconstitutionality by associa
tion”. The Court in its opinion found that other acts
24
declared unconstitutional must necessarily pass their
unconstitutionality on to Act 2.
“The Louisiana Legislature has confected
one ‘evasive scheme’ after another in an effort to
achieve this end. This Court has held these un
constitutional in one decision after another, af
firmed by the Supreme Court. Yet they continued
to be enacted into law. . .”
“On its face, this section appears inoffensive.
It is only after an analysis of the school closing
measure, other sections of the act and related
legislation that the purpose, mechanics, in effect
of the clan emerged.”
The Court furnishes absolutely no authority for
the proposition that it possesses the power to invali
date acts of the sovereign state solely on the finding
that those acts are part of a pattern or plan. No cri
terion of standards were eluded to which might
define this new principle. Presumably, the Court be
lieves that because Louisiana has sinned constitu
tionally before, every other act which its legislature
subsequently enacts is likewise invested with the same
infirmity to such an extent as to dispense with the
necessity of individual adjudication. Negro plaintiffs
have merely to shout the magic word “pattern”, and
invalidation follows as a matter of course.
We think the true rule is stated in Dove v. Par
ham, 176 F. Supp. 242 reversed in part in other
grounds, 271 Fed. 2d 132:
“Implicit the rules applied in those cases and
controlling in the Arkansas pupil placement law
25
being within constitutional boundaries is the
principle, that a state plan for resistance to racial
integration in its public schools, is without sig
nificance as to the constitutionality of such laws
if legitimate and constitutional means are used
in the operation of the plan and the attainment
of its objective.”
Throughout its opinion the Court pre-assumes to
determine how Act 2 and other Acts of the State of
Louisiana are to be inter-related, how they will be ap
plied, how they will effect the petitioners as well as
others in the parish, and their eventual effect upon
the individual community and state. Conjecture,
suspicion and clairvoyance are indeed strange ave
nues by which to arrive at the constitutional deter
mination of the validity of a sovereign state stat
ute. This Court, in a recent case, frowned upon such
methods of arriving at a determination of the consti
tutionality of a statute when it said:
“The very foundation of the power of the federal
courts to declare Acts of Congress unconstitu
tional lies in the power and duty of those courts
to decide cases and controversies properly before
them. This was made patent in the first case here
exercising that power— ‘the gravest and most
delicate duty that this Court is called on to per
form’. Marbury v. Madison, 1 Cranch 137, 177—
180, 2 L. Ed. 60. This Court, as is the case with
all federal courts, “has no jurisdiction to pro
nounce any statute, either of a state or of the
United States, void, because irreconcilable with
the constitution, except as it is called upon to ad-
26
judge the legal rights of litigants in actual con
troversies. In the exercise of that jurisdiction, it
is bound by two rules, to which it has rigidly ad
hered : one, never to anticipate a question of con
stitutional law in advance of the necessity of de
ciding it; the other, never to formulate a rule of
constitutional law broader than is required by the
precise facts to which it is to be applied. Liver
pool, New York & Philadelphia S.S. Co. v. Com
missioners of Immigration, 113 U.S. 33, 39, 5
S. Ct. 352, 355, 27 L. Ed. 899. Kindred to these
rules is the rule that one to whom application of a
statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might
also be taken as applying to other persons or
other situations in which its application might
be unconstitutional. United States v. Wurzbach,
280 U.S. 396, 50 S. Ct. 167, 74 L. Ed. 58; Heald
v. District of Columbia, 259 U.S. 114, 123, 42
S. Ct. 434, 435, 66 L. Ed. 852; Yazoo & Mississippi
Valley R. Co. v. Jackson Vinegar Co., 226 U.S.
217, 33 S. Ct. 40, 57 L. Ed 193; Collins v. State
of Texas, 223 U.S. 288, 295— 296, 32 S. Ct. 286,
288, 56 L. Ed. 439; People v. State of New York
ex rel. Hatch v. Reardon, 204 U.S. 152, 160-161,
27 S. Ct. 188, 190-191, 51 L. Ed. 415. Cf. Voeller
v. Neilston Wholesale Co., 311 U.S. 531, 537, 61
S. Ct. 376, 379, 85 L. Ed. 322; Carmichael v.
Southern Coal & Coke Co., 301 U.S. 495, 513, 57
S. Ct. 868, 874, 81 L. Ed. 1245; Virginian R. Co.
v. System Federation, 300 U.S. 515, 558, 57 S. Ct.
592, 605, 81 L. Ed. 789; Blackmer v. United
States, 284 U.S. 421, 442, 52 S. Ct. 252, 257, 76
L. Ed. 375; Roberts & Schaefer Co. v. Emmerson,
271 U.S. 50, 54-55, 46 S. Ct. 375, 376-377, 70 L.
27
Ed. 827; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571,
576, 35 S. Ct. 167,'169, 59 L. Ed. 364; Tyler v.
Judges of the Court of Registration, 179 U.S.
405, 21 S. Ct. 206, 45 L. Ed. 252; Ashwander v.
Tennessee Valley Authority 297 U.S. 288, 347-
348, 56 S. Ct. 466, 483-484, 80 L. Ed. 688 (con
curring opinion). In Barrows v. Jackson, 346 U.S.
249, 73 S. Ct. 1031, 97 L. Ed. 1586, this Court
developed various reasons for this rule. Very
significant is the incontrovertible proposition
that it ‘would indeed be undesirable for this
Court to consider every conceivable situation
which might possibly arise in the application of
complex and comprehensive legislation.’ Id., 346
U.S. at page 256, 73 S. Ct. at page 1035. The
delicate power of pronouncing an Act of Congress
unconstitutional is not to be exercised with refer
ence to hypothetical cases thus imagined. The
Court further pointed to the fact that a limiting
construction could be given to the statute by the
court responsible for its construction if an appli
cation of doubtful constitutionality were in fact
concretely presented. We might add that applica
tion of this rule frees the Court not only from
unnecessary pronouncement on constitutional is
sues, but also from premature interpretations of
statutes in areas where their constitutional ap
plication might be cloudy.” U.S. v. Raines 362
U.S. 17
Appellants, until the decision of the Court below,
were of the opinion that all parts of the Constitution
were of equal importance and that all privileges, rights
and immunities granted to the citizens of the United
States were equally protected. It was with conster
28
nation we discovered the contrary, in the decision of
the Court below:
“Irrespective of the express terms of a statute,
particularly in the area of racial discrimination,
Courts must determine its purposes as well as its
substance and effect.” (emphasis supplied)
Absent the feeling of the Court, as expressed
above, appellants feel that many of the questions
raised and decided in this case would have never re
ceived serious consideration, had they arisen in dif
ferent context. The fact that the United States Gov
ernment was the paladin of the plaintiffs or that
the states involved had expressed disagreement of
the Supreme Court decisions of late, or that the
principles are here challenged by those who currently
are special favorite of the laws, does not change the
law. As appropriately stated by Mr. Justice Bradley,
almost eighty years ago in the Civil Rights cases 109
U.S.3:
“When a man has emerged from slavery, and by
the aid of the beneficient legislation has shaken
off the inseparable concommitants of that state,
there must be some stage in the progress of his
elevation when he takes the rank of a mere citizen,
and ceases to be a special favorite of the laws,
and when his rights as a citizen, or a man, must
be protected in the ordinary modes by which
other men’s rights are protected.” (emphasis add
ed)
29
CONCLUSION
WHEREFORE it is respectfully submitted that
this Court has jurisdiction of this Appeal and it is
respectfully suggested this Court find this case an
appropriate one for reversal and dismissal of the com
plaint, dissolving and recalling the temporary injunc
tion.
Of Counsel:
CARROLL BUCK,
M. E. CULLIGAN,
GEORGE M. PONDER,
JOHN E. JACKSON, JR.,
WILLIAM P. SCHULER,
DOROTHY WOLBRETTE,
L. K. CLEMENT, JR.
HARRY J. KRQN, JR.,
Assistant Attorneys General.
ALBIN P. LASSITER,
District Attorney,
Ith Judicial District,
State of Louisiana.
THOMPSON L. CLARKE,
District Attorney,
6th Judicial District,
State of Louisiana.
LOUIS H. PADGETT, JR.,
District A ttorney,
26th Judicial District,
State of Louisiana.
Respectfully submitted,
JACK P. F. GREMILLION,
Attorney General,
State of Louisiana.
DUNCAN S. KEMP,
District Attorney,
21st Judicial District,
State of Louisiana.
W. SCOTT WILKINSON,
Special Assistant
Attorney General.
VICTOR A. SACHSE,
Special Assistant
Attorney General.
30
PROOF OF SERVICE
I, JACK P. F. GREMILLION, Attorney General
for the State of Louisiana, and attorneys for appellants
herein and a Member of the Bar of the Supreme
Court of the United States, do hereby certify that
copies of the foregoing Jurisdictional Statement for
appellants were served upon the appellees through
their counsel of record, herein below named, by
placing the same in the United States mail, addressed
to them at their offices with sufficient postage there
to annexed:
Mr. A. P. Tureaud, 1821 Orleans Avenue, New
Orleans, Louisiana, Mr. Robert L. Carter, 20 West
40th Street, New York 18, New York, via air mail,
and Mr. Jack Greenberg and Mr. Thurgood Marshall,
10 Columbus Circle, New York, New York, via air
mail.
JACK P. F. GREMILLION,
Attorney General,
State of Louisiana.
31
APPENDIX “A”
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BATON ROUGE DIVISION
No. 1068 CIVIL ACTION
Lawrence Hall, E t Al, Plaintiffs
v.
St. Helena Parish School Board, E t Al,
Defendants
Thurgood Marshall
A. P. Tureaud
A. M. Trudeau, Jr.
Jack Greenberg
Attorneys for Plaintiffs
Jack P. F. Gremillion, Attorney General of Lou
isiana
L. K. Clement, Jr., Assistant Attorney General
Weldon Cousins, Assistant Attorney General
Michael E. Culligan, Assistant Attorney General
John M. Currier, Assistant Attorney General
John E. Jackson, Jr., Assistant Attorney General
George Ponder, Assistant Attorney General
William P. Schuler, Assistant Attorney General
W. Scott Wilkinson, Special Assistant Attorney
General
Duncan Kemp, District Attorney for St. Helena
Parish
E. Freeman Leverett, Deputy Attorney General
of Georgia
Gordon Madison, Deputy Attorney General of
Alabama
Leslie Hall, Deputy Attorney General of Alabama
32
Attorneys for Defendants
M. Hepburn Many, United States Attorney
Harold H. Greene, United States Department of
J ustice
Attorneys for United States of America,
Amicus Curiae
WISDOM, Circuit Judge, and CHRISTEN-
BERRY and WRIGHT, District Judges:
Undeterred by the failure of its prior efforts, the
Louisiana Legislature continues to press its fight for
racial segregation in the public schools of the state.
Today we consider its current segregation legislation,
the keystone of which, the local option law, is under
attack in these proceedings.
On May 25, 1960, this court entered its order
herein restraining and enjoining the St. Helena Parish
School Board and its superintendent from continuing
the practice of racial segregation in the public schools
under their supervision “after such time as may be
necessary to make arrangements for admission of
children to such schools on a racially non-discrimina-
tory basis with all deliberate speed.” The Court of
Appeals affirmed this judgment on Fedruary 9, 1961.1 2
On February 9, 1961, the very day of the af
firmance of the order of this court,3 the Governor
of the State called the Second Extraordinary Session
1St. Helena Parish School Board v. Hall, 5 Cir., 287 F. 2d 376.
20 rd er of this court requiring desegregation of the Baton Rouge
public schools and five sta te trade schools were also affirm ed on Feb.
9, 1961. East Baton Rouge Parish School Board v. Davis, 5 Cir., 287
F. 2d 380; Louisiana State Board of Education v. Allen, 5 Cir., 287
F. 2d 32; Louisiana State Board of Education v. Angel, 5 Cir., 287 F.
2d 33.
33
of the Louisiana Legislature for 1961 into session
to act “relative to the education of the school children
of the State * * * for the preservation and protec
tion” of state sovereignty. Within a few days of the
call, he certified as emergency legislation wThat be
came Act 2s of that session, the local option law in
suit, as well as related legislation designed to continue
racial segregation in the public schools, in spite of the
desegregation order of this court in this case in partic
ular and desegregation orders in general. As is mani
fest from the legislative history of the statute and
an analysis of its provisions as these are related to
cognate legislation, the sub-surface purpose of Act 2
is to provide a means by which public schools under
desegregation orders may be changed to “private”
schools operated in the same way, in the same build
ings, with the same furnishings, with the same money,
and under the same supervision as the public schools.
In addition, as part of the plan, the school board of
the parish where the public schools have been “closed”
is charged with responsibility for furnishing free
lunches, transportation, and grants-in-aid to the
children attending the “private” schools.
The statute in suit violates the equal protection
clause on two counts. Most immediately, it is a trans
parent artifice designed to deny the plaintiffs their
declared constitutional right to attend desegregated
public schools. More generally, the Act is assailable
because its application in one parish, while the state
'La. R.S. 17:350.
34
provides public schools elsewhere, would unfairly dis
criminate against the residents of that parish, irre
spective of race.
The language of the Supreme Court in Cooper v.
Aaron, 358 U.S. 1, 17, cannot be disregarded: “The
constitutional rights of children not to be discrimi
nated against in school admission on grounds of race
or color declared by this Court in the Brown case
can neither be nullified openly and directly by state
legislators or state executive or judicial officers, nor
nullified indirectly by them through evasive schemes
for segregation whether attempted ‘ingeniously or in
genuously.’ Smith v. Texas, 311 U.S. 128, 132.”
These words tell the Louisiana Legislature, as clearly
as language can, that school children may not be
denied equal protection of the laws, may not be dis
criminated against in school admissions, on grounds
of race or color. The Louisiana Legislature has con
fected one “evasive scheme” after another in an effort
to achieve this end. This court has held these un
constitutional in one decision after another affirmed
by the Supreme Court.4 Yet they continue to be enacted
into law.
As with the other segregation statutes, in
drafting Act 2 the Legislature was at pains to use
language disguising its real purpose. All reference to
‘See Bush v. Orleans Parish School Board, E.D. La., 138 F. Supp.
337, affirm ed, 242 F. 2d 156; id., 163 F. Supp. 701, affirm ed, 268 F.
2d 78; id., 187 F. Supp. 42, affirm ed, 365 U.S. 569; id., 188 F. Supp.
916, affirm ed, 365 U.S. 569; id., 190 F. Supp. 861, affirm ed, 366 U.S.
212; id., 191 F. Supp. 871, affirm ed, 366 U.S. 212; id., 191 F. Supp.
871, affirm ed, ----- U.S........... (6-19-61); id., 194 F. Supp. 182.
35
race is eliminated, so that, to the uninitiated, the
statute appears completely innocuous. For example,
the first section of Act 2 reads:
“In each parish of the state, and in each munici
pality having a municipally operated school sys
tem, the school board shall have authority to
suspend or close, by proper resolution, the opera
tion of the public school system in the elemen
tary and secondary grades in said parish or
municipality, but no such resolution shall be
adopted by any such board until the question
of suspending or closing the operation of such
public school system in such grades shall have
been submitted to the qualified electors of the
parish or municipality, as the case may be, at
an election conducted in accordance with the
general election laws of the state, and the majority
of those voting in said election shall have voted
in favor of suspending or closing the operation
of such public school system.”
On its face, this section appears inoffensive. It Is only
after an analysis of this school closing measure with
other sections of the Act and related legislation that
the purpose, mechanics, and effect of the plan emerge."
(Irrespective of the express terms of a statute,
particularly in the area of racial discrimination, courts
must determine its purpose as well as its substance
and effect.) “A result intelligently foreseen and offer
ing the most obvious motive for an act that will
bring it about, fairly may be taken to have been a 5
5Act 2, of course, m ust be read w ith other legislation in pari
m ateria. See 2 Sutherland, S tatu tory Construction (3rd Ed. 1943),
§§5201-5202, pp. 529-539. See also cases cited in Note 4.
36
purpose of the act.” Miller v. Milwaukee, 272 U.S.
713, 715. Moreover, “acts generally lawful may be
come unlawful when done to accomplish an unlawful
end.” Western Union Tel. Co. v. Foster, 247, U.S.
105, 114.° The defendants argue that we should not
probe for the purpose of this legislation, that we
should ignore the events which led up to and accom
panied its passage, and determine its validity based
on its language. But “* * * we cannot shut our eyes
to matters of public notoriety and general cognizance.
When we take our seats on the bench we are not
struck with blindness, and forbidden to know as judges
what we see as men.’”
The sponsors of this legislation, in their public
statements, if not in the Act itself, have spelled out
its real purpose.6 * 8 Administration leaders repeatedly
said that the local option bill should not be con
strued as indicating the state would tolerate even
token integration. The law would be used in parishes
either having or threatened with desegregation: Or
leans, East Baton Rouge and St. Helena. Times-
Picayune, February 20, 1961. The program for the
6See also Grosjean v. American Press Co., 297 U.S. 233; Go-
million v. Lightfoot, 364 U.S. 339, 347-348; Rice v. Elmore, A Cir.,
165 F. 2d 387, 391; Baskin v. Brown, 4 Cir., 174 F. 2d 391, 393.
"Mr. Justice Field, sitting as Circuit Judge, in Ho Ah Row v.
Nunan, 9 Cir., 5 Sawyer 552, 560.
8In Louisiana, as most states, the legislative debates, committee
proceedings, and committee reports are not recorded officially. Going
to the next best records, newspapers, we find in the record of this
case a mass of contemporary newspaper articles, filed by the plain
tiffs and by amicus curiae, bearing on the legislative history of Act
2 and its related measures. A ffidavits from the authors of the articles
a tte s t the ir accuracy. In all instances they are p a r t of the official
records. Their reliability is evidenced by their substantial agreement.
37
legislative session which adopted Act 2 was worked
out by the so called “Liaison Committee,” a committee
charged with co-ordinating the administration’s seg
regation strategy. Times-Picayune, February 11,1961.
Representative Risley Triche, administration floor
leader and sponsor of Act 2, told the House of Rep
resentatives, “The bill does not authorize any school
system to operate integrated schools. We haven’t
changed our position one iota. This bill allows the
voters to change to a private segregated school sys
tem. That’s all that it’s intended to do. I don’t think
we want to fall into the trap of authorizing
integrated schools by the votes of the people.
This bill doesn’t allow that and we’re not falling
into that trap.” Times-Picayune, February 18, 1961.
The president pro tern of the Senate explained
the bill as follows: “As I see it, Louisiana is entering
into a new phase in its battle to maintain its segre
gated school system. The keystone to this new phase
is the local option plan we have under considera
tion.”9 Times-Picayune, February 20, 1961. And
“Representative Salvador Anzelmo, one of the two legislators to
vote against Act 2 declared th a t in actuality the local option was a
misnomer; it did not give the people an option because if they voted
to keep the schools open, those schools which are in tegrated would be
forced to close because sta te funds would be cut off. Representative
Anzelmo said: “They are not going to get any money if they keep
the schools open. We give them no choice. I say this is a bad bill
because the in tent is to positively kill public education in Louisiana.
We will kill the youth of Louisiana, we kill the aspirations and hopes
of Louisiana.
You’ll be haunted by th a t vote the rest of your life, because the
poor people of th is sta te will not be able to get an education. In
effect, we are giving the people no option whatever. The only th ing
we are doing is providing the apparatus to close the schools of this
state .” Shreveport Times, Feb. 18, 1961.
38
segregation leader Representative Wellborn Jack was
even more explicit: “It gives the people an oppor
tunity to help fight to keep the schools segregated. We
are the ones who have been speaking for segregation.
This is going to give the people in all 64 parishes the
right to speak by going to the polls. This is just to
recruit more people to keep our schools segregated,
and we’re going to do it in spite of the federal govern
ment, the brainwashers and the Communists.”
Shreveport Times, February 18, 1961. In short, the
legislative leaders announced without equivocation
that the purpose of the packaged plan was to keep the
state in the business of providing public education on
a segregated basis.
The legislative scheme here, once revealed, is
disarmingly simple. Section l 10 of Act 2 provides a
means for “closing” the public schools in a parish.
Section 1311 of the Act provides that the school board
may then “lease, sell, or otherwise dispose of, for cash
or on terms of credit, any school site, building or
facility not used or needed in the operation of any
schools within its jurisdiction, on such terms and con
ditions and for such consideration as the school board
shall prescribe.” Of course, to the extent that such
conveyances, denominated “sales,” are for less than
the fair value of the property, they are gifts constitut
ing continuing state aid to “private” schools. Presum
ably, this sale would be made to educational coopera-
10La. R.S. 17:350.1.
“ La. R.S. 17:350.13.
39
fives, created pursuant to Act 257 of 1958,12 which
would operate the “private” schools with state money
furnished by the grant-in-aid program provided for in
Act 313 of the Second Extraordinary Session of
I960.14 15
“Under Act 3 of the Second Extraordinary Ses
sion of 1960, the parish school boards would continue
to supervise the “private” schools, under the State
Board of Education, by administering the grant-in-
aid program of tuition grants payable from state and
local funds. This act is identical with Act 258 of 1958.
which was repealed, except that it omits the earlier
explanation that tuition grants are available “where
no racially separated public school is provided” and it
deletes all other references showing its sub-surface
purpose. Financial aid is direct from state to school:
tuition checks are to be made out by the state jointly
to the parent and the school.16 Under Section 1216 of
12La. R.S. 17:2801.
13La. R.S. 17:2901.
“ A ct 9 of the Second E xtrao rd inary Session of 1961 transfers
$2,500,000 from the Public W elfare Fund to the Education Expense
G rant Fund fo r grant-in-aid use, and A ct 10 of the same session
(La. R.S. 47:318) tran sfe rs $200,000 monthly from the sales tax col
lections to the same fund for the same purpose.
15The large number of Catholic schools in Louisiana presented
the legislature w ith an insoluble problem. I f the tuition g ran ts are
“benefits to the child”, and not sta te support of the schools, the
legislation is discrim inatory on its face in excluding children attending
church schools. If the g ran ts am ount to sta te support of schools,
support of religious institutions is prohibited by the F irs t Amend
ment—not to speak of the federal constitutional prohibition against
sta te action in supporting segregated schools or the sta te prohibition
against spending public funds fo r private purposes.
The am ount of each g ran t may equal the per-day, per-student
am ount of sta te and local money expended on public schools during
the previous year. I t is determined by the governing authority of the
40
Act 2 in suit, the state would also have the responsibil
ity of furnishing such “private” school children with
school lunches and transportation, the cost of which
would be borne by the state. The program is to be
administered by the State Board of Education, with
the assistance of each local board. In addition, in
order to insure tenure for the teachers in the “pri
vate” schools, Section 1 of Act 417 of the Second Ex
traordinary Session of 1961 empowers the educational
cooperatives to enter into contracts of employment
with teachers for “terms of at least five years, but
not more than ten years.” And to protect the salaries
of the teachers, school bus drivers, school lunch
workers, janitors and other school personnel of the
“private” schools, Section 2 of the same Act18 provides
that such salaries shall not be “less than or in excess
of any minimum salary schedule or law heretofore * 4
local school system. The g ran t application is made to such authority
on a form prescribed by the S tate Board of Education. The g ran t
m ust be approved by the local authority, bu t disapproval may be
appealed through the Louisiana courts. Payments are to be made
jointly to paren ts and schools, in accordance w ith regulations prescribed
by the S tate Board of Education. The S tate Board of Education has
general m anagem ent of the g ran t funds.
The heavy subsidy private schools would receive suggests the
relevance of Kerr v. Enoch Pratt Free Library of Baltimore City,
4 Cir., 149 F. 2d 212, cert, denied, 326 U.S. 721. In th a t case the
Court held th a t a lib rary school, originally private, was converted
into a public instrum entality upon receiving a subsidy amounting to
90 percent of its costs. Although other factors were involved, the
Court said th a t since the sta te had supplied the means of economic
existence it had supplied the means by which the school was able
to discriminate. F ringe benefits such as free lunches are not analogous
to tuition grants.
16La. R.S. 17:350.12.
17La. R.S. 17:2830.
18La. R.S. 17:2831.
41
adopted by the legislature to govern the salaries or
wages of any school teachers, school bus drivers,
school lunch workers, janitors or any other school
personnel.” Acts 9 and 10 were enacted as emergency
legislation on the same day Act 2 became law. Act
9 provides for transfer of funds from the Public
Welfare Fund to the Education Expense Grant Fund.
Act 10 provides for allocation of sales tax revenues
to the Education Fund.
Moreover, to make certain that the “private”
schools are not interfered with by persons who would
accept desegregated education the Legislature
adopted Act 319 and 520 21 of the Second Extraordinary
Session of 1961. Act 3 provides mandatory jail sen
tences and fines for anyone “bribing” parents to send
their children to desegregated schools. It rewards in
formers who report such action with the money col
lected in fines. Act 5 provides mandatory jail sen
tences for anyone inducing parents or school employees
to violate state law, that is, by “attending a school in
violation of any law of this state.” This Act also re
wards the informers. The Legislature at the same
special session, apparently feeling that the St. Helena
Parish School Board as constituted could be trusted
to supervise the “private” school program but doubt
ful about the East Baton Rouge Parish School Board,
subject to the same desegregation order as St. Helena,
passed Act T 1 providing for the packing of the East
18La. R.S. 14:119.1.
20La. R.S. 17:122.1.
21La. R.S. 17:58.
42
Baton Rouge Parish School Board with appointees of
the Governor.
This analysis of Act 2 and related legislation
makes it clear that when the Legislature integrated
Act 2 with its companion measures, expecially the
“private” school acts, as part of a single carefully
constructed design, constitutionally the design was
self-defeating. Of necessity, the scheme requires such
extensive state control, financial aid, and active partic
ipation that in operating the program the state
would still be providing public education. The state
might not be doing business at the old stand; but the
state would be participating as the senior, and not
silent, partner in the same sort of business. The con
tinuance of segregation at the state’s public-private
schools, therefore, is a violation of the equal protec
tion clause. This would be the case in any parish,
should the schools be closed under Act 2. At St.
Helena the discrimination would be immediate,
obvious, and irreparable. See Appendix A. St. Helena
is a poor parish. Its schools receive 97.1 per cent of
their operating revenues from the state. We draw a
fair inference from the record and facts, of which
we may take judicial notice, that it would take ex
traordinary effort for any accreditable private school
to operate in St. Helena without substantial funds and
participation from the state. It would be a miracle if
a single accreditable private school for Negroes could
be established in St. Helena within the foreseeable
future. To speak of this law as operating equally is to
43
equate equal protection with the equality Anatole
France spoke of: “The law, in its majestic equality,
forbids the rich as well as the poor to sleep under
bridges, to beg in the streets, and to steal bread.”22 23
This scheme of the Louisiana Legislature to deny
school children constitutional rights is not new. It
has been tried before, with similar results.28 In de
claring such a scheme unconstitutional, the Eighth
Circuit, in Aaron v. Cooper, 261 F.2d 97, 106-107,
relied heavily on this pronouncement by the Supreme
Court: “State support of segregated schools through
any arrangement, management, funds, or property
cannot be squared with the Fourteenth Amendment’s
command that no State shall deny to any person within
its jurisdiction the equal protection of the Laws.”
Cooper v. Aaron, supra, 19. The ruling here must be
the same.
II
Act 2 runs afoul the equal protection clause in
another respect. Though its immediate purpose is
undoubtedly to circumvent the mandate of Brown24
and our desegregation orders, thereby discriminating
specifically against Negro school children, inevitably,
another effect of the statute is to discriminate geo
graphically against all students, white and colored,
22See Griffin v. Illinois, 351 U.S. 12, 23.
23“P riva te” schemes serving to cloak sta te action violative of the
F ifteenth Amendment have also been exposed. See Terry v. Adams,
345 U.S. 461; Smith v. Allwight, 321 U.S. 649; Perry v. Cyphers,
5 Cir., 186 F. 2d 608; Rice v. Elmore, supra.
24Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294.
44
in St. Helena or any other community where the
schools are closed under its provisions.
Applying familiar principles to the admitted
facts, that conclusion seems inescapable. Thus, it is
clear enough that, absent a reasonable basis for so
classifying, a state cannot close the public schools in
one area while, at the same time, it maintains schools
elsewhere with public funds.26 And, since Louisiana
here offers no justification for closure in St. Helena
Parish alone, and no “state of facts reasonably may
be conceived to justify it,” except only the unlawful
purpose to avoid the effect of an outstanding judgment
of the court requiring desegregation of the public
schools there, it seems obvious that the present classi
fication is invidious, and therefore unconstitutional,
even under the generous test of the economic discrim
ination cases. See McGowan v. Maryland, 366 U.S.
420, 425-428, and cases there cited. But defendants re
ject this simple and direct approach, alleging that
it ignores what they deem controlling differences
in the present legislation. Accordingly, we must ex
amine the question at greater length.
To distinguish the other school closure cases,
particular stress is laid on the local option feature of
the statutory plan. Much is claimed for it. Indeed,
conceding that a legislative or gubernatorial directive
2eJames v. Almond, E.D. Va., 170 F. Supp. 331, appeal dismissed,
359 U.S. 1006; Aaron v. McKinley, E.D. Ark., 173 F. Supp. 944, a f
firm ed sub. nom., Faubus v. Aaron, 361 U.S. 197; Bush v. Orleans
Parish School Board, E.D. La., 187 F. Supp. 42, affirm ed, 365 U.S.
569; id., 188 F. Supp. 916, affirm ed, 365 U.S. 569.
45
closing the public schools in only one parish would be
constitutionally invalid, defendants nevertheless
maintain that there is no denial of equal protection
when the same result is achieved through a decision
of the local authorities rather than the central state
government.26 The argument has two faces. First, it is
said that the state legislature itself is guilty of no
discrimination, since its statute treats all communities
alike and imposes school closure on none. Then, chang
ing the focus to the local scene, the contention is
that when the parish school authorities close all their
schools, having delt impartially with everyone within
their limited jurisdiction, they cannot be accused of
discriminating. And here defendants cite the swim
ming pool and park cases. See Tonkins v. City of
Greensboro, North Carolina, 4 Cir., 276 F.2d 890;
City of Montgomery, Alabama v. Gilmore, 5 Cir., 277
F.2d 364.
The St. Helena Parish School Board may not be
discriminating geographically when it expends the
full measure of its power by closing all schools under
its control, but that does not make the rule of Tonkins
and Gilmore applicable. Indeed, even if recreation is
viewed in the same constitutional light as public ed
ucation, the rationale of those cases applies only
when the facilities sought to be closed are locally
owned, financed and administered, and the state it
2GDefendants of course concede, as they must, th a t the act of
the local school board is “sta te action” w ithin the scope of the Four
teenth Amendment. See Home Tel. & Tel. Co. v. Los Angeles, 227
U.S. 278.
46
self is not directly concerned in their operation. See
City of Montgomery, Alabama v. Gilmore, supra,
368, n. 4. In such case, only local action is involved,
and so long as the closure order is general and affects
all residents equally, there is no discrimination at any
level. But the same principle does not excuse in
equalities in a statewide, centrally financed and ad
ministered, system of public institutions.37
There can be no doubt about the character of
education in Louisiana as a state, and not a local,
function. The Louisiana public school system is ad
ministered on a statewide basis, financed out of funds
collected on a statewide basis, under the control and
supervision of public officials exercising statewide au
thority under the Louisiana Constitution and appro
priate state legislation. The State Supreme Court has
said so emphatically:
“*** Public education is declared by the consti
tution to be an affair of the state, and it assumes
the whole responsibility of public education.***”
Nelson v. Mayor, etc., of Town of Homer, 48 La.
Ann. 258,19 So. 271.
Again in Hill v. DeSoto Parish School Board, 177 La.
329,148 So. 248,250:
“Under article 12 of the Constitution, section 1,
(free public schools are part of the educational
system of the state. Q In section 10 of that article
it is provided that ‘The Legislature shall provide
for the creation and election of parish school
See cases cited in Note 25.
47
boards which shall elect parish superintendents
for their respective parishes.’ Pursuant to this
mandate, the Legislature of 1922, by Act No. 100,
§ 17, created a parish school board for each of
the parishes of the state and constituted them
bodies corporate in law with full power and au
thority to make rules and regulations for their
own government not inconsistent with the rules
and regulations of the state board of education.
(These boards are public corporations and are
created for the purpose of administering for the
state the public school affairs of their respective
parishes. Their functions are purely of a public
character. In matters relating to the free public
schools of their parishes, they are the governing
authorities not only for the parish as a whole,
but for each and all such school districts as may
be created. They are state agencies, a part of the
state government.***” (Emphasis added.)
See State v. City of New Orleans, 42 La.Ann. 92, 7
So. 674, 677; State v. Barham, 173 La. 488, 137 So.
862, 864; Singelmann v. Davis, 240 La. 929, 125 So.
2d 414, 417. See also Appendix A.
Despite defendants’ argument to the contrary,
none of the recent amendments to Article XII of the
Louisiana Constitution have affected the control of
public education by the state. See Acts 747 and 752 of
1954; Act 557 of 1958. Indeed, in its most recent form,
that Article still provides for a single state system:
“The Legislature shall have full authority to
make provisions for the education of the school
children of this State and/or for an educational
48
system which shall include all public schools and
all institutions of learning operated by State
agencies.***”
La. Const., Art. XII, § 1.
Public education remains the concern of the central
state government, and ultimate control still rests with
the State Legislature and the State Department of
Education. The best proof of this is in the recent his
tory of the New Orleans schools. See cases cited in
Note 4, and State v. Orleans Parish School Board,
La.App., 118 So. 2d 471; Singelmann v. Davis, supra.
See also La. R.S. 17:1-20; La. R.S. 17:151-166; La.
R.S. 17:221-232; La. R.S. 17:261-268; La. R.S. 17:-
335, 349.4; La. R.S. 17:351-395.6; La. R.S. 17:411-
430; La. R.S. 17:441-1304. Nor does Act 2, here in
volved, change the status of the public school system.
Except in the matter of closure, there has been no
decentralization; and where closure is ordered under
Act 2, the elaborate state-controlled discriminatory
scheme, described in Part I hereof, goes into effect.
The funds, the supervision, the accreditation, still
come from the state.38 The plain fact is that the state
has not even made a pretense of abandoning its con
trol of education to autonomous subdivisions.
In these circumstances, the true focus is not on
the doings of any board, but rather on the action of
the state government. The discriminatory scheme em
bodied in Act 2 originated there. It is true that the
Legislature has imposed no inequality, but its instru-
28See Appendix A.
49
ment encourages it, expressly permits it. And that is
equally condemned." * * * no State may effectively
abdicate its responsibilities by either ignoring them
or by merely failing to discharge them whatever the
motive may be.” Burton v. Wilmington Pkg. Auth.,
365 U.S. 715, 725. See also Terry v. Adams, supra,
469 (opinion of Mr. Justice Black). Applying the
rule of Brown to geographical discrimination, "All
provisions of federal, state, or local law requiring or
permitting such discrimination must yield to this
principle.” (Emphasis added.) Brown v. Board of
Education, 349 U.S. 294, 298.
The equal protection clause speaks to the state.
The United States Constitution recognizes no govern
ing unit except the federal government and the state.
A contrary position would allow a state to evade its
constitutional responsibility by carve-outs of small
units. At least in the area of declared constitutional
rights, and specifically with respect to education, the
state can no more delegate to its subdivisions a power
to discriminate than it can itself directly establish
inequalities. When a parish wants to lock its school
doors, the state must turn the key. If the rule were
otherwise, the great guarantee of the equal protec
tion clause would be meaningless.
The consequence is that the local option device
cannot save Act 2. Nothing in the cases cited by de
fendants suggests that it can. Indeed, in upholding
local option liquor laws in Rippey v. Texas, 193 U.S.
504, and Lloyd v. Dollison, 194 U.S. 445, the Court
50
specifically rests its decision not on the local option
feature of the challenged legislation but, expressly,
on the proposition that the same result would be
constitutionally permissible if achieved by direct
action of the legislature, because “The State has
absolute power over the subject.” 193 U.S. at 510; 194
U.S. at 448-449. The crucial question goes to the
substance of the legislation that is being enacted by
the local option device. If it violates the equal pro
tection clause or any other constitutional provision,
enactment by local option will not save it. More
recently, the Court has emphasized that whenever
differences are constitutionally inoffensive, it is imma
terial how they come into being, whether by local
option or through a classification made at the central
legislative level. See Ft. Smith Light Co. v. Paving
Dist., 274 U.S. 387, 391; Salsburg v. Maryland, 346
U.S. 545, 552-553/“ In short, whatever inequalities
result from the implementation of Act 2 must be
attributed directly to the Louisiana Legislature. As
defendants themselves concede, whatever may be the
rule with regard to the privilege of dispensing alcoholic
beverages, the state itself cannot discriminate in the
S8The holding of Salsburg v. M aryland perm itting the sta te to
tre a t differently, fo r d ifferent localities, the rule against admissibility
of illegally obtained evidence no longer obtains in view of Mapp v.
Ohio, 367 U.S. 643. Accordingly, reliance on th a t decision fo r the
proposition th a t there is no constitutional inhibition to geographic
discrimination in the area of civil r igh ts is misplaced. Salsburg
was not a local option case, fo r it involved simply an endorsement of
the classification made by the legislature itself in trea ting its sub
divisions; the Court emphasized th a t the m atter was purely “pro
cedural” and “local.” Here, the substantive classification is discrim
inatory, and reliance is had on local option to save the legislation.
51
field of education. There is, of course, greater freedom
to classify geographically when the state is regulating
a private activity than when it is conferring a govern
mental benefit. When the state provides a benefit,
it must do so evenhandedly. “Such an opportunity,
where the state has undertaken to provide it, is a
right which must be made available to all on equal
terms.” Brown v. Board of Education, 347 U.S. 483,
493.
There can be no question about the actual in
equality in educational opportunities that will follow
closure of the public schools in St. Helena Parish,
or any other community that invokes the Act. Grants-
in-aid, no matter how generous, are not an adequate
substitute for public schools. See Missouri ex rel.
Gaines v. Canada, 305 U.S. 337. If a private school
system could be established in St. Helena under the
aegis of the state, there would still be lacking the
organizational and administrative advantages, as well
as economies, of operating as a member of a state
system. There would be a total lack of the accredita
tion that is automatic in the case of a public school
but absent in the case of a private school except when
the school has met educational standards over a period
of years. Moreover, under the Louisiana plan these
subsidies would afford entry to segregated schools
alone. See James v. Almond, supra, 337. Compare
Allen v. County School Board of Prince Edward
County, S.D. V a .,...........F.Supp.............. (8/25/61).
Finally, the requirement of a popular referendum
on the question of closure adds nothing to the chal
52
lenged statute. One of the purposes of the Constitu
tion of the United States was to protect minorities
from the occasional tyranny of majorities. No plebi
scite can legalize an unjust discrimination.30 “One’s
right to life, liberty, and property * * * and other
fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.” Board
of Education v. Barnette, 319 U.S. 624, 638. See Boson
v. Rippy, 5 Cir., 285 F.2d 43,45.
This is not the moment in history for a state
to experiment with igorance. When it does, it must
expect close scrutiny of the experiment. For the
reasons stated, we conclude that Act 2 of the Second
Extraordinary Session of the Louisiana Legislature
for 1961 is unconstitutional. The court will prepare
a temporary injunction restraining its enforcement.
/s/John Minor Wisdom,
United States Circuit Judge
/s/Herbert W. Christenberry,
United States District Judge
/s /J . Skelly Wright,
United States District Judge
New Orleans, Louisiana
August 30,1961
30No one in the Louisiana Legislature could have considered an
election under Act 2 as a bona fide local option or as a popular re f
erendum. Published reports for St. Helena showed 1461 white and
111 negro voters eligible to vote. Election re tu rns showed 1147 votes
for and 56 against authorizing the School Board to close the schools.
This is like having only the cats vote on a program fo r kittens and
young mice. “The rig h t of negroes to attend the public schools w ith
out discrimination upon the ground of race cannot be made to depend
upon the consent of the members of the m ajority race.” Kelley v. Board
of Education of City of Nashville, M.D. Tenn., 159 F. Supp. 272, 278.
53
Appendix A
The legislative program for closing those public
schools under court order to desegregate (the schools
reopening as segregated private schools subsidized by
the state) has an inseparable connection with certain
background facts. Although these facts are in the
background they dominate the picture as a whole and
especially dominate the St. Helena scene. All are
within a proper factual frame of reference for an
understanding of the picture.
The red dirt hills of St. Helena Parish are on the
Mississippi state line, east of East Feliciana Parish,
west of Tangipahoa Parish, north of Livingston
Parish, and about one hundred miles north-northwest
of New Orleans. According to the 1960 census, St.
Helena has a population of 9,162, an increase of 79
over 1950. There are 4076 white persons and 5086
colored persons in the parish. The largest community,
Greensburg, has a population of about 425. The Lou
isiana Almanac and Fact Book (1956), describing St.
Helena, states: “St. Helena is the center of short leaf
and loblolly pine production. The principal crops are
cotton and corn.” See also Rand McNally Commercial
Atlas (1960) p. 192. In an earlier proceeding the dis
trict attorney for St. Helena Parish told the court:
“St. Helena is strictly a country parish with no in
dustries whatsoever, where the only industries are
welfare and politics.” The estimated 1960 per capita
income (after taxes) of St. Helena was $894 against
$1474 for the state and $1974 for the nation. Sales
54
Management Annual Survey of Buying Power, May
10, 1961, pp. 156, 157, 690. Figures for 1960 show
852 public welfare grants to 1325 persons in St.
Helena at an annual cost of $768,000. Louisiana Pub
lic Welfare Statistics, State of Louisiana Public Wel
fare Department, June 1961, Table 14, p. 20.
All of Louisiana’s parishes receive substantial
support from the state: a total for all parishes of 77
percent, 72 percent through direct support and 5 per
cent through state payment of school taxes on exempt
homesteads. In 1957-58 state support of school opera
tions amounted to 85 percent of operating revenues,
82 percent through direct state support for school
operations. In 1957-58 only two of Louisiana’s 67
school systems provided more than 30 percent of
their operating revenues from local sources. In 1957-
58 St. Helena received 97.1 percent of its public school
operating revenues from state and federal sources;
only two other parishes received a greater percentage
of non-local aid to public schools. See Financing Pub
lic Schools, a PAR study published by the Public Af
fairs Reserch Council of Louisiana (1959) p. 11, 12,
30-31. See also Circular No. 4615, Aug. 20, 1960,
Louisiana State Department of Education and Bul
letins 887 and 904 of the Louisiana State Department
of Education.
The Louisiana Constitution (Article 12, Section
14) requires three-fourths of the State Public School
Fund to be distributed to the parish school boards in
the proportion that the number of educable children,
55
from six to eighteen years of age inclusive, bears to
the total number of such educable children in the
state. The affidavit of J. L. Meadows, Superintendent
of the St. Helena Parish School Board filed in the
record, shows that for 1959-60 St. Helena received
from this fund $159,280. The other one-fourth of the
State Public School Fund, known as the “Equalization
Distribution Fund”, assures sufficient revenues to
permit every parish school system to maintain a mini
mum or foundation educational program. The ap
proved formula for distributing this fund is under the
State Board of Education and is established under
rules and regulations set forth in the Constitution of
Louisiana, Article XII, Section 14. Mr. Meadows
stated that the St. Helena School Board received
$683,312 from this fund for 1960-61; $20,000 from
other state sources; and $24,774 from the five mill ad
valorem tax authorized for the operation and mainte
nance of the schools in St. Helena. According to Mr.
Meadows, for 1958-59 the St. Helena School Board
had a deficit of $110,000.
Bulletin 904, the 110th Annual Report of the
State Department of Education of Louisiana 1958-59
shows that the St. Helena School Board received
$901,080 from state, federal, and special sources;
(Table 111, p.173) $47,548 from parish sources (Table
111, p. 177). Total expenditures, balances, and over
drafts for 1958-59 amounted to $1,363,009 (Table 111,
p. 261).
As of January 30, 1959, the annual inventory of
56
Louisiana Public School property, published by the
State Department of Education, showed $344,067,058
as the total cost of the buildings, sites, and equipment
for all white schools, and $131,255,672 for all negro
schools; $555,711 for white schools in St. Helena and
$483,308 for negro schools. Bulletin 904, Department
of Education, Table XIII, pp. 319-320.
The total indebtedness as of June 30, 1959, of all
school boards in the 67 school districts in Louisiana
was $325,007,869; $961,773 in St. Helena, secured
by a special tax for construction. Bulletin No. 904, De
partment of Education, Table VII, p. 279.
There are very few private schools in Louisiana
except in parishes having a large Catholic population.
There are no private schools for white or negro stu
dents in St. Helena and none in the adjacent
parishes (except for three Catholic elementary schools
for white students in Tangipahoa). See Louisiana
School Directory, Session 1960-61, Bulletin No. 923,
State Department of Education of Louisiana.
There is a close correlation between the state
wide effort to raise the educational level in Louisiana
and the necessity for state aid to parishes having a
sub-par econcomy. Among the fifty states, in terms
of percentage, Louisiana ranks 50th from the top in
the number of its citizens, 25 years or older, having
five years schooling; 44th in the number of persons
having four years of high school; 48th in the success
of its citizens in passing Selective Service Mental
Tests; 48th in those 14 years or older able to read.
57
But in 1959 it ranked first among the states in the
ratio of state expenditures for schools to personal in
come; seventh in the ratio of state revenues to state
aid to schools; third in the estimated revenue from
state sources per instructional staff member ($6,678);
and fifth in revenues from state sources per pupil
($298). Research Report 1960-R1, Ranking of the
States, National Education Association. This mighty
effort on the part of Louisiana is a phase of the edu
cational problem that is often overlooked. Contin
uance of the effort at comparable level by private
persons, commendable as it might be, would impose a
disproportionately heavy burden on such parishes as
St. Helena.
These statistics demonstrate beyond a doubt that
public education in Louisiana is not, as the defendant
contends, a matter of local concern. The system is
based on the concern of the whole state for all its
citizens. It could not have developed without the state;
it could not have been operated except by the state.
A parish such as St. Helena receives 97.1 percent
state (and some federal) help because the state as a
whole has a direct interest in equalizing educational
opportunities so as to aid under-privileged parishes.
St. Helena receives $405.73 from the state for each
pupil (taking the average daily attendance) as
against $332.33 the Orleans Parish School Board re
ceives per pupil—because the state is not willing to
allow the St. Helena school children to receive an edu
58
cation inferior to the education offered school children
in New Orleans.
These then are dominating facts: (1) there are
no existing private schools in St. Helena; (2) adequate
facilities, buildings, and equipment, to be anywhere
nearly equivalent to existing public school facilities
would cost in excess of one million dollars; (3) the
present annual local contribution of $47,000 is a far
below the present annual operating expense of over a
million dollars; (4) excluding fringe expenses, in
order to equal the allowance the state now turns over
to St. Helena, tuition for each child would amount to
$405.73. It is dead certain, therefore, that absent ac
tive, extensive unconstitutional state support of pri
vate schools, closing of public schools in St. Helena
under Act 2 will mean the end of school education for
all children in the parish, white and negro, except a
handful of well-to-do white children. This then is the
legislature’s option: segregated schools contrary to
the equal protection clause—or no schools.
59
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BATON ROUGE DIVISION
No. 1068 CIVIL ACTION
Lawrence Hall, E t Al, Plaintiffs
v.
St. Helena Parish School Board, E t Al,
Defendants
TEMPORARY INJUNCTION
This case came on for hearing on motion of the
plaintiffs for temporary injunction, restraining the
enforcement of Act 2 of the Second Extraordinary
Session of the Louisiana Legislature for 1961.
It being the opinion of this court that all Lou
isiana statutes which would directly or indirectly
require or permit segregation of the races in the
public schools are unconstitutional, in particular, the
aforesaid Act 2.
IT IS ORDERED that the St. Helena Parish
School Board and the members thereof, J. H. Meadows,
St. Helena Parish Superintendent of Schools, their
successors, agents, representatives, attorneys, and all
other persons who are acting or may act in concert
with them, be, and they are hereby, restrained, en
joined and prohibited from enforcing or seeking to
enforce by any means the provisions of Act 2 of the
Second Extraordinary Session of the Louisiana Leg
islature for 1961.
IT IS FURTHER ORDERED that copies of this
temporary injunction shall be served forthwith upon
60
each of the defendants named herein.
IT IS FURTHER ORDERED that the plaintiffs
herein file a bond in the amount of One Hundred
Dollars ($100) as required by Rule 65(c), F.R.Civ.P.
/s/John Minor Wisdom,
United, States Circuit Judge.
/s/Herbert W. Christenberry,
United States District Judge.
/s /J . Skelly Wright,
United States District Judge.
New Orleans, Louisiana
August 30,1961.
61
APPENDIX <SB”
ACT 2
HOUSE BILL NO. 1
An Act to provide that in each parish of the state
and each municipality having a municipally oper
ated school system, the school board shall have
authority to suspend or close the operation of the
public school system in the elementary and second
ary grades after an election has first been held
at which a majority of the qualified voters voting
in said election have authorized such suspension
or closing; to provide that such election shall be
held in accordance with the general election laws
of the state; to make provision relative to the
calling of said election; to provide for the manner
in which the suspension of such operation of the
public school system in such grades may be ter
minated ; to provide the content of the propositions
appearing on the ballot in such election; to provide
for the promulgation of the returns of said elec
tion; to provide that this Act shall not limit the
authority of school boards to provide school lunches,
transportation of school children or grant-in-aid
scholarships to children in attendance at private
schools; to authorize the lease or sale of any school
property by parish or city school boards; to pro
vide that this Act shall be in addition to other
laws on the same subject matter and shall not
be held to repeal same; to authorize the abolition
of school taxes by school boards, except taxes
dedicated and needed to retire outstanding school
bonds in parishes and municipalities where the
suspension or closure of the public schools has
been authorized by vote of the qualified electors;
62
and to make provision for the effective date of
this Act.
Be it enacted by the Legislature of Louisiana:
Section 1.
In each parish of the state, and in each munici
pality having a municipally operated school system,
the school board shall have authority to suspend or
close, by proper resolution, the operation of the public
school system in the elementary and secondary grades
in said parish or municipality, but no such resolution
shall be adopted by any such board until the question
of suspending or closing the operation of such public
school system in such grades shall have been submitted
to the qualified electors of the parish or municipality,
as the case may be, at an election conducted in ac
cordance with the general election laws of the state,
and the majority of those voting in said election shall
have voted in favor of suspending or closing the opera
tion of such public school system.
Section 2.
The election provided for in Section 1, of this
Act may be called by each parish or municipal school
board on its owTn initiative, but upon the petition of
ten per cent of the qualified electors of said parish
or municipality, as the case may be, the school board
shall call said election within ten (10) days after the
date on which the petition is received by said board.
The board shall determine and fix the date on which
such election shall be held, which date shall be not less
63
than thirty (30) nor more than sixty (60) days after
the date on which the election is called.
Upon failure of the school board to call and fix
the date of said election as above provided, the Parish
Board of Supervisors of Elections may issue a procla
mation to provide therefor.
Section 3.
The petition referred to in the preceding Section
shall be addressed to the parish or municipal school
board, as the case may be, and shall be in sub
stantially the following form:
PETITION
TO: (Name of parish or municipal school board)
The undersigned qualified electors respectfully
request that you call an election to submit, in the
manner provided by law, to the qualified electors of
-------------- Parish (or municipality in case the school
system is operated by a municipal school board),
the following proposition:
TO AUTHORIZE T H E ...................PARISH (or
municipal) SCHOOL BOARD TO SUSPEND OR
CLOSE THE OPERATION OP THE PUBLIC
SCHOOL SYSTEM IN THE ELEMENTARY AND
SECONDARY GRADES IN SAID PARISH (or mu
nicipality in case of a municipally operated school
system).
Signature Address Date
Signatures may be made on more than one sheet
64
of paper but each such sheet of any such petition
shall reproduce above the signatures the same matter
as is on the first sheet. Each qualified elector sign
ing such petition shall sign his or her own name in
his or her own handwriting and shall write his or her
address and the date on which his or her signature
was affixed.
Section 4.
The petition, or petitions, shall be filed with the
Registrar of Voters and when so filed shall become
a public record and cannot be returned to the pro
ponents or signers thereof.
The Registrar of Voters shall cause the petition
to be published in the Official Journal of the parish
or municipality, as the case may be, at the earliest
possible time. The expense of such publication shall
be paid by the school board to which the petition
is addressed. Where multiple petitions are submitted,
the portion appearing above the signatures shall be
reproduced only once in the publication.
Section 5.
The Registrar of Voters shall examine the petition
and attach thereto his sworn verification showing:
(1) The date the petition was filed in his office;
(2) Copy of the Official Journal showing publica
tion of the Petition;
(3) The number of qualified electors of the parish
or municipality, as the case may be, on the registra
tion rolls as of the date of the filing of the petition,
65
which date shall be used by him in ascertaining
whether the petition contains the required number of
signatures;
(4) That he has examined each signature for its
genuineness by comparing the signature on the petition
with the signature of the same person on the regis
tration rolls;
(5) The total number of genuine signatures of
qualified electors on the petition; and
(6) The number of signatures on said petition
which are not genuine.
The said Registrar of Voters shall file the peti
tion, with his sworn verification, with the school
board to which it is addressed.
Section 6.
The school board with which the petition is filed
by the Registrar of Voters shall endorse or cause to
be endorsed thereon the day, month and year the
petition was received by said board.
If the petition conforms to the provisions of this
Act, said board shall order the election by proper
resolution. Said resolution may be adopted at either
a regular or special meeting of said board, held not
less than ten (10) days after the date on which the
petition was received from the Registrar of Voters.
Section 7.
When the election provided for in this Act has
been ordered, the following propositions, and no others,
shall be printed upon the ballot:
66
FOR the proposition to authorize the .... ..............
Parish (or municipal) School Board to suspend or
close the operation of the public school system in the
elementary and secondary grades in said parish (or
municipality in case of a municipally operated school
system).
AGAINST the proposition to authorize the
____ ____ Parish (or municipal) School Board to
suspend or close the operation of the public school
system in the elementary and secondary grades in
said parish (or municipality in case of a municipally
operated school system).
Voting machines shall be used in such election
in the manner provided by the voting machine laws
contained in Chapter 5 of Title 18 of the Louisiana
Revised Statutes of 1950.
Section 8.
The election provided for in this Act shall be
supervised by the Board of Supervisors of Elections
for the parish in which the election is called. Said
Board of Supervisors shall appoint three commissioners
and one clerk to preside over the election at each
polling precinct. These appointees shall be qualified
electors and residents of the precinct in which they
serve.
Section 9.
The board calling the election shall promulgate
the result thereof by resolution adopted at its first
regular or special meeting following the date of the
67
election and shall publish said result in the official
Journal of the parish or municipality, as the case
may be.
Section 10.
Except as otherwise specifically provided in this
Act, the provisions of the general election laws of
this state shall govern the call, conduct and promulga
tion of the result of any election held pursuant to
the authority contained in this Act.
Section 11.
Each parish or municipal school board which
has suspended the operation of the public school sys
tem in the elementary and secondary grades pursuant
to the authority contained in this Act, may terminate
such suspension and resume the operation of such
school system only after having been authorized to
do so by a further election to which all of the provi
sions of this Act shall be applicable except that the
propositions printed upon the ballot shall be as follows:
FOR the termination of the suspension of the
operation of the public school system in the elemen
tary and secondary grades in __ __ ___ Parish (or
municipality in case of a municipally operated school
system).
AGAINST the termination of the suspension of
the operation of the public school system in the
elementary and secondary grades i n ..... ..... .... . Par
ish (or municipality in case of a municipally operated
school system).
68
Section 12.
Nothing contained in this Act shall operate or
be construed to limit or impair the authority of any
school board to provide school lunches, transporta
tion of school children or grant-in-aid scholarships
to children in attendance at private schools.
Section 13.
Any parish or city school boards may lease, sell,
or otherwise dispose of, for cash or on terms of credit,
any school site, building or facility not used or needed
in the operation of any schools within its jurisdiction,
on such terms and conditions and for such considera
tion as the school board shall prescribe.
Section 14.
School boards, in parishes or municipalities in
which such election to suspend or close the public
schools is carried by a majority of the votes cast
therein, may close their schools and may thereafter
abolish school taxes, except such taxes as are dedicated
and needed to service and retire their outstanding
school bonds.
Section 15.
If any part or parts, Section, sentence, clause or
phrase of this Act, or the application thereof, to any
person or circumstance, is for any reason declared
unconstitutional, such declaration shall not affect the
validity of the remaining portions of this Act which
shall remain in force as if such Act had been enacted
with the unconstitutional part or parts, Section, sen
69
tence, clause, phrase, or such application thereof elimi
nated, and to this end the provisions of this Act are
declared to be severable; and the Legislature of Lou
isiana hereby declares that it would have enacted
this Act if such unconstitutional part or parts had
not been included herein, or if such application had
not been made.
The provisions of this Act are in addition to other
laws on the same subject matter and shall not be held
to repeal same except in a case of conflict and then
only to the extent of such conflict.
Section 16.
The necessity for the immediate passage of this
Act having been certified by the Governor to the Legis
lature while in session, in accordance with Section 27
of Article III of the Constitution of Louisiana, this
Act shall become effective immediately upon approval
by the Governor.
Approved: February 20, 1961 at 11:35 A.M.
70
APPENDIX “C”
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
BATON ROUGE DIVISION
CIVIL ACTION No. 1068
Lawrence Hall, E t Al ., Plaintiffs
v.
St. Helena Parish School Board, A nd J. L.
Meadows, Superintendent, Defendants.
ORDER ADDING PARTIES DEFENDANT
IT APPEARING from the motion of the United
States amicus curiae herein, that it is in the interest
of justice to add as parties defendant in this action
the STATE OP LOUISIANA; JIMMIE H. DAVIS,
Governor of Louisiana; JACK P. F. GREMILLION,
Attorney General of Louisiana; MURPHY J. RODEN,
Director of Public Safety of Louisiana; DUNCAN S.
KEMP, District Attorney of St. Helena Parish; and
R. D. BRIDGES, Sheriff of St. Helena Parish,
IT IS ORDERED that each of them be and they
are hereby added as parties defendant in this action,
and the marshal is directed to serve upon each of
them a copy of this order together with a copy of the
motion and petition of the United States.
New Orleans, Louisiana, March 17th 1961.
/s /J . Skelly Wright
United States District Judge
2605-B, 10-61