Orleans Parish School Board v. Bush Court Opinion

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  1 6 1 9 0

ORLEANS PARISH SCHOOL BOARD,
Appellant,

versus

EARL BENJAMIN BUSH, ET AL,
Appellees.

Appeal from the United States District Court for the 
Eastern District o f Louisiana.

(March 1, 1957.)

Before RIVES, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge: This is an appeal in an ac­
tion on behalf of certain New Orleans Negro school chil­
dren from a judgment of the District Court for the East­
ern District of Louisiana enjoining appellant “from re­
quiring and permitting segregation of the races in any 
school under their supervision, from and after such time 
as may be necessary to make arrangements for admission



2 Orleans Parish School Board v. Bush, et al.

of children to such schools on a racially non-discrimina- 
tory basis with all deliberate speed as required by the 
decision of the Supreme Court in Brown, et al v. Board 
of Education of Topeka, et al, 349 U.S. 294.”

The principal grounds of appellant’s attack on the va­
lidity of this order are: (1) This was a suit against
the State of Louisiana and is prohibited by the XI Amend­
ment to the Constitution; (2) The complaint failed to 
state a claim on which relief could be granted; (3) The 
court erred in holding that the provisions of Art. XII, 
§1 of the Louisiana Constitution requiring separate schools 
for white and colored children and that all of Louisiana 
Act 555 and Section 1 of 556 of 1954 requiring segregation 
and assignment of pupils respectively in public schools 
were invalid; (4) The proof on behalf of plaintiffs 
and countershowing by defendant did not warrant the 
issuance of a temporary injunction. These points as 
well as subsidiary questions will be discussed after a 
brief statement of the factual background.

On November 12, 1951, appellees petitioned the School 
Board “to end at once the practice and custom of dis­
criminating against Negro students solely on account of 
their race and color and admit these Negro children and 
all others similarly situated to the public schools of Orleans 
Parish which have heretofore and are now restricted to 
the enrollment of white children.” This petition was 
denied by official action of the Board on November 26, 
1951.1 On February 19, 1952, an appeal was taken to
1 This action was taken several years before the adoption of 

the pupil assignment law with its provisions for administra­
tive relief, which will be discussed later.



the State Board of Education; no reply having been re­
ceived, appellees again, on August 14th, requested action 
on their petition; on August 27th a reply was received 
over the signature of the Secretary of the State Board, 
which while not categorically denying the petition stated: 
“The Board feels that many of the items included are 
wholly within the jurisdiction of the Board.”2 On Sep­
tember 5, 1952, the original complaint in this action was 
filed. It alleged great disparities between the physical 
plant and the content of the curricula of Negro and white 
schools, and also alleged discrimination because of segre­
gation per se. It alleged that the Board was pursuing 
a policy and custom of maintaining separate schools for 
white and Negro children under the provisions of Art. 
XII, Sec. 1 of the Louisiana Constitution. It sought a 
declaratory judgment on the questions, among others, 
(a) “whether the policy, custom, practice and usage of 
defendants . . .  in denying on account of race or color 
to infant plaintiffs and others similarly situated . . . 
educational opportunities, advantages and facilities . . . 
equal to the educational opportunities, advantages and 
facilities afforded and available to white children . . . 
is unconstitutional and void as being a denial of the 
equal protection of the laws guaranteed under the Four­
teenth Amendment to the Constitution of the United 
States;” (b) “whether Article XII Sec. 1 of the Constitu­
tion of 1921 of the State of Louisiana which prohibits 
infant plaintiffs from attending the only public schools 
of Orleans Parish where educational opportunities, ad­
2 The petition had pointed out many alleged inequalities be­

tween the facilities in the white and Negro schools. In any 
event this is either a rejection of the request or a statement 
that the Parish Board had final jurisdiction.

Orleans Parish School Board v. Bush, et al. 3



vantages and facilities equal to those afforded all other 
qualified pupils . . .  are available and force them to 
attend secondary schools in Orleans Parish solely be­
cause of race and color is unconstitutional and void as 
a violation of the Fourteenth Amendment of the Con­
stitution of the United States.” It also prayed a judg­
ment declaring that the separate schools provision of Ar­
ticle XII Sec. 1 of the Louisiana Constitution is a denial 
of the equal protection clause of the Fourteenth Amend­
ment and is therefore unconstitutional and void, and for 
a permanent injunction enjoining defendant Board from 
following such provision as being in contravention of 
rights guaranteed under the United States Constitution.

By stipulation proceedings on this complaint were sus­
pended on account of the pendency of the school Segre­
gation cases3 in the Supreme Court of the United States.

After the first opinion in the Brown case the State 
Legislature of Louisiana proposed and the people adopted 
an amendment to Art. XII Sec. 1 of the State Constitu­
tion which had already provided, in effect, that all public 
elementary and secondary schools should be operated 
separately for white and colored children by adding that 
“This provision is made in the exercise of the state police 
power to promote and protect public health, morals, better 
education and the peace and good order in the State, 
and not because of race. The Legislature shall enact 
laws to enforce the state police power in this regard.” 
The Legislature then promptly enacted Acts 1954, No. 555 
and 556. Section 1 of 555 merely repeated the constitu­
8 Brown v. Board of Education of Topeka, Kans., 347 U.S.

483 and related cases.

4 Orleans Parish School Board v. Bush, et al.



Orleans Parish School Board v. Bush, et al. 5

tional requirement of separate schools. Section 2, 3 and 
4 provide for penalties to be imposed on local boards and 
an individual failing to observe the requirements as 
to separate schools in Section 1. Section 5 is a separ­
ability clause.4 Act 556, adopted at the same time, is the 
pupil assignment statute. It provides for assignment of 
each pupil each year by the parish superintendent to a
4 Act 555 in full is as follows:

“Separate operation required
“All public elementary and secondary schools in the 

state of Louisiana shall be operated separately for white and 
colored children. This provision is made in the exercise of 
the State police power to promote and protect public health, 
morals, better education and the peace and good order in the 
state and not because of race. Acts 1954, No. 555, Section 1. 
“Non-recognition of schools violating Sub-part

“The State Board of Education shall not approve any 
public schools which may violate the provisions of this 
Sub-part nor shall any of the state colleges or university 
recognize any certificate of graduation from such public 
school which may violate the provisions of this Sub-part 
as entitling the holder thereof to admission. Acts 1954, 
No. 555, Section 2.
“ Schools violating Sub-part to be deprived of supplies and 
funds

“No free school books or other school supplies shall be 
furnished, nor shall any state funds for the operation of 
school lunch programs, or any other school funds be fur­
nished or given to any public elementary or secondary school 
which may violate the provisions of this Sub-part as above. 
Acts 1954, No. 555, Section 3.
“Penalty for violations

“Any person, firm or corporation violating any of the 
provisions of this Sub-part shall be deemed guilty of a mis­
demeanor and upon conviction therefor by a court of com­
petent jurisdiction for each such violation shall be fined not 
less than five hundred dollars nor more than one thousand 
dollars, or sentenced to imprisonment in the parish jail not 
less than ninety days nor more than six months, or both, 
fined and imprisoned as above, at the discretion of the court. 
Acts 1954, No. 555, Section 4.

“In case any part of this Act shall be held to be un­
constitutional, this shall not have the effect of invalidating 
any part of it that is constitutional, and the part or parts 
not affected by such ruling shall continue in full force and 
effect. This Act shall be liberally construed to protect and 
preserve the State Police Power as provided in this Act.” 
Acts of 1954, No. 555, Section 5.



Orleans Parish School Board v. Bush, et al.

particular school, and, without providing any standards 
other than those of Act 555 for separation of the races, 
provides for an appeal to the local board and then to 
the State Board and thereafter to the state district court.5
8 Act 556, Sec. 1, in full is as follows:

“ASSIGNMENT OF CHILDREN TO PARTICULAR 
SCHOOLS BY PARISH SUPERINTENDENT; HEAR­
INGS; REVIEW BOARD; APPEAL 

“Each parish superintendent of schools, throughout this 
state, shall, each year, determine the particular public school 
within each parish to be attended by each school child 
applying for admission to public schools. No school child 
shall be entitled to be enrolled or to enter into a public school 
until he has been assigned thereto in accordance with the 
provisions of this Section. In the event of dissatisfaction 
with the school assignment made by the superintendent, the 
parents or next of kin to the child affected, within ten days 
from the date of assignment may apply to the school super­
intendent for a hearing to have said child assigned to some 
other public school in the parish, in which case the super­
intendent shall grant a hearing, and within thirty days after 
the conclusion of said hearing, the superintendent shall hand 
down a decision in writing either sustaining his school as­
signment in question or changing the same. The action of 
the parish superintendent shall be reviewable by the parish 
school board upon application of any person paying ad 
valorem taxes for the support and maintenance of the public 
schools or on the application of any other party in interest. 
Any such application for review shall be filed with the 
parish sehool board within thirty days from the day the 
action complained of was taken and within sixty days 
thereafter, said parish school board shall hold a hearing at 
which evidence shall be taken down and transcribed, the 
cost thereof to be paid for by the party making said ap­
plication prior to submission of the matter to the school 
board. The school board shall have the right to require ap­
plicant to furnish bond for costs within a reasonable sum, 
properly secured, prior to the holding of said hearing. The 
parish school board shall consider the evidence so adduced 
and as soon as practicable render its decision in writing. 
Any person, having applied for and secured a hearing by 
the parish school board who feels aggrieved by the ruling 
of said board shall have the right to apply to the district 
court of the domicile of the said board and the right to ap­
peal from the judgment of the district court to the ap­
propriate court of appeal, provided, however, that such right 
to apply to the district court shall not exist until said party 
shall have complied with the provisions hereof, and shall 
have exhausted the administrative remedies provided for 
herein.



Orleans Parish School Board v. Bush, et al. 7

Following the enactment of these laws, appellees peti­
tioned the school board to take immediate steps to re­
organize the schools under its jurisdiction on a nondis- 
criminatory basis. No reply was made to this or to a 
subsequent petition, but the board engaged counsel to 
“defend, as special attorney for the Board, both in the 
trial court and in the Courts of Appeal” the action then 
pending.* 6 Soon thereafter appellees filed a first amended 
complaint setting up the provisions of the amended con­
stitution and the newly enacted statutes, a prayer for 
declaratory relief holding them invalid and renewing 
their prayer for preliminary and permanent injunction 
against the enforcement by the board of the provisions of 
the new laws.

The defendant board filed its motion to dismiss and 
the state of Louisiana prayed the right to intervene solely 
for the purpose of filing a motion to dismiss the suit as 
being one against the State. No order appears to have

“Each school board throughout the state shall have 
authority to adopt rules and regulations governing the hear­
ing and appeals provided for herein.

“Wherever reference is made to parish superintendent 
of schools or school boards the same shall apply to those 
in the cities of Monroe, Bogalusa and Lake Charles. Added 
Acts 1954, No. 556, §1.”

6 The resolution stated it to be the policy of the board to 
maintain its policy of segregation by the language in the 
following “Whereas” clauses:
“WHEREAS a class action has been instituted in the United 
States District Court for the Eastern District of Louisiana 
by Earl Benjamin Bush and others against the Orleans 
Parish School Board and its superintendent demanding a pre­
liminary and ultimately a permanent injunction against the 
segregation of the races in the public schools of New Or­
leans ;
“WHEREAS it is not only to the manifest interest of this 
Board and in accord with its expressed policy, but also in 
furtherance of the public welfare of this community that this 
suit and any others that might be instituted with the same 
objective be vigorously, aggressively, and capably defended;”



been entered allowing this intervention and the State is 
not appearing as a party on this appeal, although a brief 
has been tendered on behalf of the State as amicus curiae. 
Its petition for leave to file hereby granted and its brief 
has been considered by the Court.

NATURE OF THE SUIT

We consider first whether there is any merit in appel­
lant’s contention that this is in fact a suit brought by 
citizens of the State of Louisiana against the State. Of 
course such a suit is prohibited by the principle of sov­
ereign immunity and by analogy to the Eleventh Amend­
ment to the Constitution of the United States. Hans v. 
Louisiana, 134 U.S. 1.

It would seem hardly worth our considering this con­
tention in light of the fact that all of the School Segre­
gation Cases were actions of the same type as the one 
before us (suits against a state official or board operating 
under State authority) were it not for the fact that both 
the appellant and the Attorney General of the State urge 
it so strongly upon us. The burden of their argument 
is that this is a suit to compel state action, which under 
a long line of cases, including Great Northern Life In­
surance Company v. Reed, 322 U.S. 47, and Ford Motor 
Company v. Treasury Depo,rtment, 323 U.S. 459, falls 
within the prohibition whether nominally against the State 
or against state officials. But this suit does not seek to 
compel state action. It seeks to prevent action by state 
officials which they are taking because of the require­
ments of a state constitution and laws challenged by the

8 Orleans Parish School Board v. Bush, et al.



Orleans Parish School Board v. Bush, et al. 9

plaintiffs as being in violation of their rights under the 
Federal Constitution. If in fact the laws under which 
the board here purports to act are invalid, then the board 
is acting without authority from the State and the State 
is in nowise involved. That a federal court can entertain 
a suit where such a situation is alleged has long been 
recognized. In Ex parte Young, 209 U.S. 123, the Supreme 
Court said in such a case as this:

“ . . . .  It is contended that the complainants 
do not complain and they care nothing about any 
action which Mr. Young might take or bring as 
an ordinary individual, but that he was com­
plained of as an officer, to whose discretion is 
confided the use of the name of the State of Min­
nesota so far as litigation is concerned, and that 
when or how he shall use it is a matter resting 
in his discretion and cannot be controlled by any 
court.

“The answer to all this is the same as made in 
every case where an official claims to be acting 
under the authority of the State. The act to be 
enforced is alleged to be unconstitutional, and if 
it be so, the use of the name of the State to en­
force an unconstitutional act to the injury of 
complainants is a proceeding without the author­
ity of and one which does not affect the State 
in its sovereign or governmental capacity. It is 
simply an illegal act upon the part of a State 
official in attempting by the use of the name of 
the State to enforce a legislative enactment which 
is void because unconstitutional. If the act which 
the state Attorney General seeks to enforce be 
a violation of the Fereral Constitution, the officer 
in proceeding under such enactment comes into



10 Orleans Parish School Board v. Bush, et al.

conflict with the superior authority of that Con­
stitution, and he is in that case stripped of his of­
ficial or representative character and is sub­
jected in his person to the consequences of his 
individual conduct. The State has no power to 
impart to him any immunity from responsibility 
to the supreme authority of the United States.”

Central of Georgia Railroad v. Redwine, 342 U.S. 299, 
relied on by the trial court, is the most recent pronounce­
ment of the Supreme Court to the same effect. See also 
School Board of the City of Charlottesville v. Allen (4 
Cir.), . . .  .F. 2d . . . .  (dec. Dec. 31, 1956), where the Court 
of Appeals for the Fourth Circuit held a suit such as this 
not to be one against the State of Virginia.

There is no merit in the claim of appellant that the 
court was without jurisdiction to try this case as being a 
suit against the state. The substance of this suit is that 
the school board is unconstitutionally forcing them to 
attend schools that are segregated according to race 
and their prayer is that the board be enjoined from con­
tinuing to do so. If plaintiffs are right in their conten­
tion, then they can obtain complete relief from this de­
fendant, because any sanctions compelling it to continue 
its illegal conduct falls when the Court determines that 
such sanctions are illegal.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

The second ground of appellant’s motion to dismiss 
was its contention that the complaint fails to state a claim 
on which relief can be granted. The first basis for this



Orleans Parish School Board v. Bush, et al. 11

attack is that, assuming all the allegations as to uncon­
stitutional acts by the defendant to be true, the plaintiffs 
have not pursued their administrative remedies for re­
lief before filing of their suit. In asserting this conten­
tion appellant seems to overlook completely the fact that 
when this suit was filed there was no pupil assignment 
law on the statute books. So far as has been called to 
our attention the plaintiffs did all they were required 
to do administratively in 1951 to seek relief from the con­
dition of which they were complaining, i.e. inequality 
and discrimination between the facilities of white and 
colored schools and the discrimination resulting per se 
from the operation of a segregated school system. They 
applied to the defendant for relief and appealed its ad­
verse decision to the state board which remanded them 
to the local board. Where else they could go adminis­
tratively is nowhere suggested by appellant, which argues 
the entire matter as though there had then been a pupil 
assignment statute on the books.

But assuming that the trial court and we should view 
this question in the light of conditions after the passage 
of the 1954 acts, which, however, we do not decide, there 
is still no merit in appellant’s argument. /Appellees were 
not seeking specific assignment to particular schools. 
They, as Negro students, were seeking an end to a local 
school board rule that required segregation of all Negro 
students from all white students. As patrons of the 
Orleans Parish school system they are undoubtedly en­
titled to have the district court pass on their right to 
seek relief. Jackson v. Rawdon (5 Cir.), 235 F. 2d 93, 
cert, den., 352 U.S. 925, and see School Board of the City 
of Charlottesville v. Allen, supra.

\



12 Orleans Parish School Board v. Bush, et al.

Moreover, so long as assignments could be made under 
the Louisiana constitution and statutes only on a basis 
of separate schools for white and colored children to re­
mit each of these minor plaintiffs and thousands of others 
similarly situated to thousands of administrative hearings 
before the board for relief that they contend the Supreme 
Court has held them entitled to, would, as the trial judge 
said, “be a vain and useless gesture, unworthy of a court 
of equity, . . .  a travesty in which this court will not 
participate.” See Adkins v. Newport News School Board, 
(D.C.E.D.Va.), decided 1/11/57, 25 L.W. 2317. /

PROOF OF ACTUAL OR IMMEDIATE IRREPARABLE
INJURY

A further basis for appellant’s claim that the suit should 
be dismissed was that there was no showing of actual or 
immediate irreparable injury. It may well be argued to 
the contrary that, assuming that plaintiffs are being denied 
their constitutional right to equality with members of 
the white race in their educational opportunities, every 
day that passes counts as an irremediable loss to the school 
child thus discriminated against. The simplest answer to 
this contention, however, is in the limited action of the 
court, which was well within what was prayed for by 
appellees. It declared the rights of the parties as they 
prayed and restrained the board from “requiring and per­
mitting segregation of the races in any school under their 
supervision, from and after such time as may be necessary 
to make arrangements for admission of children to such 
schools on a racially nondiscriminatory basis with all 
deliberate speed as required by the decision of the Su­



Orleans Parish School Board v. Bush, et al. 13

preme Court in Brown v. Board of Education of Topeka,
supra.”

Such an order, while in the form of a preliminary in­
junction, contained no immediately compulsive features 
so far as relieving the plaintiffs of day by day injury 
was concerned. Inasmuch as they do not complain of 
the failure of the court to afford them immediate relief 
it seems to us that there is little ground for the board 
to do so on this particular ground.

CONSTITUTIONALITY OF LOUISIANA 
CONSTITUTION AND LAWS

We have heretofore dealt with contentions advanced 
by appellant which it says entitle it to a dismissal of the 
action whether or not the plaintiffs are being denied their 
constitutional rights. We now come to the question 
whether under the statutes of Louisiana enacted pursuant 
to the amendment to that State’s constitution the legal 
position of the parties here differs from that which the 
litigants occupied in the School Segregation case, supra. 
Obviously if nothing new or different has been added the 
plaintiffs are entitled to a declaratory judgment declar­
ing their right “ to have the school board, acting promptly, 
and completely uninfluenced by private and public opinion 
as to the desirability of desegregation in the community, 
proceed with deliberate speed consistent with admin­
istration” to abolish segregation in the Orleans parish 
school system. (Jackson v. Rawdon, supra, at 235 F. 2d 96).

The new circumstance to which appellant points is 
the amendment to the Louisiana constitution which, in



14 Orleans Parish School Board v. Bush, et al.

effect, provides that there shall continue to be racially 
separate schools, which separation is stated for the first 
time to be “in the exercise of the state police power to 
promote and protect public health, morals, better educa­
tion and the peace and good order in the State, and not 
because of race.” There is also the new pupil assignment 
law which we have already discussed.

Appellant nowhere in its brief undertakes to explain 
the process of reasoning by which it seeks to have this 
Court conclude that racial segregation in the schools is 
any less segregation “because of race” merely because 
the stated basis of adhering to the policy is in the exer­
cise of the State’s police power. Nor does the brief filed 
by the Attorney General of Louisiana discuss the issue. 
However, the affidavits introduced on the hearing for 
preliminary injunction make clear what the briefs do not. 
They deal with the alleged disparity between the two 
races as to intelligence ratings, school progress, incidence 
of certain diseases, and percentage of illegitimate births, 
in all of which statistical studies one race shows up to 
poor advantage. This represents an effort to justify a 
classification of students by race on the grounds that one 
race possesses a higher percentage of undesirable traits, 
attributes or conditions. Strangely enough there seems 
never to have been any effort to classify the students of 
the Orleans Parish according to the degree to which they 
possess these traits. That is, there seems to have been 
no attempt to deny schooling to, or to segregate from 
other children, those of illegitimate birth or having so­
cial diseases or having below average intelligence quo­
tients or learning ability because of those particular facts.



Orleans Parish School Board v. Bush, et al. 15

Whereas any reasonable classification of students accord­
ing to their proficiency or health traits might well be 
considered legitimate within the normal constitutional 
requirements of equal protection of the laws it is unthink­
able that an arbitrary classification by race because of 
a more frequent identification of one race than another 
with certain undesirable qualities would be such reason­
able classification.

The use of the term police power works no magic in 
itself. Undeniably the States retain an extremely broad 
police power. This power, however, as everyone knows, 
is itself limited by the protective shield of the Federal 
Constitution. Thus, for instance, municipal zoning laws 
passed to require racially segregated residential zoning 
have been struck down under the Fourteenth Amendment. 
In Buchanan v. Warley, 245 U.S. 60, the Supreme Court 
said at page 74:

“ The authority of the State to pass laws in the 
exercise of the police power, having for their ob­
ject the promotion of the public health, safety 
and welfare is very broad as has been affirmed 
in numerous and recent decisions of this court. 
Furthermore, the exercise of this power, embrac­
ing nearly all legislation of a local character, is 
not to be interfered with by the courts where it 
is within the scope of legislative authority and 
the means adopted reasonably tend to accomplish 
a lawful purpose. But it is equally well estab­
lished that the police power, broad as it is, can­
not justify the passage of a law or ordinance 
which runs counter to the limitations of the 
Federal Constitution; that principle has been



16 Orleans Parish School Board v. Bush, et al.

so frequently affirmed in this court that we need 
not stop to cite the cases.”

To the same effect see the Georgia case of Carey v. City 
of Atlanta, 143 Ga. 192.

Probably the most clear cut answer to this effort by 
the State of Louisiana to continue the pattern of segre­
gated schools in spite of the clear and unequivocal pro­
nouncement of the Supreme Court in the School Seg­
regation cases7 is that this is precisely what was express­
ly forbidden by those decisions. Whatever may have 
been thought heretofore as to the reasonableness of classi­
fying public school pupils by race for the purpose of re­
quiring attendance at separate schools, it is now per­
fectly clear that such classification is no longer permis­
sible, whether such classification is sought to be made 
from sentiment, tradition, caprice, or in exercise of the 
State’s police power.

From what we have said the conclusion is obvious that 
the state constitutional provisions as to maintaining sep­
7 “We conclude that in the field of public education the 

doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. Therefore, we 
hold that the plaintiffs and others similarly situated for 
whom the actions have been brought are, by reason of the 
segregation complained of, deprived of the equal protection 
of the laws guaranteed by the Fourteenth Amendment. This 
disposition makes unnecessary any discussion whether such 
segregation also violates the Due Process Clause of the 
Fourteenth Amendment.”
Brown v. Board of Education, 347 U.S. 483, at 495.
“These cases were decided on May 17, 1954. The opinion of 
that date, declaring the fundamental principle that racial 
discrimination in public education is unconstitutional, are in­
corporated herein by reference. All provisions of federal, 
state, or local law requiring or permitting such discrimina­
tion must yield to this principle. There remains for con­
sideration the manner in which relief is to be accorded.” 
Brown v. Board of Education, 349 U.S. 294, at 298.



arate schools for white and colored children is in direct 
conflict with the equal protection clause of the Four­
teenth Amendment and is void and of no effect. The 
same is true of the statute designed to implement this 
constitutional requirement, Act 555, of 1954.

We next come to the Pupil Assignment Law. Although 
we have already expressed the view that this statute 
did not have the effect of preventing the commence­
ment and maintenance of this action, the role it might 
have in the future disposition of the case by the trial 
court makes it appropriate for us to answer appellant’s 
contention that that court erred in holding it invalid.

Whatever might be the holding as to the validity of 
an administrative pupil assignment statute containing 
reasonably certain or ascertainable standards to guide 
the official conduct of the superintendent of the local 
school board and to afford the basis for an effective ap­
peal from arbitrary action, Act 556 is not such a statute. 
The plaintiffs, seeking to assert their right to attend 
non-segregated schools as guaranteed them under the Con­
stitution, would be remitted to an administrative official 
guided by no defined standards in the exercise of his 
discretion.8 In such circumstances no number of hear­
ings or appeals would avail them anything because it 
would be impossible for them to bring forward any proof 
bearing on whether they possessed those attributes, quali­
fications, or characteristics that would bring them with­
in the group of students permitted to attend the partic­
8 Cf. Carsen v. Warlick (4 Cir.), . . . .  F. 2d 25 U.S.L.W.

2252 (Nov. 14, 1956); the North Carolina Pupil Enrollment 
Act there involved was held by the court to contain ade­
quate standards.

Orleans Parish School Board v. Bush, et al. 17



18 Orleans Parish School Board v. Bush, et al.

ular school or schools. Attempts by statute to give any 
official the power to assign students to schools arbitrarily 
according to whim or caprice are legally impermissible, 
especially if considered in light of the history of assign­
ments made in a manner that has now been held to be 
unconstitutional and of the recently readopted require­
ment of the state constitution reaffirming such uncon­
stitutional standards, which is reinforced by the heavy 
sanctions against any official permitting a departure there­
from contained in a companion statute. Such a statute 
is unconstitutional either because it has on its face the 
effect of depriving appellees of their liberty or property 
without due process of law or as having implied as its 
only basis for assignments the prohibited standard of 
race. See Yick Wo v. Hopkins, 118 U.S. 356, and Davis 
v. Schnell (S.D. Ala., 3 judge court), 81 F. Supp. 872, 
aff’d, 336 U.S. 933. Thus we need not determine whether 
the enactment of this law contemporaneously with Act 
555 and closely following the readoption of the racially 
separate schools provision of the state constitution, under 
circumstances that make it plain to all that the Assign­
ment Act too was a further effort to stave off the effect 
of the Supreme Court’s school decision, is sufficient of 
itself to condemn it as part of the illegal legislative plan 
comprehended in Act 555, although this is precisely the 
type of determination on which the three judge court in 
Davis v. Schnell, supra, based its decision striking down 
an amendment to the Alabama constitution.9 Nor is it 
necessary for us to pass on the possible validity of a 
statute that would merely grant to school officials the
9 See also Adkins v. Newport News School Board (E.D.Va.), 

25 U.S.L.W. 2316 (Jan. 11, 1957).



Orleans Parish School Board v. Bush, et al. 19

power to promulgate rules of attendance, zoning of school 
population, transfers and the like, so long as all such rules 
are applied in a manner as to affect all pupils without 
regard to their race, and are not used as a mere screen 
to perpetuate compulsorily segregated schools contrary 
to the court’s order.10

There remains the complant of the appellant that this 
is not truly a class action. What we have heretofore 
said with respect to the nature of the relief sought makes 
it clear that there is no merit in this contention. Here 
is a well-defined class whose rights are sought to be 
vindicated. We think that our decisions in Lucy v. Adams 
(5 Cir.), 228 F. 2d 619, cert. den. 351 U.S. 931, and Board 
of Supervisors o/ L.S.TJ. v. Tureaud (5 Cir.), 225 F. 2d 
434 (aff’d en banc) 228 F. 2d 895, cert. den. 351 U.S. 924, 
by clearest implication reject appellant’s contention that 
in such a situation the named plaintiffs may not bring a 
class action on behalf of themselves and all others similar­
ly situated. See also Carter v. School Board of Arlington 
County, Va. (4 Cir.), 182 F. 2d 531, and Frazier v. Board 
of Trustees of the University of North Carolina, 134 F. 
Supp. 589, aff’d per curiam 350 U.S. 979.

Moreover, it is worthy of note that the series of cases 
generally known as the School Segregation cases11 them­
selves were all class actions in the same sense as is the 
one before us.

In sum, therefore, we find no basis for the appellant’s 
attack on the order entered by the trial court. The able
10 s ee city of Charlottesville v. Allen, supra, and Carsen v.

Warlick, supra.
11 Brown v. Board of Education of Topeka, Kansas, supra.



20 Orleans Parish School Board v. Bush, et al.

and experienced trial judge gave full recognition to the 
administrative difficulties attendant upon changing the 
schools of the Parish of Orleans, including as it does, 
the schools of the City of New Orleans, from the estab­
lished pattern of segregation on account of race. A l­
though requiring immediate acceptance of the principle 
of non-segregated schools he allowed the Board time to put 
it into effect. Clearly implying that arrangements should 
be started at once, he nevertheless fixed the date after 
which there were to be no further distinction based on 
race at “such time as may be necessary to make arrange­
ments for admission of children to such schools on a ra­
cially non-discriminatory basis with all deliberate speed 
as required by the decision of the Supreme Court in 
Brown v. Board of Education.”

It is evident from the tone and content of the trial 
court’s order and the willing acquiescence in the delay 
by the aggrieved pupils that a good faith acceptance by 
the school board of the underlying principle of equality 
of education for all children with no classification by race 
might well warrant the allowance by the trial court of 
time for such reasonable steps in the process of deseg­
regation as appears to be helpful in avoiding unseemly 
confusion and turmoil. Nevertheless whether there is 
such acceptance by the Board or not, the duty of the 
court is plain. The vindication of rights guaranteed by 
the Constitution can not be conditioned upon the absence 
of practical difficulties. However undesirable it may be 
for courts to invoke Federal power to stay action under 
state authority, it was precisely to require such inter­
position that the Fourteenth Amendment was adopted by



Orleans Parish School Board v. Bush, et al. 21

the people of the United States. Its adoption implies that 
there are matters of fundamental justice that the citizens 
of the United States consider so essentially an ingredient 
of human rights as to require a restraint on action on 
behalf of any state that appears to ignore them.

The orders of the trial court are
AFFIRMED.

A True Copy: 
Teste:

Clerk of the United States Court of 
Appeals for the Fifth Circuit.



*

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