Bossier Parish School Board v. Lemon Brief for Appellees

    I s r  t h e

(E m tri n f  Kppmlz
F or the F ieth Circuit

No. 22,675

B ossier P arish School B oard, et al.,

Defendants-Appellants,

versus

Ura B ernard L emon, et al.,

Plaintiffs-Appellees.

appeal erom the united states district court for the

WESTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

J esse N. Stone, J r.
854i/2 Texas 
Shreveport, Louisiana

J ack Greenberg 
Norman C. Amaker 
S heila Rush

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees



I N D E X

PAGE

Statement of the Case ............ .....................................  1

A rgument :

The District Court Properly Found That Plain­
tiffs Have Standing to Bring This Suit to Desegre­
gate the Public Schools in Bossier Parish .............. 4
A. The Contract Between the School Board and

the Government Created an Identity of Eight 
Between Federal Children and Resident Chil­
dren .......................... -............ ...........................  4

B. Plaintiffs Are Entitled to a Desegregated Edu­
cation Under the Fourteenth Amendment and 
Under Title VI of the Civil Eights Act of 1964 6

C. Negro Children Attending Segregated Public
Schools Have a Constitutional Eight to a De­
segregated Education Independent of the Con­
tract and Statute..................................-.............  7

Conclusion..................... -..........................................................  8

Table op Cases

Brunson v. Board of Trustees of Clarendon County, 311
F. 2d 107 (4th Cir. 1962) ........................................... 8

Brown v. Board of Education, 347 U. S. 483 (1954) .... 6
Burke v. Southern Pacific Railroad Co., 234 U. S. 669

(1914) ................. .......-.......- ............................... -...... 4
Bush v. Orleans Parish School Board, 308 F. 2d 491,

499 (5th Cir. 1962) 8



11

PAGE

Flagler Hospital, Inc. v. Hayling, 344 F. 2d 950 (5th 
Cir. 1965) .......................... ................................... . 6

Northern Pacific Railroad Co. v. United States, 356 
U. S. 1 (1958) ........................................ ...... ..............  4

Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) .............. 8

Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 
959 (4th Cir. 1963), cert, denied 376 U. S. 938 (1964) 6

Smith v. Holiday Inns of America, Inc., 336 F. 2d 630 
(6th Cir. 1964) ............................................................. 6

U. S. v. Bossier Parish School Board, 220 F. Supp. 243 
(W. D. La. 1963) aff’d per curiam 336 F. 2d 197
(5th Cir. 1964) ...........................................................  5

U. S. v. County School Board of Prince George County,
Va., 221 F. Supp. 93 (E. D. Va. 1963) ..................... 4, 5

U. S. v. Madison County Board of Education, 326 F. 2d
237 (5th Cir. 1964) .....................................................  5

U. S. v. Sumter County School District No. 2, 232 F. 
Supp. 945 (E. D. S. C. 1964).......................................  5

Statutes I nvolved

Civil Rights Act of 1964, 78 Stat. 241, §§601, 602 ....2, 3, 6, 7 
20 U. S. C. A. §§631-645 .................................................. 2



1st the

llnxUb Stater* (Enter! of Appeals
F ob the F ifth  Circuit 

No. 22,675

B ossier P arish School B oard, et al.,
Defendants-Appellants,

versus

U ra Bernard Lemon, et al.,
Plaintiffs-Appellees.

appeal from the united states district court for the

WESTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

Statement of the Case

Appellants (defendants below), The Bossier Parish 
School Board and its superintendent, Emmett Cope, appeal 
an order granting an injunction against continued opera­
tion of a racially segregated school system and requiring 
submission of a desegregation plan in accordance with the 
requirements of the decisions of this court (R. 6, 113-115, 
125, 126). The sole ground of their appeal is lack of stand­
ing of appellees (plaintiffs below) to sue.

Appellees are Negro citizens of the United States who 
are military personnel stationed at the time of suit at 
Barksdale Air Force Base, Bossier Parish, Louisiana.



2

They sued on behalf of their minor children to enjoin the 
School Board from operating racially segregated schools in 
Bossier Parish, Louisiana (R. 1-3). Upon attempting on 
or about August 31,1964 to enroll in “white” Bossier Parish 
schools closer to their homes than “Negro” schools, plain­
tiffs were required by the principals of the “white” schools 
to obtain transfer applications from the “Negro” schools (R. 
5, 6). On September 29, 1964, plaintiffs’ requests for trans­
fer were denied.

Plaintiffs and the United States plaintiff-intervenor, 
moved for summary judgment, relying particularly upon 
the applications for federal assistance filed by the School 
Board with the United States Office of Education and the 
affidavit of the Assistant Commissioner and Director of 
the Division of School Assistance in Federally Affected 
Areas which showed that since 1951 defendants had received 
more than $1,860,000 from the United States for school 
construction under 20 U. S. C. A. §§631-645 (R. 62, 69-91).

The School Board’s applications for construction funds 
all contained substantially the following assurance set forth 
in the 1962 application:

The Applicant’s school facilities will be available to 
the children for whose education contributions are 
provided in Public Law 815, as amended, on the same 
terms, in accordance with the laws of the state in which 
Applicant is situated, as they are available to other 
children in Applicant’s school district (R. 81).

Despite defendant’s affidavit that no federal money had 
been received for construction since the passage of the 1964 
Civil Rights Act (R. 96), the court determined that since



3

the School Board had accepted without reservation $446,338 
on November 9, 1964 and $157,302 on November 13, 1964 
for the operation and maintenance of its schools (R. 108), 
the acceptance of federal money constituted a ratification 
of the earlier contract, estopping defendants from denying 
plaintiffs the same rights to school attendance as resident 
children (R. 107, 108). Federal children were thus in the 
same position as resident children and “entitled to bring 
this suit on behalf of the class consisting of all Negro chil­
dren eligible to attend Bossier Parish schools, whether be­
cause of residence or contract” (R. 107).

The court also found that as a result of the passage of 
the Civil Rights Act of 1964, defendants’ acceptance of 
funds in 1964 obligated them to provide education to fed­
eral children without racial discrimination. Plaintiffs, at­
tending schools operated and maintained by these funds, 
thus had standing under §601 to maintain the desegregation 
action (R. 109, 110).

Defendants’ specifications of error, restated, challenge 
the following two district court findings:

(1) That there was an enforceable contract giving the 
federal children the same rights to school attendance 
as resident children;

(2) That plaintiffs have standing to sue under §601 of 
Title VI of the Civil Rights Act of 1964.



4

A R G U M E N T
The District Court Properly Found That Plaintiffs 

Have Standing to Bring This Suit to Desegregate the 
Public Schools in Bossier Parish.

A. T he Contract Betw een the School B o a rd  and the 
G overnm ent Created an Identity o f R ight Between  
Federal C hildren and R esident C hild ren .

It is beyond question that the Bossier Parish School 
Board’s assurance that its facilities would be available to 
federal children on the same basis as resident children 
gave federal children the same right of school attendance. 
These assurances, given in exchange for the receipt of 
federal money, effectively eliminated any distinction be­
tween the two groups and gave the federal children what 
the trial court described as “rights . . . identical in weight 
and effect” (R. 106).

It is, therefore, inapposite for defendants to argue: 
(1) that as non-residents, federal children have no right 
to attend state schools, and (2) that Bossier Parish is 
under no obligation to educate federal children. It has 
long been recognized that federal grants authorized by 
Congress for a specific purpose create binding contracts. 
Burke v. Southern Pacific Railroad Co., 234 U. S. 669 
(1914); Northern Pacific R. Co. v. United States, 356 U. S. 1 
(1958). Recently, and under facts strikingly similar to 
those here, this rule was reaffirmed. In U. S. v. County 
School Board of Prince George County, Va., 221 P. Supp. 
93 (E. D. Va. 1963), where defendants contended, as the 
School Board does here, that an assurance making school 
facilities available to federal children on the same basis



5

as local children did not create a contractual obligation, 
the court found an enforceable contract. Similarly, in U. S. 
v. Sumter County School District No. 2, 232 F. Supp. 945, 
950 (E. 13. S. C. 1964), the court upheld the federal chil­
dren’s contractual right to an education, holding that the 
federal grants given in exchange for the assurance of the 
School Board “create binding contracts.”

In support of their contention that no enforceable con­
tract was created, defendants rely heavily upon U. S. v. 
Madison County Board of Education, 326 F. 2d 237 (5th 
Cir. 1964). As the trial court pointed out, however, that 
case did not hold that no enforceable contract was created, 
but determined, rather, that under the contract the Attor­
ney General was not authorized to sue to desegregate the 
schools. In the instant case, plaintiffs do not base their 
right to a desegregated education on the contract; they 
rely on the contract solely for the right to attend Bossier 
Parish schools.1

1 The trial court specifically found that the contractual assur­
ances did not give plaintiffs the right to a desegregated education 
(R. 105). See U. 8. v. Bossier Parish School Board, 220 F. Supp. 
243 (W. D. La. 1963) aff’d per curiam 336 F. 2d 197 (5th Cir. 
1964), and U. S. v. Madison County Board of Education, supra. 
In TJ. S. v. County School Board of Prince George County, Va., 
supra, however, the court not only recognized the existence of a 
contract but also found that the rights of federal children were 
determined by the law of the state, including modifications in the 
state segregation law caused by United States Supreme Court 
decisions. Cf. TJ. S. v. Sumter County School District No. 2, supra.



6

B. P laintiffs Are Entitled to a D esegregated Education  
U nder the Fourteenth Am endm ent and Under Title  
VI o f the Civil R ights Act o f 1964 .

Nowhere in their brief do defendants dispute the pro­
hibitions of the Fourteenth Amendment as enunciated in 
Brown v. Board of Education, 347 U. S. 483 (1954). More­
over, the School Board does not contest the lower court’s 
conclusion that once the identity of right between federal 
children and resident children is established, plaintiffs are 
entitled to the equal protection of the laws granted by the 
Fourteenth Amendment and can sue on behalf of all Negro 
children to desegregate the public schools.

What defendants dispute is the lower court’s finding 
that §601 of Title VI of the Civil Rights Act of 19642 
provides plaintiffs with an alternative basis for relief. 
Specifically, defendants contend that the administrative 
provisions set forth in the Title create an exclusive rem­
edy and bar private civil actions.

The district court’s determination that standing to de­
segregate the public schools of Bossier Parish could be 
premised on §601 of Title VI is wholly consistent with the 
line of cases affording individual relief against institu­
tions receiving federal funds. Simkins v. Moses H. Cone 
Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, 
denied 376 U. S. 938; cf. Flagler Hospital, Inc. v. Ilayling, 
344 F. 2d 950 (5th Cir. 1965); Smith v. Holiday Inns of 
America, Inc., 336 F. 2d 630 (6th Cir. 1964).

2 Section 601 of the Civil Rights Act of 1964 states:
No person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination 
under any program or activity receiving Federal financial 
assistance.



7

Nothing in the statute or the legislative history suggests 
that an exclusive, remedy was intended. Section 602 which 
sets forth the administrative remedy, in addition, au­
thorizes the effectuation of §601 “by any other means au­
thorized by law.” This is hardly language describing an 
exclusive administrative remedy. It is more aptly a refer­
ence to the variety of actions brought by private parties to 
enforce constitutional rights. Moreover, it is highly un­
likely that Congress intended Title VI to limit the unfold­
ing of a private right to sue to desegregate institutions 
receiving federal funds to judicial development. It is much 
more reasonable to conclude, as did the district court, that 
private rights were extended under Title VI.

This is even more likely when we consider that the exist­
ence of a Title VI administrative remedy is not inconsistent 
with the creation of private rights. Plaintiffs are not at­
tempting to cut off federal funds going to Bossier Parish 
schools as the government would in an administrative pro­
ceeding to enforce a school district’s obligation under Title 
VI. Plaintiffs, rather, are suing to require desegregation 
where federal funds have been accepted, drawing upon the 
obligation set forth in §601 as the source of their right to 
enforce their right to a desegregated education.

C. Negro Children Attending Segregated P ublic Schools 
Have a C onstitutional R ight to a Desegregated Educa­
tion  Independent o f  the Contract and Statute.

It is clear from decisions of this Court that standing re­
quirements for class relief against system-wide segrega­
tion differ from those where individual rights are being 
vindicated. Where the suit aims at the desegregation of 
a school system, any member of the class to be benefited



8

has standing to sue. Potts v. Flax, 313 F. 2d 284 (5th Cir. 
1963). Cf. Brunson v. Board of Trustees of Clarendon 
County, 311 F. 2d 107 (4th Cir. 1962). This distinction was 
carefully drawn in Bush v. Orleans Parish School Board, 
308 F. 2d 491, 499 (5th Cir. 1962), a school desegregation 
case where the court held that “Negro children in the public 
schools have a constitutional right to have a public school 
system administered free from . . . segregation.” The 
court found this right belonged to the class “irrespective of 
any individual’s right to be admitted on a non-raeial basis 
to a particular school.”

CONCLUSION

W herefore, plaintiffs respectfully submit tha t the order 
of the d istrict court be affirmed.

Eespectfully submitted,

J esse N. Stone, J r.
854% Texas 
Shreveport, Louisiana

J ack Greenberg 
Norman C. A maker 
Sheila R ush

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees



9

CERTIFICATE OF SERVICE

This is to certify that I have served copies of the fore­
going Brief for Appellees upon Jack P. F. Gremillion, 
Attorney General, State of Louisiana, William P. Schuler, 
Assistant Attorney General, Louis H. Padgett, Jr., Dis­
trict Attorney, Bossier Parish, Louisiana, J. Bennett John- 
ston, Jr., 930 Giddens-Lane Building, Shreveport, Louisi­
ana, attorneys for appellants, and St. John Barrett, De­
partment of Justice, Washington, D. C., by mailing copies 
to them at the above addresses, air mail, postage prepaid.

This day of August, 1965.

Attorneys for Appellees



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