Bossier Parish School Board v. Lemon Brief for Appellees
Public Court Documents
August 1, 1965

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Brief Collection, LDF Court Filings. Bossier Parish School Board v. Lemon Brief for Appellees, 1965. ce4cc928-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7bed77e5-ef87-4d14-8ca9-0d0f16692861/bossier-parish-school-board-v-lemon-brief-for-appellees. Accessed July 16, 2025.
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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 o£S||lp|si 38