Motion for Order Vacating Stay of Injunction and Reinstating Injunction

    IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

EARL BENJAMIN BUSH, ET AL. 

Ve. 

ORLEANS PARISH SCHOOL BOARD, ET AL. 

TO The Honorable Elbert P. Tuttle, Chief Judge, United States 

Court of Appeals for the Fifth Circuit 

MOTION FOR ORDER VACATING STAY OF INJUNCTION AND 

REINSTATING INJUNCTION, OR IN THE ALTERNATIVE, 

FOR AN ORDER MODIFYING THE STAY OF INJUNCTION BY 

IMPOSING TERMS AND CONDITIONS NECESSARY FOR THE 

SECURITY OF PLAINTIFFS' RIGHTS 

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

attorneys, respectfully move for an order vacating 
the order 

entered in this case by the United States District 
Court for 

the Eastern District of Louisiana (by Hon. Frank B. Ellis, 

District Judge) on May 1, 1961, which granted a stay of the 

preliminary injunction entered in that Court on April 9, 1962 

(by Hon. J. Skelley Wright, District Judge), and reinstating 

the preliminary injunction of April 9, 1962, In the alterna- 

tive, plaintiffs move for an order modifying the stay of 

injunction by imposing terms and conditions neces
sary for the 

security of plaintiffs' rights, i.e., that the stay order be 

amended to expressly provide that the defendants 
must take 

all actions necessary in preparation for obedience to the 

injunction of April 9, 1962, at jts effective date which is 

the opening of the school term in September 1962, in order that 

the defendants will be able to obey said inju
nction if it is 

in effect at that time, or that the Court impose such other 



terms and conditions as it may deem proper. As grounds for 

said motion, plaintiffs submit the following: 

1. This school segregation case has been before the 

courts through prolonged and complicated litigation. Earlier 

opinions in this case are reported as indicated in footnote 

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

attached). The present proceedings result from motions filed 

by the plaintiffs and intervenors, Negro school children in 

New Orleans, seeking injunctive relief upon assertions that the 

defendant Orleans Parish School Board has failed to comply with 

prior orders of the trial court with respect to desegregation 

of the public schools. On March 5, 1962, the District Court 

held a hearing at which it received oral testimony and docu- 

mentary evidence submitted by all parties. After considering 

the evidence and briefs filed by the parties, the District 

Court on April 3, 1962, filed an opinion containing detailed 

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

this opinion is appended hereto as Exhibit No. 1. Zhereafter, 

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

in accordance with the opinion of April 3, 1962. This injunc- 

tion modified an earlier injunction entered May 16, 1960. A 

copy of the order of April 9, 1962, is attached hereto as 

Exhibit No. 2. 

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

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

a plan of desegregation for the Orleans Parish schoolsas ordered 

by the District Court on July 15, 1959, and did not contemplate 

submitting a desegregation plan; that the school board continues 

to maintain a dual system of segregated schools based on race, 

this being accomplished by dividing the City into separate Negro 

and white school attendance districts; that since September 

1960, the defendant has not complied with the Court's desegrega- 

tion order of May 16, 1960, which provided that all first grade 



children might "at their option" attend either the "formerly 

all white public schools nearest their homes 
or the formerly 

all negro schools nearest their homes": that instead of comply- 

ing with the court's order, the board had pursued a special 

testing and screening program for first grade 
Negro pupils 

seeking to attend schools other than the ones to
 which they 

were assigned under the segregated system; and that under this 

pupil assignment program only four Negro 
first grade children 

out of 134 applicants were allowed to transfe
r to white schools 

nearest their homes during the 1960-61 term, 
and eight Negro 

children of 66 applicants were allowed to tra
nsfer during the 

1961-62 term. The Court concluded that the procedures follo
wed 

by the defendant in assigning pupils for the 1960-61 and 1961-
 

62 school terms was not in compliance with 
the order of the 

Court and further said that: 

To assign children to a segregated school system and 

then require them to pass muster under a pupil place- 

ment law is discrimination in its rawest form. 

The court also found that there was substantial 

inequality in the school facilities maint
ained for white and 

Negro children by the defendants, particularly
 with regard to 

cevere overcrowding in the Negro schools, "platooning” (less 

than full-time sessions) of Negro children, and the use of 

school building areas not planned for class
room use in the Negro 

schools. The Court said that: 

Even under the separate but equal test, the
se 

inequalities may not be maintained. It would 

be unconscionable to compel Negroes, 67 years 

after Plegssy v. Ferguson, supra, to continue to 

submit to these conditions. 

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

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

set aside the order of April 9, 1962. This motion was originally 

noticed for hearing on May 2, 1962: hearing is now scheduled to 

be held May 8, 1962. A copy of the motion for new trial is 

attached hereto as Exhibit No. 3. After filing the Motion For 

v3 



New Trial, counsel for the defendant notified plaintiffs’ 

counsel on April 23, 1962, of the Board's intention to appear 

before the Hon. Frank B, Ellis, District Judge, on the after- 

noon of April 24, 1962, to present a Motion For a Stay of the 

order of April 9, 1962, pending disposition of the Motion For 

New Trial. On April 24, the Motion For a Stay was filed and 

counsel for all parties appeared before the court in chambers. 

A copy of the Motion For a Stay is attached hereto as Exhibit 

No. 4. The Court took the motion under advisement pending sub~- 

mission of memoranda and, on May 1, 1962, entered an order 

granting the stay as requested by the defendant board. The 

stay order provided: 

This cause came on for hearing "in camera" with 

counsel for both parties present on a former day on 

defendants' motion to stay the temporary injunction 

of April 9, 1962, pending disposition of their 

motion for a new trial. 

The court, having considered the briefs and 

argument of counsel is ready to rule. 

It is ordered that the defendants' motion to 

stay the temporary injunction of April 9, 1962, 

pending disposition of a motion for a new trial 

be, and the same is hereby granted, on the condi~- 

tion that this stay shall of no way affect the 

order of May 16, 1960, 

Pending the hearing and study of a motion for 

a new trial on matters which this court as consti-
 

tuted is considering for the first time, a stay of 

the temporary injunction is deemed appropriate. 

F.R.C.P. 62(b). This stay in no way reflects the 

ultimate disposition of the motion for a new 

trial. 

4. The grounds upon which the defendant sought and 

obtained a stay of the preliminary injunction were that du
ring 

the pendency of the motion for a new trial and the antici- 

pated time which might elapse before the motion for ne
w trial 

is determined, and the additional time which might elapse if 

the motion is granted before the final decision on the me
rits 

of the action, the defendant would be jrreparably harmed since 

during this period the defendant must prepare for the reg
is- 

tration, assignment and transfer of students for 
the September 

ll - 



1962 school term. Defendants asserted that they would not 

have sufficient time to properly prepare for the opening of 

school in September 1962, using their prior pupil assignment 

procedures, unless the stay is granted. The defendants' asser- 

tions in this regard are made in their memorandum in support 

of the motion for a stay, relevant portions of which are 

quoted in the margin below, 

The defendants' own asserted justification for the stay 

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

to properly prepare for the assignment of students for September 

1962) demonstrates that the present stay order is actually a 

determination that the preliminary injunction will not be effec- 

tive as of September 1962 in accordance with its terms. Thus 

the stay order amounts to a modification of the injunction by 

relieving defendants of their obligation to take present action
 

which they insist is necessary to prepare to obey the injunc- 

tion. The stay order postpones defendants' obligation to take 

preparatory steps necessary to carry out the injunction bey
ond 

the time within which such preparation must be completed if 

they are to be meaningful. Defendants have argued to the trial 

court that after the current school term ends and the summer 

vacation period begins they will not have adequate personnel
 to 

carry out the assignment program they desire to undertake. 

Defendants Memorandum stated: . : 
1/ "In the instant case, defendant has filed a motion for a new 

trial, and the hearing of said motion has been set for May 

8, 1962. It is reasonable to assume that the Court might 

take the motion under advisement after the hearing. It is 

also reasonable to assume that if a new trial is granted 

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

new trial is held, and a further lapse of time before a judg- 

ment is rendered after the new trial. 

"In the interim, defendants must prepare for a new 

school term, which begins in September of 1962.
 The cur- 

rent school term is drawing to a close, and it is imperative 

that defendants make and carry out, without furt
her delay, 

plans for the registration, assignment, and transfer of 

students for the September term, 

"It is a matter of common knowledge that the parochial 

school system in the City of New Orleans has alre
ady conducted 

it § registration for the coming school term, 

“By 



Accepting this assertion, arguendo, it is apparent that the 

defendants own argument indicates that the stay should be vacated. 

1f defendants have any reason to believe that the injunction 

will ultimately be set aside, they may make preparations to 

assign pupils on that assumption, but at the same time should 

also be making preparations to obey the Court's order in the 

event that they are wrong. Defendants should not be permitted 

to sit on their hands and to do nothing so that they can later 

claim unreadiness to obey the injunction if it is ultimately 

upheld. In this connection, it is relevant to note that defend- 

ants have already publicly announced that they would go ahead 

with preparations for following their prior pupil assignment 

practices even before the stay order was granted. 

5. The school board has made no showing of any kind to 

demonstrate irreparable harm to it from being required merely 

to make preparations to obey the court's order pending deci- 

sion of the motion for new trial. Even if the injunction is 

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

preparations, particularly since they have already begun pre- 

paring to follow their prior procedures without reference to 

the stay order. The harm which plaintiffs would suffer if the 

injunction is eventually sustained but its enforcement is 

frustrated because defendants have been permitted to utilize 

the time obtained through the stay to render obedience more 

difficult, is plain and substantial. By this means, plaintiff 

would be deprived of enjoyment of their adjudicated rights even 

if they prevail on the merits. 

(Continued) 

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

adopted its procedure for the assignment, transfer and con- 

tinuance of all pupils for the school year 1961-1962 on 

April 24, 1961 (See Exhibit P-5). Since April 24, 1962 is 
now upon us, if the judgment previously entered herein is 

not stayed, defendants will not have sufficient time to 

properly prepare for the opening of school in September of 

this year." 



6. A cursory examination of defendants' motion for a 

new trial reveals that on its face it fails to state a basis for 

the relief requested since it is a patent attempt to relitigate 

old matter previously presented to and considered by the trial 

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

assertions that the judgment is contrary to the law and con- 

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

but are inappropriate basis for seeking new trial. There is 

clearly no basis for a claim that the trial court's opinion of 

April 3, 1962, contained manifest or obvious errors of law or 

fact which justify relitigation of the same issues of fact and 

law before the same court. The Court may weigh the likelihood 

that the motion for a new trial affords a sound basis for the 

relief prayed in determining whether a stay should be granted 

pending that motion. Where, as here, the motion for new trial 

is obviously insufficient, no stay should be granted. 

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

the injunction pending disposition of the motion for new trial 

pursuant to Title 28, U.S.C., §1651. Since the stay order 

sought to be vacated is by legal operation and effect a modi- 

fication of the injunction previously entered, this is an 

appropriate occasion for the exercise of the power to restore 

the injunction under the All-Writs Act (28 U.S.C. §1651). The 

Court's powers under the All-Writs Act may clearly be exercised 

on a basis consistent with Rule 62(c), Federal Rules of Civil 

Procedure to restore an injunction or to impose conditions upon 

the grant of a stay pending appeal. This is all the more appro- 

priate where the stay order determines the outcome of the litiga- 

tion as certainly as a ruling on the merits, but may be otherwise 

unreviewable. 

Respectfully submitted, 

James M. Nabrit, III 
Jack Greenberg 
Constance Baker Motley 
10 Columbus Circle 
New York 19, New York 

“7 - 



A. P., Tureau 
Ernest Morial 
A. M, Trudeau 
1821 Orleans Avenue 
New Orleans, Louisiana 

Attorneys for Movants 

CERTIFICATE OF SERVICE 

I hereby certify that on this the lst day of May, 1962, 

I served a copy of the foregoing Motion for Order Vacating Stay 

of Injunction and Reinstating Injunction, or in the Alternative, 

for an Order Modifying the Stay of Injunction, Etc., and the 

attached Exhibits, on Samuel I. Rosenberg, Esq., attorney for 

defendant Orleans Parish School Board, by mailing a copy of same 

addressed to him at 747 National Bank of Commerce Building, 

New Orleans 12, Louisiana, via United States mail, air mail 

special delivery, postage prepaid. 

James M. Nabrit, III 
Attorney for Movants