New York State Association for Retarded Children, Inc. v. Carey Brief Amici Curiae

    I n THE

ii’tfprm? OInurt nf tlf? UnttTft States
O ctober T eem  1960 

No. 706

T h e  L egislature oe L ouisiana, et al.,

Appellants,

E arl B e n ja m in  B u sh , et al.,

Appellees.

a p p e a l  p r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t  f o r  t h e

EASTERN DISTRICT OF L O U ISIA N A , N E W  ORLEANS DIVISION

MOTION TO AFFIRM

A. P. T ureaud

1821 Orleans Ave.
New Orleans 16, La.

T hurgood M arshall 
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees

E lwood H . Chisolm

Of Counsel



I n t h e

Qlatirt of tlj£ Unttefc
O ctobee T eem  1960 

No. 706

T he  L egislature oe L ouisiana, et al.,

Appellants,

E ael B e n ja m in  B u sh , et al.,

Appellees.

APPEAL FROM  T H E  U N IT E D  STATES D ISTRICT COURT FOR TH E  

EASTERN DISTRICT OF L O U ISIA N A , N E W  ORLEANS DIVISION

MOTION TO AFFIRM

Appellees move to affirm the judgments below on the 
ground that the questions presented are so unsubstantial 
as not to need further argument.

Opinions Below

Neither the opinion filed November 30, 1960, nor the 
one issued December 21, 1960, is reported. The former, 
however, was printed by appellants (Appx. A, pp. 26-50) 
and the latter is appended by appellees {infra, p. la  et 
seq.).



2

Questions Presented

For the purposes of this motion, appellees adopt the 
“ Questions” as presented by appellants at pages 3-5 of 
the Jurisdictional Statement.

Statement of the Case

Though it contains a description of the several proceed­
ings and the rulings in the court below, the statement 
of the case given by appellants at pages 5-12 of the Juris­
dictional Statement omits many facts material to consid­
eration of the questions presented and includes, partic­
ularly in the last three paragraphs, much that is more argu­
ment than exposition. Nevertheless, appellees will not 
burden the Court with a counter-statement inasmuch as 
the omissions are covered in the opinions below and the 
statements on file here in Orleans Parish School Board 
v. Bush, 5 L. ed. 2d 36; United States v. Louisiana, 5 L. ed. 
2d 245; Orleans Parish School Board v. Bush, No. 589, 
October Term 1960; Id., No. 612, October Term 1960.

Reasons for Granting the Motion

This latest appeal in the New Orleans school desegre­
gation litigation brings into focus two attempts of the 
Louisiana Legislature to “war against the Constitution.” 
As such, the questions urged have been so plainly fore­
closed by decisions of this Court and the court below so 
manifestly decided them correctly that further argument 
is unnecessary. See United States v. Louisiana, 5 L. ed. 2d 
245; Orleans Parish School Board v. Bush, 5 L. ed. 2d 36; 
Fauhus v. Aaron, 361 U.S. 197, affirming 173 F. Supp. 944 
(E.D. Ark. 1959); Cooper v. Aaron, 358 U.S. 1, 16-19. See



3

also James v. Almond, 170 F. Supp. 331 (E.D. Va. 1959), 
appeal dismissed 359 U.S. 1006; James v. Duckworth, 170 
F. Supp. 342 (E.D. Va, 1959), affirmed 267 F. 2d 224 (4th 
Cir. 1959), cert, denied 358 U.S. 829; Orleans Parish School 
Board v. Bush, 242 F. 2d 156 (5th Cir. 1957), cert, denied 
354 U.S. 921. Cf. Riggs v. Johnson, 6 Wall. 166, 195 ; United 
States v. Peters, 5 Cranch. 115, 136.

Despite the vigor of those decisions, appellants earnestly 
argue that three of the eight “ questions presented” are 
so substantial as to require plenary consideration. They, 
in turn, have been converted into the following claims : one, 
“ that the district court was without jurisdiction or power 
to enjoin the Legislature of Louisiana or to interfere with 
the state’s control over its local affairs and the exercise of 
its [police] power;” two, “ that the United States has no 
right to appear as amicus curiae for the purpose of insti­
tuting action for further relief;”  and three, that “ the 
suits of the Louisiana plaintiffs against the state, without 
its consent, should be dismissed as in violation of the 11th 
Amendment” (Juris. Statement, p. 20).

None of these claims, appellants submit, has such sub­
stantiality that this case ought to be held for further 
argument.

1. Whatever its merit in the abstract, the lack of merit 
in the first claim is demonstrated at the outset by the legis­
lation which these appellants were enjoined from enforcing. 
By Act No. 17 of the First Extraordinary Session (Appel­
lants’ Appx. D, p. 22) and its reenactment in Act No. 2 
of the Second Extraordinary Session {Id., p. 55) plus the 
laws and resolutions by which they implemented those 
Acts (see, e.g., Id., pp. 39, 42, 45, 48, 52, 54), the Legisla­
ture and its individual members reserved to itself and 
undertook to exercise “ all administrative authority” for



4

the maintenance and operation of the New Orleans public 
school system.

Therefore, as the District Court said (Appellants’ Appx. 
A, pp. 31-32),

there is no merit in the claim of “ legislative immunity” 
put forward on behalf of the committee of the Legis­
lature and its members who are sought to be enjoined 
from enforcing measures which grant them control of 
the New Orleans public schools. The argument is 
specious. There is no effort to restrain the Louisiana 
Legislature as a whole, or any individual legislator, 
in the performance of a legislative function. It is only 
insofar as the lawmakers purport to act as admin­
istrators of the local schools that they, as well as 
others concerned, are sought to be restrained from 
implementing measures which are alleged to violate 
the Constitution. Having found a statute unconstitu­
tional, it is elementary that a court has power to en­
join all those charged with its execution. Normally, 
these are officers of the executive branch, but when the 
legislature itself seeks to act as executor of its own 
laws, then, quite obviously, it is no longer legislating 
and is no more immune from process than the admin­
istrative officials it supersedes. As Chief Justice Mar­
shall said in Marburg v. Madison, 5 U.S. (1 Cranch) 
137, 170; “ It is not by the office of the person to whom 
the writ is directed, but the nature of the thing to be 
done, that the propriety or impropriety of issuing (an 
injunction) is to be determined.”

See also the December 21, 1960 opinion of the court below 
(Appellees’ Appx., at pp. la -lla ). Cf. Cooper v. Aaron, 
358 U.S. 1, 1619; Ex parte Virginia, 100 U.S. 339, 346-347; 
Virginia v. Rives, 100 U.S. 313, 318; Riggs v. Johnson,



5

6 Wall. 166, 195; United States v. Peters, 5 Cranch 115, 
136.1

2. Appellants’ second claim, in effect, challenges the 
jurisdiction of the District Court to entertain—and issue 
an injunction upon—the amicus petition filed by the United 
States in connection with the proceedings which culminated 
in the opinion and judgment of December 21, 1960. Ap­
pellees say that this contention also lacks merit.

The inherent authority of the District Court to call upon 
the law officers of the United States for assistance to pro­
tect the integrity of the judicial process and maintain 
the due administration of justice is so settled as to require 
no further argument. See, Universal Oil Co. v. Root Re­
fining Co., 328 U.S. 575, 580, 581; Hazel-Atlas Glass Co. 
v. Hartford Empire Co., 322 U.S. 238, 246; Faubus v. 
United States, 254 F. 2d 797 (8th Cir. 1958), cert, denied 
358 U.S. 829; Kasper v. Brittain, 245 F. 2d 97 (6th Cir. 
1957). And see The Exchange, 7 Cranch 116, 118-119; 
Northern Securities Co. v. United States, 191 U.S. 555, 556; 
Howard v. Illinois Central R. Co., 207 U.S. 463, 490; A. B. 
Dick Co. v. Marr, 197 F. 2d 498, 502, cert, denied 344 U.S. 
905.

In addition, the District Court had authority to entertain 
the amicus petition of the United States for an injunction 
against appellants as an exercise of its ancillary jurisdic­
tion to effectuate its orders and prevent them from being 
frustrated. 28 U.S.C.A. §1651. See Local Loan Co. v. 
Hunt, 292 U.S. 234, 239; Julian v. Central Trust Co., 193 
U.S. 93, 112; Root v. Woolworth, 150 U.S. 401, 410-413; 
Steelman v. All Continent Corp., 301 U.S. 278, 288-289;

1 For further enlightenment on the role of the Pennsylvania 
legislature in this historic controversy, see Mr. Justice Douglas, 
“ United States v. Peters, 5 Cranch 115,” 19 F.R.D. 185 passim.



6

Dugas v. American Surety Co., 300 U.S. 414, 428; Looney 
v. Eastern Texas Railroad Co., 247 U.S. 214, 221.

Furthermore, the authority given the Attorney General 
of the United States and United States Attorneys by 
statutes such as 5 U.S.C.A. §§ 306, 309, 316, is obviously 
not limited to cases in which the Government is a formal 
party. See Booth v. Fletcher, 101 F. 2d 676, 681-682 (D.C. 
Cir. 1938). See also Florida v. Georgia, 17 How. 478, 492- 
495. For these statutes grant the Government’s law officers 
broad power to initiate proceedings to safeguard national 
interests. See United States v. California, 332 U.S. 19, 27; 
Sanitary District of Chicago- v. United States, 266 U.S. 405, 
425-426; Kern River Co. v. United States, 257 U.S. 147, 154- 
155; United States v. San Jacinto Tin Co., 125 U.S. 273, 
278-280, 284-285; United States v. Throckmorton, 98 U.S. 
61, 70; Vitamin Technologists, Inc. v. Wisconsin Alumni 
Research Foundation, 146 F. 2d 941, 946 (9th Cir. 1945).

Finally, the authority of the United States to intervene 
as amicus curiae in this action is not limited by the fact 
that it does not involve a property interest of the Govern­
ment. See In re Dels, 158 U.S. 564, 584; United States v. 
American Bell Telephone Co., 128 U.S. 315, 357-358, 367- 
368; United States v. United States Fidelity d  Guaranty 
Co., 106 F. 2d 804, 807 (10th Cir. 1939), reversed on other 
grounds 309 U.S. 506.

Accordingly, the right of the United States to appear as 
amicus curiae in the proceedings below and the jurisdic­
tion of the District Court to grant an injunction on its 
petition are beyond dispute.2

2 Even if the cases looked the other way, appellants were not 
prejudiced inasmuch as they concede that appellees “also filed a 
petition for preliminary injunction against all defendants from 
enforcing the provisions of the same Acts of the Legislature” 
(Juris. Statement, p. 9). Such admission would also appear to 
make a determination of this claim unnecessary.



7

3. The third claim pressed by appellants attempts to 
resuscitate the Eleventh Amendment argument previously 
held to be without merit in Orleans Parish School Board v. 
Bush, 242 F. 2d 156, 160-161 (5th Cir. 1957), cert, denied 
354 U.S. 921 and School Board of City of Charlottesville 
v. Allen, 240 F. 2d 59, 62-63 (4th Cir. 1956).

Moreover, although appellants seem to be unaware of it, 
the difference between using the injunctive power of fed­
eral courts to direct the exercise of discretion by state 
officers the situation where the Eleventh Amendment is 
applicable—and using it to enjoin violation of constitu­
tional rights under authority of state office—where, as 
here, that Amendment does not apply—was definitively 
settled in Ex parte Young, 209 U.S. 123. Therefore, the 
District Court’s refusal to dismiss the complaints and peti­
tions filed in the several proceedings brought up on this 
appeal follows an unbroken course of decisions in this 
Court for over fifty years. See, e.g., Lane v. Watts, 234 
U.S. 525,̂  540; Truax v. Raich, 239 U.S. 33; Sterling v. 
Constantin, 287 U.S. 378, 393, and cases cited therein; 
Georgia R. & Big. Co. v. Redwine, 342 U.S. 299, 303-306 
and cases cited therein.

CONCLUSION

For the foregoing reasons the questions presented by 
appellants are manifestly unsubstantial and this motion 
to affirm should be granted.

Respectfully submitted,

A. P. T ureaitd 
T hurgood M arshall

Attorneys for Appellees

E lwood H . Chisolm  
Of Counsel



la

APPENDIX

UNITED STATES DISTRICT COURT 
E astern D istrict or L ouisiana

N ew  O rleans D ivision

No. 3630— Civil Action

E arl B e n ja m in  B u sh , et al.,

Plaintiffs,
versus

Orleans P arish  S chool B oard, et al.,

Defendants.

A. P. Tureaud
Attorney for Plaintiffs

M. Hepburn Many, United States Attorney
Attorney for United States of America, Amicus 
Curiae

Samuel I. Rosenberg
Attorney for Orleans Parish School Board, Board 
Members Lloyd Rittiner, Louis G. Riecke, Matthew 
R. Sutherland and Theodore H. Shepherd, Jr., and 
Dr. James P. Redmond, Superintendent of Orleans 
Parish Schools

Jack P. F. Gremillion, Louisiana Attorney General 
Michael E. Culligan, Assistant Attorney General 
John E. Jackson, Jr., Assistant Attorney General 
Weldon Cousins, Assistant Attorney General 
Henry Roberts, Assistant Attorney General

Attorneys for Jack P. F. Gremillion as Louisiana 
Attorney General, A. P. Tugwell as State Treas-



2a

urer, Shelby M. Jackson as State Superintendent 
of Education, Members of the State Board of 
Education, and Boy M. Theriot as State Comp­
troller

Monroe & Lemann 
J. Baburn Monroe

Attorneys for the Whitney National Bank of New 
Orleans

Phelps, Dunbar, Marks, Claverie & Sims 
Louis B. Claverie

Attorneys for the Hibernia National Bank in New 
Orleans

Sehrt & Boyle 
Clem H. Sehrt

Attorneys for the National ■ American Bank of 
New Orleans

Jones, Walker, Waechter, Poitevent, Carr ere & Denegre 
George Denegre

Attorneys for the National Bank of Commerce in 
New Orleans

Alvin J. Liska, New Orleans City Attorney 
Joseph Hurndon, Assistant City Attorney 
Ernest L. Salatich, Assistant City Attorney 

Attorneys for the City of New Orleans

W. Scott Wilkinson 
Gibson Tucker, Jr.

Attorneys for Edward LeBreton and Seven Others 
Constituting the Committee of Eight of the Legis­
lature of Louisiana

B ives, Circuit Judge, and Christenberey and W righ t , Dis­
trict Judges;



3a

In these proceedings, we consider again1 * * * * * the progress of 
desegregation in the public schools of the Parish of Orleans 
and the additional efforts made to interfere with that 
achievement. Because of what has been said and done by 
the government of Louisiana in all its branches, it becomes 
necessary to restate the fundamental principles that gov­

1 The Orleans Parish school desegregation controversy has been
in the federal courts for eight years.

In 1954, the state adopted a constitutional amendment and two 
segregation statutes. The amendment and Act 555 purported to re­
establish the existing state law requiring segregated schools. Act 
556 provided for assignment of pupils by the school superintendent. 
On February 15, 1956, this court held that both the amendment 
and the two statutes were invalid. The court issued a decree en­
joining the School Board, “ its agents, its servants, its employees, 
their successors in office, and those in concert with them who shall 
receive notice of this order” from requiring and permitting segre­
gation in the New Orleans schools. Bush v. Orleans Parish School 
Board, 138 F. Supp. 336, 337, aff’d, 242 F. 2d 156, cert, denied, 
354 U.S. 921.

Not only was there no compliance with that order, but immedi­
ately thereafter the Legislature produced a new package of laws, 
in particular Act 319 (1956) which purported to “freeze” the 
existing racial status of public schools in Orleans Parish and to 
reserve to the Legislature the power of racial reclassification of 
schools. On July 1, 1956, this court refused to accept the School 
Board’s contention that Act 319 had relieved the Board of its 
responsibility to obey the desegregation order. In the words of 
the court, “any legal artifice, however cleverly contrived, which 
would circumvent this ruling [of the Supreme Court, in Brown v. 
Board of Education, 347 U.S. 483] and others predicated on it, is 
unconstitutional on its face. Such an artifice is the statute in suit,” 
Bush v. Orleans Parish School Board, 163 F. Supp. 701, aff’d, 268 
F. 2d 78. See also, Lane v. Wilson, 307 U.S. 268.

Nevertheless, the Legislature continued to contrive circumventive 
artifices.

In 1958 a third group of segregation laws was enacted, including 
Act 256, which empowered the Governor to close any school under 
court order to desegregate, as well as any other school in the system. 
In the first court test of this law7 it was struck down as unconsti­
tutional by this court on August 27, 1960. Bush v. Orleans Parish 
School Board, 187 F. Supp. 42.

On July 15, 1959, the court ordered the New Orleans School 
Board to present a plan for desegregation, Bush v. Orleans Parish 
School Board, No. 3630, but there was no compliance. Therefore,



4a

ern this controversy. Under the circumstances, they can­
not be declared too often or too emphatically. These prin­
ciples are:

1. That equality of opportunity to education through 
access to non-segregated public schools is a right secured 
by the Constitution of the United States to all citizens 
regardless of race or color against state interference. 
Brown v. Board of Education, 347, U.S. 483.

2. That, accordingly, every citizen of the United States, 
by virtue of his citizenship, is bound to respect this con-

on May 16, 1960, the court itself formulated a plan and ordered 
desegregation to begin with the first grade level in the fall of 1960.

For the fourth time, in its 1960 session, the Legislature produced 
a packet of segregation measures, this time to prevent compliance 
with the order of May 16, 1960. Four of these 1960 measures— 
Acts 333, 495, 496 and 542—and the three earlier acts referred to 
above—Act 555 of 1954, Act 319 of 1956 and Act 256 of 1958— 
were declared unconstitutional by a three judge court on August 
27, 1960, in the combined cases of Bush v. Orleans Parish School 
Board and Williams v. Davis, and their enforcement by “ the Honor­
able Jimmie H. Davis, Governor of the State of Louisiana, and all 
those persons acting in concert with him, or at his direction, in­
cluding the defendant, James F. Redmond,” was enjoined. Bush 
v. Orleans Parish School Board, 187 F. Supp. 42, 45. At the same 
time, the effective date of the desegregation order was postponed 
to November 14, 1960.

Again, at the First Extraordinary Session of 1960, the Louisiana 
Legislature adopted a series of measures designed to thwart the 
orders of this court. Even after integration was an accomplished 
fact, the Legislature sought to defeat it. On November 30, 1960, 
this court held Acts numbered 2, 10 through 14, and 16 through 23, 
as well as House Concurrent Resolutions Nos, 10, 17, 18, 19 and 23, 
unconstitutional. Bush v. Orleans Parish School Board, —— F. 
Supp.------  (Nov. 30, 1960).

Undeterred, in its Second Extraordinary Session for 1960, the 
Louisiana Legislature passed the measures here under considera­
tion.

At this writing the Legislature has entered into an unprecedented 
third special session, from which another “segregation package” is 
presumably to be expected.



5a

stitutional right, and that all officers of the state, more 
especially those who have taken an oath to uphold the 
Constitution of the United States, including the governor, 
the members of the state legislature, judges of the state 
courts, and members of the local school boards, are under 
constitutional mandate to take affirmative action to accord 
the benefit of this right to all those within their jurisdiction. 
U. S. Const., Art. VI, cl. 2, 3; Cooper v. Aaron, 358, U. S. 1.

3. That when, notwithstanding their oath so to do, the 
officers of the state fail to obey the Constitution’s com­
mand, it is the duty of the courts of the United States to 
secure the enjoyment of this right to all who were deprived 
of it by action of the state. Brown v. Board of Education, 
349, U.S. 294, 299-301.

4. That the enjoyment of this constitutional right can­
not be denied or abridged by the state, and that every law 
or resolution of the legislature, every act of the executive, 
and every decree of the state courts, which, no matter how 
innocent on its face, seeks to subvert the enjoyment of this 
right, whether directly through interposition schemes, or 
indirectly through measures designed to circumvent the 
orders of the courts of the United States issued in protec­
tion of the right, are unconstitutional and null. Cooper v.
Aaron, supra; United States v.. Louisiana,------  U.S. ------
(Dec. 12, 1960), denying stay in United States v. Louisiana, 
------ F.Supp.------- (Nov. 30,1960).

All this has been clear since 1954 when the Supreme 
Court announced its decision in Brown v. Board of Educa­
tion, 347 U.S. 483. Yet, Louisiana’s record since that time 
has been one of stubborn resistance.2 With singular per­
sistence, at every session since 1954, its Legislature has 
continued to enact, and re-enact, measures directly in­

2 See Note 1.



6a

tended to deny colored citizens the enjoyment of their 
constitutional right, the most recent and the most flagrant 
being the interposition declaration of the First Extraor­
dinary Session of 1960 which purports to nullify the right 
itself. In each instance, this court has patiently examined 
the legislation and explained the reason why it could not 
stand. The segregation packages enacted at the Regular 
Sessions of 1954, 1956, 1958 and 1960, and at the First 
Extraordinary Session of 1960, have all been considered 
in detail.3 The basis of these rulings is obvious enough. 
But, when this court, with what no one dare term undue 
haste, finally set a date for the practical enjoyment of the 
constitutional right already so long delayed, and invited 
the School Board of Orleans Parish, where implementa­
tion was to begin, to submit a plan of desegregation, a 
new line of attack was initiated. Orleans Parish and its 
School Board now became the prime target.

The Louisiana Legislature initially enacted measures to 
deprive the Board of the power to comply with the orders 
of the court. In consequence, the Orleans School Board 
offered no suggestions and this court was compelled to 
devise its own plan of desegregation, admittedly a modest 
one involving initially only the first grade. On the plea 
of the Board, the effective date for the partial desegrega­
tion of the public schools of New Orleans was delayed two 
months to November 14, 1960. At length, the Orleans 
Parish School Board realized its clear duty and announced 
its proposal to admit five Negro girls of first-grade age to 
two formerly all-white schools. But for obeying the con­
stitutional mandate and the orders of this court, the Board 
brought on itself the official wrath of Louisiana. Despite 
reiterated injunctions expressly prohibiting them from 
“ interfering in any way with the administration of the 
public schools for Orleans Parish by the Orleans Parish

3 See Note 1.



7a

School Board,” 4 the members of the Legislature, already 
called into special, now apparently continuous, session,5 
took every conceivable step to subvert the announced in­
tention of the local School Board and defy the orders of 
this court. Acts and resolutions were passed to abolish 
the Orleans Parish School Board and transfer the admin­
istration of the New Orleans schools to the Legislature, 
and when the enforcement of these measures was restrained, 
four members of the local Board were attempted to be 
addressed out of office. As we noted in declaring these acts 
and resolutions unconstitutional,6 they were of course part 
of the general scheme to deny the constitutional rights 
of the plaintiffs here. But, more than that, there was in this 
legislation a deliberate defiance of the orders of this court 
issued in protection of those rights. If for no other rea­
son, the measures were void as illegal attempts to thwart 
the valid orders of a federal court.

Against this background, it is nevertheless asserted that 
the present acts and resolutions, Act 27 and House Con-.

4 See, e.g., Bush v. Orleans Parish School Board, 187 F. Supp.
42; id .,------ F. Supp.-------  (Nov. 30, 1960).

5 At this writing, the legislators are in their third successive 
special session.

6 Bush v. Orleans Parish School Board,------ F. Supp.-------  (Nov.
30, 1960).

7 At the outset the defendants represented by the Attorney Gen­
eral of Louisiana, citing Title 28, U. S. Code, Section 2284, moved 
for a stay of these proceedings insofar as they relate to Act 2 of 
the Second Extraordinary Session of 1960 on the ground that a 
state court, in litigation challenging the constitutionality thereof, 
has issued a temporary restraining order against its enforcement. 
The action in the state court is a taxpayers’ suit seeking, not the 
enforcement of, but an injunction against the enforcement of Act 
2. Since 28 U. S. C. §2284 requires a stay in this court only where 
the state court action in which the stay has been granted is a suit 
to enforce the statute rather than to enjoin its enforcement, that 
section appears inapplicable here.

If this be deemed a too technical reading of §2284, still that 
section has no application here because the stay in state court



8a

current Resolutions 2, 23 and 28, are invulnerably insulated 
from federal judicial review. Yet they are no different in 
kind, or in purpose, from those just discussed. Again the 
plain object of the measures is to frustrate the Orleans 
Parish School Board in its effort to comply with this court’s 
orders,8 and, again, the effect of the measures is to defy 
this court’s injunction prohibiting interference with the 
administration of the local schools by its own elected school 
board.9 Thus, Act 2 of the Second Extraordinary Session 
of 1960 expressly purports to vest primary control of the 
New Orleans schools in the Legislature itself under the 
very acts and resolutions already declared unconstitutional

enjoins the enforcement of only one section of the state statute in 
question, the section which relates to the appointment of a school 
board with only fiscal functions. It does not in any way enjoin the 
meat of the statute, the section providing for the control and 
operation of the Orleans Parish schools by the Louisiana Legis­
lature rather than the Orleans Parish School Board. It is this 
latter section which is of primary importance here. Since the state 
court stay is not broad enough to protect the parties here in suit, 
§2284 has no application. Dawson v. Kentucky Distilleries Co., 255 
U.S. 288, 297. Moreover, and perhaps this should have been men­
tioned first in order of importance, the state court stay, initially 
granted at the district court level, has now been “hereby dissolved, 
recalled and set aside” by the Supreme Court of Louisiana. George 
L. Singelmann, et al. v. Jimmie H. Davis, et al., La. Sup. Ct., No. 
45,477 (Dec. 15, 1960).

8 The Orleans Parish Board is more than an original defendant 
in these proceedings. As noted, it is itself under a constitutional 
duty, and court order, to implement the right in question, and, 
may assert the right of its wards, the school children of Orleans 
Parish. Moreover, it has a right to be free from interference in 
complying with the orders of this court. Unquestionably, this right 
is a federal right. It will be protected by this court to the full 
extent of the law. See Brewer v. Hoxie School District No. 46, 
8 Cir., 238 F. 2d 91.

9 The United States obviously has a vital interest in vindicating 
the authority of the federal courts. It is therefore appropriate that 
the Government, as amicus curiae, institute proceedings herein to 
protect the court against illegal interference. Faubus v. United 
States, 8 Cir., 254 F. 2d 797, 804-805.



9a

by this court, and, for fiscal matters, to create a new board. 
House Concurrent Resolutions 2, 23 and 28 of the same 
session attempt to deny the School Board control of its 
own funds deposited in local banks and warn the banks 
against honoring the Board’s checks. However local in 
character Act 2 and Resolutions 2, 23 and 28 may appear, 
since they would discriminate against Negro children 
through interference with the orders of this court, they
are invalid. Gomillion v. Lightfoot, ------  U.S. ------  (Nov.
14, 1960); Cooper v. Aaron, 358 U. S. 1: Brown v. Board 
of Education, 347 U.S. 483.

Before the court also is the application of the Orleans 
Parish School Board for a temporary injunction requiring 
certain banks in the City of New Orleans to honor its 
checks drawn on its accounts in those banks. Because of 
the resolutions warning the banks not to recognize the 
Orleans Parish School Board as such, the banks, pending 
court direction, have blocked the accounts and refused to 
honor checks drawn on them by anyone. In addition, the 
Board asks that the City of New Orleans, as the tax col­
lector for the Board, be directed, by temporary injunction, 
to remit to the Board the taxes so collected as required by 
law.

In view of our holding herein that Act 2 and House Con­
current Resolutions 2, 23 and 28 of the Second Extraor­
dinary Session of the Louisiana Legislature of 1960 are 
invalid, the Orleans Parish School Board, as the duly 
constituted and elected authority to operate the public 
schools of New Orleans, is the owner of the bank accounts 
in question and the proper party to draw checks thereon. 
By the same holding the City is required to remit to the 
Board its tax monies.

Finally, the United States, amicus curiae, has moved for 
a temporary restraining order against Act 5 of the Second 
Extraordinary Session of 1960. This Act would make the



10a

Attorney General of Louisiana counsel for the Orleans 
Parish School Board, replacing counsel named by the 
Board. The Attorney General argues that certainly the 
Legislature has the right to name counsel for a state hoard 
which it created, certainly this is a local matter unaffected 
hy any federal constitutional considerations.

Unquestionably, the appointment of counsel for the 
Board is a local matter. I f the appointment is not part 
of the legislative scheme of discrimination, it is insulated 
from federal judicial review. Cooper v. Aaron, supra. 
Let us see then what the purpose of Act 5 is, what its effect 
would be. Gomillion v. Lightfoot, supra.

The Orleans Parish School Board is under the injunction 
of this court to desegregate the public schools in the City 
of New Orleans. After several years resistance, it is now 
making a good faith effort to comply. In this effort it is 
being harassed by the Louisiana Legislature which has 
been sitting in successive extraordinary sessions solely 
for this purpose. During these sessions, the Legislature, 
in it determination to preserve racial segregation in the 
Orleans Parish schools, has on four occasions sought to 
wrest control of the schools from the Board and on one 
occasion sought to address its majority out of office. The 
Legislature has also brought financial chaos to the Board 
through a series of statutes and resolutions denying the 
Board control of its fisc, one resolution even warning the 
banks not to honor the Board’s checks drawn on its own 
accounts.

Against this harassment the Board, through its counsel, 
has sought the protection and the aid of this court in carry­
ing out its orders. In these present proceedings, for ex­
ample, the Board, through its counsel, has sought the aid 
of the court in unfreezing its bank accounts so that the 
salary checks of its employees will be honored. The At­
torney General, pursuant to Act 5, has sought to replace



11a

counsel for the Board, and without consulting his new 
client, moved to withdraw the Board’s motion against the 
banks. Thus the purpose of Act 5 becomes clear, if indeed 
there was ever doubt. Its purpose is to require the Board, 
in its effort to comply with the orders of this court, to use 
the opposition’s lawyer to protect itself from the opposi­
tion. Thus Act 5 is exposed as one of the Legislature’s less 
sophisticated attempts to preserve racial discrimination in 
the public schools of New Orleans.

The temporary injunction will issue as prayed for, as 
will the temporary restraining order. Decree to be drawn 
by the court.

/ s /  R ichard T. R ives 
Richard T. Rives, Judge 

United States Court of Appeals

/ s /  H erbert W. Christenberby 
Herbert W. Christenberry, Chief Judge 

United States District Court

/ s /  J. S helly  W right 
J. Skelly Wright, Judge 

United States District Court

New Orleans, Louisiana 

December 21st, 1960



SUITE 1790 
10 COLUMBUS 

NEW YORK 19,