Norwood v. Harrison Motion to Dismiss or Affirm and Brief in Support of Motion to Dismiss

    In the Supreme Court of the United States
OCTOBER TERM, 1972

No. 72-77

DELORES NORWOOD, ET AL., 
Plaintiffs-Appellants,

vs.
D. L. HARRISON, ET AL., 

Defendants-Appellees.

A ppeal from  the Northern D istrict of M ississippi

MOTION TO DISM ISS OR AFFIRM AND BRIEF IN  
SUPPORT OF MOTION TO DISMISS

A. F. Summer
Attorney General of the State of 

Mississippi
W illiam  A. A llain 

First Assistant Attorney General of 
Mississippi

Heber Ladner, Jr.
Special Assistant Attorney General of 

Mississippi
Attorneys for Defendants-Appellees

E. L . M endenhall,. I n c ., 926 Cherry Street, Kansas City, M o. 64106, 421-3030



TABLE OF CONTENTS

MOTION TO DISMISS OR AFFIRM.............. ,.............  1
BRIEF IN SUPPORT OF MOTION TO DISMISS—

Facts ......................... - .......-...... ...... ...... -....................... 3
A. The Claim ........................... ..................... -.......3

Argument—
I. Aid to Students in Private and Parochial 

Schools by Lending Them Textbooks Does Not
Violate the Fourteenth Amendment ..............  5

II. The Mississippi Statute Does Not Foster Seg­
regated Schools in Purpose or E ffect..............  8

Conclusion ................................-...................-...........—-  10
Table of Authorities 

Cases

Abington School District v. Schempp, 374 U.S. 203, 83
S.Ct. 1560, 10 L.Ed.2d 844 (1963) ........................... .....  5

Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923,
20 L.Ed.2d 1060 (1968) ................................................ 5, 7

Burton v. Wilmington Parking Authority, 365 U.S. 715,
81 S.Ct. 856, 6 L.Ed.2d 45 (1961) ........................... . 7

Cochran v. Louisiana State Board of Education, 281
U.S. 370, -50 S.Ct. 335, 74 L.Ed. 913 (1930) ..............  6

Coffey v. Education Finance Commission, 275 F. Supp.
854 (S.D. Miss.) ................................................. ........... 9

Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504,
91 L.Ed. 711 (1947) ....................................................... 5

Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct.
717, 88 L.Ed. 938 (1944) ............................................. 5



II

Irvis v. Moose Lodge #107, 40 L.W. 4715 (No. 70-75,
June 12, 1972) ..................................................... -........  7,8

Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971) ...................................................   5,6

Peterson v. City of Greenville, 395 U.S. 298, 83 S.Ct.
1119, 10 L.Ed.2d 323 (1963) ........................................  ?

Poindexter v. Louisiana Financial Assistance Commis­
sion, 275 F. Supp. 833 (S.D. La., 1967), affirmed, 389
U.S, 571 (1968) ........................................    8,9

Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18
L.Ed.2d 830 (1967) .......................................................  9

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.
1161 (1948) ....................................................................  ?

Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 
L.Ed.2d 697 (1970) ................................-.............. —  6

Constitutional Provisions 
and' Statutes

Constitution of the United States—
First Amendment........................................... ------.......... 5
Fourteenth Amendment............................ -.............. 5, 7,10

Section 6656, Mississippi Code of 1942 .........................  4,7



In the Supreme Court of the United States
OCTOBER TERM, 1972

No. 72-77

DELORES NORWOOD, ET AL., 
Plaintiffs-Appellants, 

vs.
D. L. HARRISON, ET AL., 

Defendants-Appellees.

A ppeal from the Northern D istrict of M ississippi

MOTION TO DISMISS OR AFFIRM

Appellees move the Court, under Supreme Court Rule 
16, to dismiss the appeal in that it does not present a sub­
stantial federal question as to the claim that (1) a 1940 
law providing loaned textbooks to all individual students 
in both public and private schools violates equal protec­
tion.

Alternatively, appellees move the Court to affirm the 
final judgment of the District Court on the ground that 
it is manifest that the questions upon which the decision 
of the cause depends are so insubstantial as not to need 
further argument: (1) Because the claim that textbook
loans to individual students in both public and private 
schools is unconstitutional is obviously without merit and



2

because its unsoundness is unmistakably clear from the 
previous decisions of this Court.

It is, therefore, respectfully moved that this appeal 
be dismissed and, in the alternative, that the judgment of 
the District Court denying all relief be affirmed.

Respectfully moved this 8th day of August, 1972.

A. F. Sum m er
Attorney General of the State of 

Mississippi
W illiam  A. A llain

First Assistant Attorney General of 
Mississippi

Heber L adner, Jr.
Special Assistant Attorney General of 

Mississippi



3

BRIEF IN SUPPORT OF MOTION TO DISMISS

FACTS

A. The Claim.

Delores Norwood and other members of the plaintiffs’ 
class are black public school students of the Tunica County, 
Mississippi, School District. The defendants, D. L. Harri­
son, et al., are members of the Mississippi State Textbook 
Purchasing Board. The plaintiffs, in attendance at the de­
segregated unitary Tunica County School System, brought 
suit to enjoin the defendants from providing or permitting 
the distribution or sale of state owned textbooks to private 
racially segregated schools and academies. Their standing 
to sue was alleged to spring from their right to a totally 
nondiscriminatory school system and their further right to 
elimination of state support for racially segregated schools, 
which right had allegedly been frustrated by the creation 
of a racially segregated Tunica County institute of learning.

The statistical and empirical evidence marshalled by 
the plaintiffs to show a supposed connection between the 
growth and health of a private school system in Mississippi 
and the provision for textbooks cannot obscure the thrust 
of their complaint. The plaintiffs are enjoying their con­
stitutionally grounded right to a unitary public school 
system. While the trial produced evidence of a with­
drawal from public education in several Mississippi school 
districts, there was no proof that the statutory promise, 
existent since 1940, of provision for textbooks wherever a 
given student attended, was any moving force in the 
changes which ensued in student population. The three- 
judge Court found that ninety per cent (90%) of those 
students previously in public schools remain there.



4

Section 6656 of the Mississippi Code of 1942, mandates 
the distribution of free textbooks to Mississippi school 
children:

“This act is intended to furnish a plan for the 
adoption, purchase, distribution, care and use of free 
textbooks to be loaned to the pupils in all elementary 
and high schools of Mississippi. The books herein pro­
vided by the board shall be distributed and loaned free 
of cost to the children of the free public schools of the 
state, and all other schools located in the state which 
maintain educational standards equivalent to the 
standards established by the State Department of Edu­
cation for the state schools.”

Children in private schools have access to these books 
based on only one discretionary factor. The school attended 
must maintain educational standards equivalent to the 
standards of the State Department of Education.

The terms of the statute leave no room for interpreta­
tion. Since 1940, free textbooks have been provided to 
the children attending all private schools in each instance 
where textbook aid has been requested or recommended 
by representatives of the children or upon recommenda­
tion of a third party. Children attending all private and 
parochial schools located in the State are entitled to free 
textbooks under the statute if the school they are attending 
is located in the State and maintains the standards of the 
State Education Department. It is significant to note that 
the textbooks are loaned to individual students, even 
though distribution is handled through the school. The 
subsidy, if it be a subsidy, is certainly de minimis. The 
annual per pupil expenditure for new or replacement books 
is a mere six dollars.



5

Unquestionably, children attending newly formed pri­
vate schools are enjoying the textbooks. The board, with­
out an alternative, had to provide books to these students. 
Otherv/ise, thousands of carefully selected state owned 
textbooks would have been rendered useless, since they 
had already been allocated to each child.

ARGUMENT

I.
Aid to Students in Private and Parochial Schools
by Lending Them Textbooks Does Not Violate the
Fourteenth Amendment.

For the purposes of constitutional adjudication, the 
contours of forbidden action under the First Amendment’s 
establishment of religion clause, should be analogous to 
but more stringent than standards applicable to forbidden 
state action under the Fourteenth Amendment.1 Just as 
a state action may not foster an established religion, it may 
not support racial discrimination. This Court’s precedents 
concerning state provision for assistance to pupils in sec­
tarian schools require affirmance in this case. Board of 
Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 
1060 (1968); Everson v. Board of Education, 330 U.S. 1, 
67 S.Ct. 504, 91 L.Ed. 711 (1947); Abington School District 
v. Schempp, 374 U.S, 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 
(1963).

It is likewise certain from Lemon v. Kurtzman, 403 
U.S, 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) that state 
aid to religious institutions which offends the First Amend­
ment is direct institutional aid which results in an inter­

1. The rights protected or secured from abridgment under 
the First Amendment are said to occupy a preferred position. 
Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 
L.Ed. 938 (1944).



twined relationship between the government and the re­
ligious authority. Id. at 757. “ Neutral, or nonideological 
services, facilities or materials” may be provided free of 
the Establishment clause if they are given in common to 
all students. In striking down Pennsylvania’s aid to de­
fray teachers’ salaries in church related schools, the Kurtz- 
man Court found that the aid ran afoul of the carefully 
preserved distinction that aid must flow to the student and 
not to the church related school per se. Id. at 760. Non­
student centered financial assistance has likewise been up­
held for churches but only in the context where the in­
volvement of the state is not excessive and where there 
is no continuing call for state surveillance or entangle­
ment. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 
25 L.Ed.2d 697 (1970). While the tax exemption was to 
benefit the institution directly, it was saved by virtue of 
its application to all denominations and by the harshness 
that might be worked by taxing church property.

This Court has unerringly considered whether a given 
enactment has “a secular legislative purpose and a primary 
effect that neither advances nor inhibits religion.” Ever­
son, supra, at 858. The fact that aid may have assisted a 
given religious institution did not, in the cited cases, de­
flect this Court from considering the recipient of the aid 
and not the institutional by-product of that assistance. 
Specifically, the Allen Court reaffirmed Cochran v. Louisi­
ana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 
74 L.Ed. 913 (1930), holding that state wide provision for 
free textbooks to all students was permissible under the 
Fourteenth Amendment in that the state may further sec­
ular education through private schools as a proper public 
concern.

This Court treated the argument that free school books 
assist students in attending sectarian and parochial schools

6



7

as of no consequence. Even though the textbook aid was 
certainly of some value to the religious school, this Court 
acknowledged that line drawing was necessary, and that 
the aid was not so direct or substantial as to violate the 
Establishment clause. Allen, supra, at 1065. This line 
drawing function is more sharply delineated in the Four­
teenth Amendment cases in which the Court’s formulation 
has been that the state must “ insinuate itself into a position 
of interdependence [with otherwise private persons] . . . 
so that they must be recognized as a joint participant in 
the challenged activity.” Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). 
Surely six dollars ($6.00) per year per pupil expenditure, 
when all students of every race enjoy that benefit, cannot 
be said to be unconstitutional state aid. Furthermore, the 
notion that Section 6656 aids schools is at variance with 
the facts. No funds are provided to the school because the 
textbooks are loaned to the students, and ownership of 
the books remains in the state. These were significant 
facts in Allen, and they are significant facts here.

The Court has lately addressed itself to the degree 
of state action necessary to bring the Fourteenth Amend­
ment into play. Irvis v. Moose Lodge #107, 40 L.W. 4715 
[No. 70-75, June 12, 1972]. There our position was re­
affirmed in the assertion that private discrimination does 
not offend equal protection merely because “the private 
entity receives any sort of benefit from the State . . .”  Id. 
at 4718. To violate equal protection the state must be 
commanding a discriminatory result by its machinery. 
Shelley v. Kraemer, 334 U.S, 1, 68 S.Ct. 836, 92 L.Ed. 1161 
(1948); Peterson v. City of Greenville, 395 U.S, 298, 83 
S.Ct. 1119, 10 L.Ed.2d 323 (1963). Here, the Mississippi 
statute providing textbooks is in no such “symbiotic” re­



8

lationship with private discrimination. Irvis, supra, at 
4718.

One final factor cuts in favor of affirmance. Should 
the case be reversed, the District Court must decide which 
of 107 private schools can receive books. Stated “open 
door” policies must be looked into. Determinations must 
be reached as to the quantity of integration necessary to 
avoid the textbook ban. Further, what standard should 
be used for the state’s Catholic schools which have scant 
numbers of black students?

II.

The Mississippi Statute Does Not Foster Segre­
gated Schools in Purpose or Effect.

Judge John Minor Wisdom, writing for a three-Judge 
Court which enjoined Louisiana’s tuition grant system, 
distinguished this case:

“Any aid to segregated schools that is the product 
of the State’s affirmative, purposeful policy of fos­
tering segregated schools and has the effect of en­
couraging discrimination is significant state involve­
ment in private discrimination. (We distinguish, 
therefore, state aid from tax benefits, free school­
books, and other products of the State’s traditional 
policy of benevolence toward charitable and educa­
tional institutions.)” Poindexter v. Louisiana Finan­
cial Assistance Commission, 275 F. Supp. 833.

This ipse dixit from Judge Wisdom seems particu­
larly appropriate since his rationale would void “any state 
aid” if the purpose and effect were suspect.

The proscription on state aid fostering private dis­
crimination has fallen upon



9

“aid which is the product of the state’s affirmative, 
purposeful policy of fostering segregated schools and 
has the effect of encouraging discrimination . . 
Coffey v. Educational Finance Commission, 275 F. 
Supp. 854 (S.D. Miss.).
The state must significantly encourage private dis­

crimination both in purpose and effect. Reitman v. Mul- 
key, 387 U.S. 369, 87 S.Ct. 1627, 18 L,Ed.2d 830 (1967). 
The purpose is to be judged by the natural and probable 
effect of the legislation. Poindexter v. Louisiana Finan­
cial Assistance Commission, 275 F. Supp. 833 (S.D. La., 
1967), affirmed, 389 U.S. 571 (1968).

Neither in purpose nor effect does the Mississippi Text­
book law foster segregated schools. Unlike the tuition 
grants, it is a “neutral statute” without racial motivation. 
On the other hand, all the tuition grants were thinly 
veiled segregation statutes. Tuition grants were direct 
aid. As stated in Poindexter, “The private schools es­
tablished in Louisiana are direct beneficiaries of the 
grants in aid; the children or the parents are conduits 
to the school.” Poindexter, supra, at 852. Here textbook 
aid goes directly to the student.

The relationship between the growth of private schools 
in step with the increased revenue from tuition grants is 
well documented. Here, no such link is established and 
cannot be in the face of the unchallenged finding that 
90% of the students remain in public schools.



10

CONCLUSION

State statute’s provision for loans of textbooks to 
all students in both public and private schools does not 
offend the Equal Protection Clause of the Fourteenth 
Amendment. Neither does the Mississippi statute foster 
segregated schools in a way which would invalidate the 
statute.

Appellees submit that the appeal from the judgment 
of the District Court denying all relief should be dis­
missed, or, in the alternative, that the Judgment and 
Opinion upon which it is based should be affirmed with­
out further briefing and argument.

Respectfully submitted,

A. F. Summ er

Attorney General of the State of 
Mississippi

W illiam  A. A llain
First Assistant Attorney General of 

Mississippi
Heber Ladner, Jr.

Special Assistant Attorney General of 
Mississippi