Louisiana State Board of Education v Samuel Allen Brief for Appellees

    I n  the

llnlttb IHatrs ©ami 0! Appeals
F oe t h e  F if t h  C ir c u it

No. 18,522

L o u isia n a  S tate  B oard of E d u c a tio n , 
N a s h  R oberts, President, et al.,

—versus—
Appellants,

S a m u e l  A l l e n , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

A. IJ. T ureaud  
A. M. T r u d e a u , Jr.
E rn est  N . M orial

1821 Orleans Avenue 
New Orleans 16, Louisiana

C o n stan ce  B ak e r  M o tley  
T hurgood  M a r s h a ll  

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees



In th e

Mnxtvb States (Emtrt of Appeals
F or t h e  F if t h  C ir c u it

No. 18,522

L o u isia n a  S ta te  B oard of E d u c a tio n , 
N a s h  R oberts, President, et al.,

—versus-
Appellants,

S a m u e l  A l l e n , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

Statement of the Case

The Statement of the Case as set forth by appellants in 
their brief is not controverted; however, appellees believe 
that appellants’ Statement of the Case should be supple­
mented by the following facts appearing in the record on 
appeal:

The injunctive order entered by the court below, from 
which appellants appeal, enjoins appellants:

“ . . . from continuing to enforce a policy, practice, 
custom and usage of excluding plaintiffs and other



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qualified Negro students from the Shreveport Trade 
School located in the City of Shreveport, Louisiana, 
solely because of their race and color (R. 47).”

One of the affidavits submitted by appellees in support of 
their motion for summary judgment has attached thereto 
a bulletin of the Shreveport Trade School (R. 32). This 
bulletin states as follows:

“ . . . The Shreveport Trade School was created and 
established by the Legislature of the State of Louisiana 
on July 9, 1936, by House Bill No. 428, Act No. 265, 
for the education of the white people of the State of 
Louisiana, in Shreveport, Caddo parish, Louisiana, 
under the supervision of the State Board of Education.” 
(Emphasis added.)

Appellants did not challenge the validity of the docu­
ment in which this statement was contained by counter­
affidavit or otherwise.

The racial policy of the Louisiana State Board of Educa­
tion with respect to the Shreveport Trade School was thus 
before the court below on motion for summary judgment.

One of the affidavits of the director of the Shreveport 
Trade School, which was submitted in opposition to motion 
for summary judgment, admits that on December 17, 1957 
appellee Ed. S. Allen made application for admission to 
the Shreveport Trade School to pursue a course of instruc­
tion in sheet metal work (R. 43).

In opposition to appellees’ motion for summary judg­
ment, appellants also submitted the affidavit of one John 
Toler, who described himself in his affidavit as secretary of 
the Shreveport Sheet Metal Workers Joint Apprenticeship 
Committee. In his affidavit, Mr. Toler states that:

“ . . . he has conducted . . .  a survey of . . .  job open­
ings and placements in the sheet metals trade in



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Shreveport with the various contractors and individual 
members of the trade union, and such survey reflects 
that no person of the negro race is now employed in 
such trade and that no such job opening or placement 
presently exists in said trade in Shreveport for such 
a person” (R. 45).

Toler’s affidavit was submitted in support of another 
affidavit of Jerry Willard Moore, director of the Shreveport 
Trade School, who stated in his affidavit:

“ THAT, the policy of this trade school, in accordance 
with the Louisiana State Plan for Vocational Educa­
tion and the United States Administration of Voca­
tional Education, is to admit students for training only 
in those areas in which the student has employment 
opportunities in the area” (R. 43).

This affidavit of Mr. Moore then stated:

“ THAT, your affiant is familiar with the sheet metal 
trade in the Shreveport area, and is familiar with the 
employment practices in said trade. In the Shreveport 
area there is presently not a single negro engaged in 
the sheet metal trade, and absolutely no demand for 
negroes to pursue said trade” (R. 43-44).

“ THAT, in view of the employment opportunities as 
hereinafter stated, it would be impossible to employ 
a negro in the sheet metal trade in the Shreveport 
area” (R. 44).

Another affidavit of the director admits that appellee 
Green L. Pearrie made application on December 16, 1957 to 
be enrolled in the Shreveport Trade School to pursue train­
ing as a barber (R. 24). This affidavit alleges that this 
applicant was denied admission “because he had not re­
ceived prior approval of the Louisiana State Board of 
Barber Examiners, said approval being a requisite of the



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school in order to be admitted” (R. 24). However, the 
bulletin of the school sets forth no such requirement in 
describing the barbering course (R. 36) .

Other affidavits of the director admit that the other 
appellees applied for admission (R. 23, 42).

Upon the hearing of appellees’ motion for summary 
judgment, the court below did not immediately grant the 
motion. Both parties were given additional time .within 
which to submit additional documentary evidence and affi­
davits (R. 28). It wasn’t until after these additional affi­
davits and the additional documentary evidence was sub­
mitted that a summary judgment was granted (R. 46) and 
an injunction issued (R. 47).

ARGUMENT

I.

Appellants’ contention that the court below erred in 
holding that the Louisiana State Board of Education 
could be made a party defendant to this suit is frivolous 
and wholly without merit.

In Orleans Parish School Board v. Bush, 242 F. 2d 156 
(5th Cir. 1957), this Court expressly considered the question 
whether a .suit against an agency of the State of Louisiana 
to enjoin unconstitutional action by such state agency is 
such a suit against the State of Louisiana as is prohibited 
by the Eleventh Amendment to the Constitution of the 
United States.

This Court held in that case that where a suit does not 
seek to compel state action, but merely seeks to prevent 
action by state officials which is unconstitutional, such a 
suit is not a suit against a state.



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In that case the state agency sued was a parish school 
board. The relief sought was an injunction enjoining racial 
segregation in the parish schools.

In Board of Supervisors of L. S. U. ete.’ V. Fleming, 265 
F. 2d 736 (5th Cir. 1959), this Court ruled that a. suit 
against the Board of Supervisors of Louisiana State Uni­
versity, a special agency of the State of Louisiana, was 
likewise not a prohibited suit against the state where the 
plaintiffs sought to enjoin their exclusion from the state 
university solely on account of their race and color.

This Court’s ruling in the Bush case was relied upon by 
a three judge district court in Dorsey v. Slate Athletic 
Commission (E. D. La. 1958), 168 F. Supp. 149, ail’d 359 
U. S. 532 (1959) holding that it had jurisdiction of a suit 
against the Louisiana State Athletic Commission, a cor­
porate agency of the State of Louisiana, to enjoin the 
enforcement of a rule of the Commission and a statute of 
the State of Louisiana prohibiting boxing matches between 
Negro and white contestants.

The order entered by the court below does not seek to 
compel any action by the State of Louisiana. It prevents 
action by the State Board of Education of Louisiana, and 
its agents, which violates the constitutional rights of appel­
lees, i.e., it prevents the State Board of Education and its 
agents from continuing to enforce a policy, practice, custom 
and usage of excluding appellees and other qualified Negro 
students from the Shreveport Trade School solely because 
of race and color.

The same type of relief against agencies of the State of 
Louisiana was granted in the Bush case, supra, the Fleming 
case, supra, and the Dorsey case, supra.

Consequently, the contention made by appellants has 
been considered by prior recent decisions of this Court and



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by the United States Supreme Court in the recent Dorsey 
case, supra, and has been decided adversely to appellants’ 
contention. It is, therefore, clear that the first contention 
of appellants on this appeal is so unsubstantial as to be 
patently frivolous and wholly without merit.

II.
A summary judgment was properly granted by the 

court below.

Appellees supplemented the Statement of the Case made 
by appellants in their brief for the reason that the record 
in this case discloses that there was clearly no genuine 
issue as to any fact material to the question whether appel­
lants are enforcing a policy, custom and usage of exclud­
ing plaintiffs and other qualified Negroes from the Shreve­
port Trade School solely because of race and color.

The appellees’ racial policy was set forth in the official 
bulletin of the Shreveport Trade School (R. 32). There 
all applicants were put on notice that the institution was 
limited to white citizens of the State.

Moreover, the affidavit of the director of the school to 
the effect that there was no employment for Negroes in the 
sheet metal field in Shreveport, and the affidavit of John 
Toler in support thereof, confirmed appellees’ contention 
that race was the controlling consideration in the denial of 
their admission.

The bulletin also revealed that with respect to the appel­
lee who applied for admission to the school in order to take 
a barbering course, the reason given for the denial of his 
admission was not based on fact. No such qualification, as 
Mr. Moore, the director, alleged this appellee failed to meet, 
appears in the official bulletin of the Shreveport Trade 
School (R. 24, 36).



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Finally, appellants admitted by the affidavits of the direc­
tor of the school that appellees had applied for admission 
to certain courses (R. 23, 24, 42, 43) and in no case did 
appellants, in their opposition affidavits, challenge the 
qualifications of the applicants for admission.

There was, therefore, no genuine issue as to any material 
fact and appellees were entitled to judgment as a matter of 
law. Board of Supervisors of L. S.U.  v. Fleming, 265 F. 
2d 736 (5th Cir. 1959); Ludley v. Board of Supervisors of 
L. S. V.  (E. D. La. 1957), 150 F. Supp. 900, aff’d 252 F. 2d 
372, cert. den. 358 U. S. 814; Tureaud v. Board of Super­
visors of L. S. V., 116 F. Supp. 248 (E. D. La. 1958), rev’d 
207 F. 2d 807 (5th Cir. 1953), vacated 347 IT. S. 971 (1954), 
225 F. 2d 434 (5th Cir. 1955), 228 F. 2d 859; Wilson v. Board 
of Supervisors of L. S. U 92 F. Supp. 986 (E. D. La. 1950), 
aff’d 340 IT. S. 909.

CONCLUSION

For all of the foregoing reasons, the judgment of the 
court below should be affirmed.

Respectfully submitted,

A. P. T ureaud  
A. M. T ru d e au , Jb.
E rnest N. M ortal

1821 Orleans Avenue 
New Orleans 16, Louisiana

C o n stan ce  B a k e r  M o tley  
T hurgood  M a r sh a ll  

10 Columbus Circle 
New York 19, N. Y. .

Attorneys for Appellees



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