Opinion of the Court

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Plaintifis 

CIVIL ACTION NO. 

Defendants. 

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{(April-17,—-1972) 

Before COLEMAN, Circuit Judge, and XEADY and 

SMITH, District Judges. 

OPINION OF THE COURT 
Ul bAtitibl .  aibki 

  

COLEMAN, Circuit Judge: 

The Nature of the Case 
I nA rhxAos     

+ This suit, a class action by Negro children 

attending the public schools, is brought through their 

parents as next friends. 

 



  

" 

sippi State Textbook Purchasing Board and the Executive 

Secretary of that Board. 

The gravamen of the complaint is that: 

"Under the laws of the State 

of ls defendants select, 
purchs distribute, loan and oth- 
erwise pir spose of textbooks, in be- 
half of the State of Miss issippi, 
for the use of children enrolled in 
the elementary and secondary schools 

in the State of Mississippi (Miss. 
Code Anno. Sections 6634 et seq.) 
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"Beginning with the 1964-65 
school term * * *% * when the first 

i school districts in Mississippi were 
required to integrate under freedom 
of choice #* * * * and through the 
present, numerous private schools 
and academies have been either forme 
ed or enlarged, which schools have 
established as their objective and/ 

; or have had the effect of a¥fording 

. the white children of the State of 
Mississippi racially segregated ele- 
mentary and Secondary schools as an 

alternative to racially integrated 
and otherwise non-discriminatory pub- 

lic schools. 

"The defendants have provided 
these racially segregated schools 

and academies and the students at- 
tending such schools, either through 

Sale or loan, textbooks purchased and 

owned by the State of Mississippi and 
have thereby provided state aid and en- 
couragement to racially segregated edu- 
cation and have thereby impeded the es- 
tablishment of racially integrated pub-~ 
lic schools in violation of plaintiffs’ 

rights assured and protected by the 

Fourteenth Amendment to the Constitu- 
tion of the United States." 

 



  

Plaintiffs thus assert that defendants’ lend- 

ing of state-owned textbooks to children now attending 

racially segregated private schools situated within the 

State of Mississippi is violative of plaintiffs' Four=- 

teenth Amendment rights and constitutes illegal state 

aid to racially segregated education. Plaintiffs em- 

phasize that they do not challenge the right of stu- 

"dents attending private schools, either sectarian or 

nonsectarian, to receive state-owned textbooks so long 

as the schools they attend were not organized in the 

wake of public school desegregation and do not engage 

in racially discriminatory admission practices, but as 

to students attending schools of the latter category, 

their claim is that the state may not validly provide 

them with free textbooks, 

Y Plaintiffs pray an order requiring an account- 

ing by defendants of all textbooks purchased from the 

State of Mississippi or on loan from the State of Mis- 

sissippi to private schools and students enrolled there- 

in; that defendants be directed immediately to recall, 

and otherwise assure the return to state depositories, 

of all textbooks used by students in attendance at 

private schools which have already been adjudged by 

other United States Courts as racially segregated and 

which have been formed for the purpose of providing 

white students with an alternative to racially inte=- 

grated, non-discriminatory public schools; that the pi 

defendants be enjoined from further sale or distri- 

 



  

bution of such textbooks to any private schools or stu- 

dents enrolled therein without first notifying plain- 

tiffs and obtaining court approval; and that defendants 

be enjoined from distributing state-owned textbooks to 

any private schools or students enrolled therein with- 

out first establishing that the school is racially in- 

tegrated and has not had the effect of frustrating or 

impeding the establishment of racially integrated pub- 

lic schools. 

Subject matter jurisdiction, not contested, is 

predicated upon 42 U,S.C., §1983 and 28 U.S.C., §1343(3) 

and (4). 

YX 

Three-Judge Court Jurisdiction 
  

Subsequent to the original filing of the com- 

laint, plaintiffs submitted the following motion: Pp » 

"plaintiffs, pursuant to 

Jackson v. Choate, 404 F.2d 910 

{5th Cir ., 1068), respectfully 
move this Court to certify this 
cause to the Chief Judge of the 

United States Court of Appeals 
for the Fifth Circuit to convene 
a Three-~Judge District Court pur-~ 

suant to 28 U.8.C., §52281, 2284. 

"We further move that the 

Three-Judge District Court there- 
after determine whether this ac- 

tion should be litigated before 

it or a single district court 

judge." 

In response thereto, the managing District pi 

Judge concluded that the complaint called for the con- 

vening of a Three-Judge District Court in accordance 

 



  

with 28 U.8.0C §2284, and requested the Chief Jud Wo We p 

of the Circuit to constitute a Court as contemplated 

by the statute. Thereafter, the Court was constituted. 

The present views of the plaintiffs to the con 

trary notwithstanding, the Court is of the opinion that 

sitting as a Three-~Judge District Court, it has juris- 

diction of this controversy. 

Title 28, U.S.C., §2281, provides: 

"An interlocutory or perma- 

nent injunction restraining the 
enforcement, operation or execu- 
tion of any State statute by re- 
straining the action of any of- 
ficer of such State in the en- 

forcement or execution of such 
statute or of an order made by 

an administrative board or com- 
mission acting under State stat- 

utes, shall not be granted by any 
district court or judge thereof 

upon the ground of the constitu- 
tionality of such statute unless 
the application therefor is heard 
and determined by a district court 
of three judges under §2284." 

To authorize the convention of a Three-Judge 

Court the controversy must possess the following char- 

acteristics: (1) the constitutional question raised 

must be substantial; (2) a state statute or admini- 

strative order of general state-wide application must 

be assailed as unconstitutional; (3) a state officer 

must be party defendant; and (4) injunctive relief 

must be sought. Idlewild Bon Voyage Liquor Corpora- 

tion v. Bpstein, 19062, 370 U.8. 713, 82 8.Ct. 1294, 

- 

y 

 



  

8 L.Ed.2d 794; Hall v, Garson, 5 Cir., 1970, 430 F.2d 

430, 442-443; Moore's Federal Practice, 1 A., §0.2035; 

C. A. Wright, Law of Federal Courts, §50.-at 189 (2nd 

Ed. 1970). 

This case meets these tests. 

An injunction is sought against the enforce=- 

ment by state officials of a state statute §§6634 
) J 

1/ 
et seq., Mississippi Code, 19427 and Board regula- 

2/ 
tions.” The contention is that although the statute 

requires the free lending of textbooks to all educable 
  

children, it should not include those attending private 
  

racially segregated schools. Plaintiffs say that they 

do not object to other educable children receiving the 

books. Thus it is argued that they are not claiming 

the statute to be altogether anconetitut Yona) but they 

are only challenging the constitutionality of its ap- 

plication. Since, however, the statute specifically 

provides that all children shall receive the books and 

this Court has no authority to amend that language, we 

must consider the complaint as an attack on the statute 

as written. Our jurisdiction, of course, extends to a 

consideration of whether a facially valid statute has 

been unconstitutionally applied by officers in charge 

of its enforcement. 

As to substantiality, see Ex Parte Poresky, 

1933, 290 U.S. 30, 32; 54 S.Ct. 3, 4: 78 L.Ed. 152, ; 

153; Local Union No. 300, Amalgamated Meat Cutters & 4 

Butchers Workmen of North America, AFL-CIO v. McCulloch, 

5 Cir., 1970, 428 F.2d 396, 399-400. 

 



  

Contrary to the position taken by defendants, 

we hold that these plaintiffs, black children who are 

attending the public schools, have standing to prose- 

cute this complaint, Chance v. Mississippi Textbook 

Rating Board, 1941, 190 Miss. 453, 200 So. 706; Asso~ 

ciation of Data Processing Service Organizations, Inc. 

v. Camp, 1970, 397 U.S. 150; Barlow v. Collins, 1970, 

397 U.S. 159, 

¥I1x 

The Merits 
  

Near the close of the Great Depression, Gov- 

ernor Paul B, Johnson, Sr. on January 16, 1940, deliv- 

ered his Inaugural Address to 2a joint session of the 

Mississippi Areata, He said that 75,000 chil- 

dren in Mississippi were without textbooks, that all 

states surrounding Mississippi gave free textbooks 

to each child in those states, that the failure to 

provide free textbooks to the children of Mississippi 

was "an indictment of our state government', and that 

the State should furnish free textbooks to all edu- 

cable children in the elementary grades. 

The result of this appeal was the enactment 

of Chapter 202 of the General Laws of the State of 

Mississippi of 1940, approved February 16, 1940, now 

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codified as indicated supra, by which a textbook pur 

chasing board was established. The board was cloak- 

3 ed with authority to select, purchase, distribute, 

and care for free textbooks in all schools in the 
enrtmso—   

State, through the first eight grades. 

In his message to the Legislature on January 

| 4/ 
7, 1942, Governor Johnson recommended that the free 

textbook program be extended to high school students. 

This resulted in the enactment of Chapter 152 of the 

General Laws of Mississippi of 1942, approved March 

23, 1942, also codified as above, by which the pro- 

gram was extended to include high school students. 

The program had not long been in existence, 

however, before a state court suit was filed to en- 

join the Textbook Purchasing Board from distributing 

free textbooks to private and sectarian schools. 

‘This was a taxpayers' suit, complaining that text- 

books were about to be requisitioned by and loaned to 

pupils in thirteen private elementary schools, all of 

which were sectarian, and that the issuance of such 

books for the free use of students in sectarian schools 

would be a violation of §208 of the Mississippi Consti- 

tution of 1800. 

Section 208 provides that: 

 



  

igious or other sect 

or sects shall ever control any 
part of the school or other edu- 

cational funds of this state; nor 
~~ } hy 5 Ley ~ oe I YY n we 5 ©) 4 ~3 shall any funds be appropriated 

~y toward the support of any sectar- 

ian school, or to any school ‘that 
at the time of receiving such ap- 

propriation is not conducted as 

a free school." 

In a 5-1 decision, the Supreme Court of Mis- 

sissippi upheld the legality and the constitutionality 

[under §208] of providing free textbooks to students 

in private, sectorian institutions. 

In an opinion written by the late [and we may 

justifiably say, great] Justice Julian P. Alexander, 

Sr., the Mississippi Supreme Court spoke the follow- 

ing: 

"Although the act allows the 

g loaning of such books to pupils in 

properly qualified private elemen- 

tary schools, whether sectarian or 

not, the sectarian character of some 

of the schools whose pupils would be 

loaned school books is vigorously 

stressed in complainant's brief and 

argument, and some alarm is confessed 

by counsel lest this legislation be 

viewed otherwise than as a threat to 

the mutual independence of church and 

state. 
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"The bases for such anxiety are 

founded upon considerations which 

bulked large in the minds and hearts 

of those who founded our republic, 

and who, in order to insure domestic 

tranquility and secure the blessings 

of liberty, established its Consti- 

tution with its restrictions, and the 

flag, which it follows, with its free- 

dom. 

“Freedom of conscience was one of 

the blessings of liberty sought to be 

secured by constitutional separation 

of church and state. These principles 

are historical and fundamental. Yet 

it is quite true that while liberty is 

to be maintained at the price of eternal 

vigilance, such vigilance should include 

within its scope the common welfare of 

those who have the right to view educa- 

tional opportunity as one of the 'bless=- 

ings of liberty’. 

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"There is no requirement that the 

church should be a liability to those 

of its citizenship who are at the same 

time citizens of the state, and entitled 

to privileges and benefits as such. Nor 

- 10 = 

 



  

is there any requirement that the 

state should be godless or should 

ignore the privileges and benefits 

of the church. Indeed, the state 

has made historical acknowledgment 

and daily legislative admission of 

2 mutual dependence one upon the 

other. 

"It is the control of one over 

the other that our Constitution for- 

bids. Sections 18, 208. The recog- 

nition by each of the isolation and 

influence of the other remains as 

one of the duties and liberties, re- 

spectively, of the individual Citi- 

zen. It is not amiss to observe 

that by too many of our citizens 

the political separation of church 

and state is misconstrued as indi- 

cating an incompatibility between 

their respective manifestations, re- 

ligion and politics. The state has 

a duty to respect the independent 

sovereignty of the church as such; 

it has also the duty to exercise 

vigilance to discharge its obliga- 

tion to those who, although subject 

Fahy Ti 

 



  
TS —— es 

to 1ts control, are also objects of 

its bounty and care, and who, regard- 

less of any other affiliation are pri- 

marily wards of the state. The consti- 

tutional barrier which protects each 

against invasion by the other must not 

be so high that the state in discharg- 

ing its obligation parens patriae, can- 

not surmount distinctions which, view 

ing the citizen as a component unit 

of the state, become irrelevant. 

"The religion to which children 

of school age adhere is not subject 

to control by the state; but the chil 

dren themselves are subject ‘to its 

control. If the pupil may fulfil its 

duty to the state by attending a pa- 

rochial school it is difficult to see 

why the state may not fulfil its duty 

to the pupil by encouraging it 'by all 

suitable means'. The state is under 

duty to ignore the child's creed, but 

not its need. It cannot control what 

one child may think, but it can and 

must do all it can to Leach the child 

how to think. The state which allows 

 



  
ARE —— et ne 

the pupil to subscribe to any reli- 

gious creed should not, because of 

his exercise of this right, proscribe 

him from benefits common to all. 

"If the safety of the republic 

is to remain the supreme law, the 

safety and welfare of the citizens 

who compose it must remain supreme. 

In obedience to this duty the state 

may and should supply the child with 

protection against physical disease 

and danger, and under our Constitu- 

tion must encourage the promotion 

of intellectual and moral improve- 

ment. Such benefits once made avail- 

able by the state, may be demanded 

by the citizen or by any group of 

citizens. 

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"Calm reason must not be stam- 

peded by random cries of church or 

state or sectarian control, or by 

the din from the conflict of cate- 

chism and dogmatism. .A wholesome 

sanity must keep us immune to the 

disabling ptomaine of prejudice. 

 



  
BT A ARI SAPP th A 

If throughout the statute there are 

words which arrest the attention of 

over-sensitized suspicion and are 

seen by a jaundiced eye as symptoms 

of secular control, one may regain 

composure by viewing the state's 

book depository as a great public 

library of books available to all, 

which sells any books to anybody, 

and which, subject to reasonable 

regulation, allows the free use 

thereof to any child in any school. 

Cf. ch. 289, Laws 1938. 

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"We are of the opinion that the 

appropriation in chapter 18 of the 

Laws of 1940 was not a use or diver- 

sion of school or other educational 

funds as contemplated by section 208, 

Mississippi Constitution of 1890, nor 

did it become a part thereof. The 

appropriation for schools is entire- 

ly separate, ch. 17, Acts of 1940. 

The use of the textbook fund consti- 

tutes no charge against any public 

school funds, properly so called, nor 

against any trust funds available for 

particular schools or educational pur- 

 



  

poses. Such funds are not appropri- 

ated 'toward the support of any sec- 

tarian school’, nor does the furnishe 

ing of such books to the pupils in 

properly qualified private schools 

constitute a pledging or loaning of 

the credit of the state 'in aid of 

any person, association, or corpora- 

tion' in contravention of section 

258 thereof. The books belong to, 

and are controlled by, the state; 

they are merely loaned to the indi- 

vidual pupil therein designated; 

their preservation is fostered by 

exaction of suitable compensation 

for their loss or damage; the duty 

of protection through fumigation 

against contagion by use is assumed 

by the state. 

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"Nor is the loaning of such books 

under such circumstances to the indi- 

vidual pupils a direct or indirect aid 

to the respective schools which they 

attend, although school attendance is 

compulsory. Such pupil is free to at- 

tend a proper public or private school, 

sectarian or otherwise." 

 



  

The judgment of the Chancery Court of Hinds 

County, Mississippi, denying the injunction, was af 

firmed. Chance v. Mississippi Textbook Rating Board, 

1941, 190 Miss. 453, 200 So. 706. 

This 1941 decision of the Supreme Court of 

Mississippi seems generally to be in accord with one 

delivered twenty-seven years later by the Supreme 

Court of the United States in Board of Education of 

Central School District No. 1 v. Allen, 1968, 392 U. 

S. 236, 88 S.Ct. 1923, 20 L.Ed.Z2d 1060. 

In that case a New York statute requiring 

school districts to purchase and loan textbooks To 

students enrolled in parochial as well as in public 

and private schools was under constitutional attack. 

The Supreme Court held that the New York statute did 

not constitute a 'law respecting an establishment of 

religion or prohibiting the free exercise thereof" in 

conflict with the First and Fourteenth Amendments to 

.the Constitution of the United States. We quote from 

the opinion in Allen, supra: 

"Everson v. Board of Education, 

330 y.8. 1,67 5.0t. 504, '91 L.2d, 

711 (1947), is the case decided by 

this Court that is most nearly in 

point for today's problem. ‘New 

Jersey reimbursed parents for ex- 

penses incurred in busing their chil- 

dren to parochial schools. The Court 

“15 

 



  
A, 

stated that the Establishment Clause 

bars a State from passing ‘laws which 

aid one religion, aid all religions, 

or prefer one religion over another’, 

and bars, too, any 'tax in any amount, 

large or small * * * levied to support 

any religious activities or institu- 

tions, whatever they may be called, 

or whatever form they may adopt to 

teach or practice religion'. 330 U.S., 

at 15-16, 67 S.Ct., at 411. Neverthe- 

less, said the Court, the Establish- 

ment Clause does not prevent a State 

“from extending the benefits of state 

law to all citizens without regard 

for their religious affiliation and 

does not prohibit 'New Jersey from 

spending tax-raised funds to pay the 

bus fares of parochial school pupils 

as a part of a general program under 

which it pays the fares of pupils at- 

tending public and other schools’. 

The statute was held to be valid even 

though one of its results was that 

'children are helped £5 church schools’ 

and 'some of the children might not be 

sent to the church schools if the pare 

ents were compelled to pay their chil- 

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dren's bus fares out of their own 

pockets!, 330.U.8., at 17,:67 8S. 

Ct., at 512. As with public pro- 

vision of police and fire protec 

and sidewalks, payment of bus fares 

was of some value to the religious 

school, but was nevertheless not 

such support of a religious insti- 

tution as to be a prohibited es- 

tablishment of religion within the 

meaning of the First Amendment. 

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"The express purpose of §701 

was stated by the New York Legis~ 

lature to be furtherance of the edu- 

cational opportunities available to 

the young. Appellants have shown us 

nothing about the necessary effects 

of the statute that is contrary to 

its stated purpose. The law merely 
  

makes available to all children the 
  

  

es benefits of a general program to lend 
  

school books free of charge. Books 
  

  

are furnished at the request of the 
  

  

pupil and ownership remains, at least 

technically, in the State, Thus no r! 
  

  

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funds or books arc furnished toe Phim 
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Fa 

rochial schools, and the financial 
        

  

  benefit is to parents and children, 
AAR AAT SI WE MA A VON © $n Es I 

not to schools, Perhaps iree books 
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make it more likely that some chil 

dren choose to attend a sectarian 

school, but that was true of the 

state-paid bus fares in Everson 

  

and does not alone demonstrate an 

unconstitutional degree of support 

for a religious institution." [Em- 

phasis ours]. 

To be specific, the racial identity of the 

child had nothing to do with the original enactment 

of the Mississippi statute nor has it had anything 

to do- with the receipt of a free textbook throughout 

a period of more than thirty years. Every Mississippi 

school pupil, before and since 1954, the date of Brown 

  

v. Board of Education, whether enrolled in public, pri- 

iS 

  

vate, or parochial schools, of whatever race, has re- 

ceived ‘the free textbooks without question or impedi- 

ment. 

Plaintiffs say, however, that furnishing the 

textbooks free to those students who now choose 10 

attend racially segregated private schools, establish=- 

ed in Mississippi since 1964 for the purpose of afford=- 

ing a child an opportunity of not attending integrated 

public schools, is unconstitutional because it conflicts 

 



  

rp 

with the "affirmative duty to take whatever steps 

might be necessary to convert to a unitary system in 

which racial discrimination would be eliminated root 

and branch", Green v. County School Board of New Kent 

County, 1958, 391 U.S., at 437. 

In line with this position plaintiffs say 

(Brief, p. 25) "We challenge this statute to the ex- 

tent that it requires or authorizes the distribution 

of state-owned textbooks to schools formed for the pur- 

pose of having the effect of providing whites with an 

alternative to public integrated education." 

The evidence establishes that 34,000 students 

are presently receiving state-owned textbooks while at- 

tending 107-all-white, nonsectarian private schools 

which have been formed throughout the ‘state since the 

inception of public school sentation This num 

ber is to be compared with 534,500 students in more 

than 1,000 public schools and 12,100 students in de- 

segregated parochial schools who are receiving free 

textbooks. It is plain, however, that the books have 

not been issued to the schools but to the students. 

As in the case of public schools, private and sec=- 

tarian school authorities are held responsible for 

the books as a matter of orderly administration. The 

statute does not authorize the distribution of the 

books to schools, only to pupils. 

-: 90 iw 

  

 



  

We are thus brought to the point of determin- 

ing whether the state's furnishing of free textbooks to 

students attending racially segregated schools is a 

support of such schools, for whose promotion and en- 

couragement public funds, of course, may not be consti- 

tutionally provided. In terms of the unequivocal pro- 

hibition contained in the First Amendment, made appli- 

cable to the states by the Fourteenth Amendment, the 

| question has been clearly settled. Free textbooks to 

| the students is not a financial benefit to the church- 

related schools, as held in Allen, and is not a direct 

or an indirect aid to such schools, as held in Chance. 

In the recent case of Lemon v. Kurtzman, 403 U.S. 603, 

29 L.Ed.2d7745, the United States Supreme Court con- 

tinued to recognize the distinction between permis- 

sible state aid to the student and impermissible state 

aid to the church-related school, and invalidated a 

Pennsylvania statute which undertook to provide fi- 

nancial aid directly to church-related schools. 

The essential inquiry, therefore, is whether 

we should apply a more stringent standard for deter- 

mining what constitutes state aid to a school in the 

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context of the Fourteenth Amendment's ban against de- 

nial of the equal protection of the law than the Su- 

preme Court has applied in First Amendment cases. On 

the record made before us we perceive neither the logic 

nor the necessity for applying any different test to a Hf 

universally free school textbook program. 

oY 

Ee a aman grt -— i ——————————— “ - ————— I ——————— 
TEA CRA THN HE TER SIA 

 



  

Plaintiffs rely primarily upon Coffey v. State 

Educational Finance Commission, 296 F. Supp. 1389 (S.D., 

Miss., 1969); Poindexter v, Louisiana Financial Assis- 

tance Commission, 275 F. Supp. 833 (E.D., La., 1967); 

Griffin v. State Board of Education, 296 F, Supp. 1178 

(E.D., Va,, 1969); and Green v. Kennedy, 309 F. Supp. 

1127 (D.C., 1970), appeals dismissed for want of juris- 

diction, sub nom Cannon Vv. Green, 398 U. S. 956 (1970), 

and Coit v. Green, 400 U. S. 986 (1971); continued as 

Green v,. Connally, 330 F. Supp. 1150 (D.C., 1971); af- 

firmed sub nom Coit v. Green, U.S. _, 92 S.Ct. 

564 (1971). These cases, which are clearly distin- 

guishable on their facts, are not in point on the pres- 

ent issue; 

In Coffey it was held that state tuition grants 

Jv to students attending private segregated schools, first 

begun in 1964, and which in three years time was follow- 

ed by an increase in private nonsectarian schools from 

three to forty eight in number, were "critical to most 

of the schools", 296 F. Supp. at 1392. The Court fur- 

ther found "that the tuition grants have fostered the 

creation of private segregated schools * * * * encour- 

ages, facilitates, and supports the establishment of a 

1
 

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system of private schools operated on a racially segre- 

gated basis as an alternative available to white stu- 

dents seeking to avoid desegregated schools * ¥ ¥ x 

and that grants "tend in a determinative degree to yl 

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2 
4 

} 
i 
i 

" AR 86 TIO DORIS A 

perpetuate segregation' ", Therefore, the grants, and 

the Mississippi statute which authorized them, were 

struck down as violative of the equal protection clause 

of the Fourteenth Amendment. 

The Court further pointed out: 

"There is no claim in this case 
that the Constitution requires all 
children to attend public schools, or 
that a private citizen may not select 
a private segregated school for his 

child because of a desire to keep the 

child from being educated with chil- 
dren of a different race. What is in- 
volved here are legislative enactments 
which 'will significantly encourage 
and involve the State in private dis- 

criminations'. Reitman v. Mulkey, 387 

uv. 8. 389, 38), 87. 8.Ct. 1627, 1634, 

18 L.Ed.2d 830, 838 (1967)." 

Similar tuition grant cases from other states 

are collated in Footnote 1 to Coffey, 296 F. Supp., at 

1390, and will not be cited here. 

Similarly in Poindexter a statute providing 
  

for tuition grants to pupils attending private segre- 

gated schools was invalidated. The Court held that 

any affirmative and purposeful state aid promoting pri- 
  

  

vate discrimination violates the equal protection clause, 

a state cannot legitimately be just a little bit dis- 

criminatory, and that the object or purpose of legis- 

lation is to be determined by its natural and reason- 

able effect. In speaking for the Court, Judge Wisdom 

wrote: 

. "% % % any aid to segregated 
schools that is the product of the 

State's purposeful policy of fos- 
tering segregated schools and has 

BE ——..... db - — — a——— . rg pp AAA ——— 

 



  
a. 

the effect of encouraging discrimi- 
nation 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 to- 
ward charitable and educational in- 
stitutions)." 275 F. Supp. 854. 

The United States Supreme Court affirmed, 389 

v. S. 571, 88 s.Ct. 693, 19 L.Ed.2d 780 (1968). 

The result of this decision was that Louisiana 

enacted a revised tuition grant law. This statute, too, 

was invalidated by a subsequent Three-Judge Court. 

Poindexter v. Louisiana Financial Assistance Commission, 

296 FF, Supp. 686. Judge Wisdom again wrote: 

"The free lunches and text- 
books Louisiana provides all chil- 

—dren-in public and private schools 
are the fruits of a benevolent ra- 
cially neutral policy." : 

Again the United States Supreme Court affirmed, 

303 U. 8. 17 (1988). 

In Griffin, a three-judge district court invali- 

dated Virginia's statute allowing tuition grants to chil=- 

dren attending segregated schools. Expressly adopting 

Judge Wisdom's reasoning in Poindexter, the Court held 
  

the statute impermissibly provided for payments to chile 

dren who may expend such funds for a segregated class- 

room, thereby 'giving life to an educational forum de- 

cried by the Federal Constitution." 296 F. Supp at 

1181. 

The tuition grant cases, which emphasize the 

financial support thereby afforded to educational in- 

stitutions, rest upon wholly different considerations 

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from the case sub judice. Here we are concerned only 

with the act of furnishing a state-owned textbook to 

the student. 

Finally the Green case, upon which plaintiffs 

place great reliance, involved the grant of federal tax 

exempt status and deductibility of contributions to pri- 

vate segregated schools in Mississippi. The Green Court 
  

emphasized that, apart from tax exemption to the schools, 

the deductions from income taxes by individuals and cor=- 

porations who make contributions to racially segregated 

private schools amounted to substantial and significant 

governmental support for the segregated private school 

pattern. Thus the exemptions were held invalid as 

against federal public policy without reaching consti- 

tutional issues, | 

We find no federal decision which has sugges t= 

ed the invalidation of the beneficient policy of a state 

to furnish textbooks to all of the educable children 

within its borders. To the contrary, under settled 

case law, the state's legitimate interest in the edu- 

cation of its youth, in whatever school the student or 

his parents may select, is a proper and adequate basis 

. upon which the state may administer its free textbook 

program, 

It has already been demonstrated that in Mis- 

sissippi the free textbook program began without ra- ; 

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cial motivation and the books have long been uniform- 

ly supplied to all children alike, regardless of race, 

OB 

  CARRE RWI AT 
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in both public and private schools, Only one pre- 

requisite must be satisfied for the student who at- 

tends a private school, i.e., the school shall main- 

tain educational standards equivalent to those estab- 

lished by the State Department of Education for public 

| schools. In fact, plaintiffs concede that Mississippi 

has historically maintained a benevolent and racially 

neutral policy in the adninigiration of its state~ 

owned textbook program. 

We find it wholly illogical to require an 

alteration. in the state's textbook program simply be- 

cause of the advent of more private schools following 

the desegregation of the public school system. De- 

priving any segment of school children of state-owned 

textbooks at this point in time is not necessary for 

1 3 the establishment or maintenance of state-wide uni- 

| tary schools. Indeed, the public schools which plain- 

tiffs acknowledge were fully established as unitary 

schools throughout the state no later than 1970-71, 

continue to attract 90% of the state's educable chil- 

dren. There is no showing that any child enrolled in 

private school, if deprived of free textbooks, would 

withdraw from private school and subsequently enroll 

in the public schools, AoW unitary. We are mindful 

of the fact that children are free to attend private 

schools of their choice, for whatever reason satis- 

factory to them and to their parents, See the con- nr 

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S a am aie a i i 

 



  

curring opinion of Mr. Justice Brennan in Abington 

School District v., Schempp, 374 U. S., at 242 (1963). 

There could be considerable doubt about the 

constitutionality, under the equal protection clause, 

‘of a program which would provide free books to some 

children while denying them to others. Providing 

schools to some children and denying others access 

to those schools solely for racial reasons was held 

invalid in Brown v, Board of Education, Supra, 

Plaintiffs say that furnishing the free texte 

books to pupils in private schools encourages atten- 

dance at such ‘institutions. This, of course, is con- 

jectural, as there is no substantial proof on that 

score. It occurs to us, however, that if encourage- 

ment alone is a sufficient test and if impermissible 

encouragement necessarily follows iron the issuance 

of the books and subsequent attendance at a particu- 

lar school, then the books may not be issued to those 

attending private sectarian schools (something which 

the Supreme Court has thus far declined to invalidate). 

Since the issuance of free textbooks to stu- 

dents attending private schools has failed to defeat 

the establishment of a state-wide unitary school sys- 

tem in Mississippi, and since plaintiffs are them- 

selves receiving their free textbooks, there is serious 

question as to whether plaintiffs are threatened with 

the irreparable injury which is prerequisite to in- pi 

“Dou 

  

  

  

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Junctive relief. Fedoral Judicial power is to be ex- 

ercised’ to strike down legislation, whether state or 

federal, only if a plaintiff is himself immediately 

harmed, or immediately threatened with harm, by the 

challenged action, Poe v. Ullman, 1961, 367'U. S. 497, 

504. i 

Lurking beneath all this is the prineivie 

that two wrongs do not make a right. Punitive action 

against the children now receiving free textbooks in 

the private schools will do nothing to cure acts com- 

mitted by. others (not children) in the years now dead 

and gone. IR . 

We hold that the free textbook program and 

the Mississippi statutes authorizing it, for the con- 

sideration herein recited, are not constitutionally 

{i invalid. 

This opinion constitutes both our findings of 

Vv fact and conclusions of law. 

x The complaint is dismissed and judgment will 
t 

be ‘entered accordingly. 

  

  

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FOOTNOTE NO, 1 
  

Section 6641(1) (a) Mississippi Code of 1942: 

"The board shall have the power, and is here- 
by authorized: (a) To promulgate rules and regulations 
for the purchase, care; use, disposal, distribution, 
and accounting for all books to be furnished under the 

terms of this Act and to promulgate such other rules 
as may be necessary to the proper administration of 

this Act." : 

Section 6656 Mississippi Code of 1942: 

"Plan. 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 provided 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 education- 
al standards equivalent to the standards established 
by the state department of education for-the state 
schools. 

FOOTNOTE NO. 2 
  

The regulation for distribution of state-owned 
textbooks from 1940 through 1970 provided as follows: 

"For the distribution of free textbooks the 
local control will be placed in the hands of the Coun=- 
ty Superintendent of Education. All requisitions for 
books shall be made through him and all shipments of 
books shall be invoiced through him. At his discre- 

tion he may set up certain regulations governing the 
distribution of books within the county, such regula- 
tions not to conflict with the regulations adopted by 
the State Textbook Board or provisions of the Free Texte 
book Act." : 

The above regulation was revised on October 14, 
1970, to read as follows: 

"Public Schools. The administration of the 
textbook program in the public schools shall be the ¥ 
responsibility of the administrative heads of the coun- 
ty units, consolidated districts, and municipal separate 
districts set up by the Legislature, All textbook trans- 
actions between the public schools and the State shall be 

  

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carried on through them, Xt shall be the duty of these 
local custodians to render all reports required by the 
State; to place orders for textbooks for the pupils in 

thelr schools; . . . 

"Private Schools. Private and parochial school 
programs shall be the responsibility of the State Text- 
book Board. All textbook transactions will be carried 

out between the Board and the administrative heads of 
these schools. Their duties shall be the same as out- 

lined above for public schools." 

  

FOOTNOTE NO, 3 
  

Mississippi House Journal, 1940, page 42. 

  ak ae —— RP 

FOOTNOTE NO, 4 
  

Mississippi House Journal, 1942, page 52. 

FOOTNOTE NO. 5 
  

An additional 8,000 students are enrolled in 
41 private, nonsectarian schools which do not partici- 
pate in the state textbook program. [||8f06decf-6b2f-4a39-a79f-e43efe296bdf||]