Orleans Parish School Board v. Bush Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1956

IN THE

No.

ORLEANS PARISH SCHOOL BOARD,
Petitioner,

versus

EARL BENJAMIN BUSH, ET AL.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT.

GERARD A. RAULT,
American Bank Building,

New Orleans, Louisiana;

W. SCOTT WILKINSON,
Beck Building,

Shreveport, Louisiana,
Attorneys for Petitioner.

M ontgom ery & Co., “ The B rief Specialists” , 430 Chartres St., N. O., La. «^|||^»



SUBJECT INDEX.
Page

OPINIONS B E L O W ....................................................  1

JURISDICTION ...........................................................  2

QUESTIONS PRESENTED .................................... 2

STATUTES INVOLVED ..........................................  3

S T A T E M E N T ...............................................................  4

REASONS FOR GRANTING W R IT .......................  8

CONCLUSION .............................................................  15

APPENDIX A—
Statutes .................................................................  17

APPENDIX B—
Opinions and Judgment B elow ...........................  26

AUTHORITIES CITED.
Cases:
Brown v. Board of Education of Topeka, 349 U. S.

294, 75 S. Ct. 753, 98 L. Ed. 873 ...................3 ,6 ,14

California Water Service Co. v. City of Redding,
304 U. S. 252, 82 L. Ed. 1323 ...........................  12

Carson v. Board of Education, 227 F. (2d) 789 (C.
C. A., 4th, 1955) ................................................  11

Carson v. Warlick, 25 Law Week 2252, (C. C. A.,
4th, 1957) ............................................................. 11

Cumberland T. & T. Co. v. La. Public Service
Commission, 260 U. S. 212, 67 L. Ed. 217 . . .  12

Ex parte Poresky, 290 U. S. 30, 75 L. Ed. 152 . . . .  12

Ex parte Young, 209 U. S. 123 ...............................  13



n

Cases— (Continued) : Page
George R. and B. Co. v. Redwine, 342 U. S. 299, 72

S. Ct. 321 ............................................................  13

Gilchrist v. Interborough R. T. Co., 279 U. S. 159,
73 L. Ed. 652, 49 S. Ct. 282 (1928) ............... 10

Gully v. Interstate Natural Gas Co., 292 U. S. 16,
78 L. Ed. 1088 ..................................................... 12

Highland Farms Dairy v. Agnew, 300 U. S. 608, 57
S. Ct. 549, 81 L. Ed. 835 (1937) .....................  10

Hoog v. Board of Trustees of Sumter School Dis­
trict No. 2, 332 F. (2d) 626 (C. C. A., 4th,
1956), cert, den., 25 Law Week 3 1 1 5 ............... 11

Larson v. Domestic and Foreign Commerce Corp.,
337 U. S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 
(1949) .....................................................................  13

Levering Co. v. Morrin, 289 U. S. 103, 105-6, 77 L.
Ed. 1062, 1064-5 ...............   12

Oklahoma Gas & Electric Co. v. Oklahoma Baking
Co., 292 U. S. 386, 78 L. Ed. 1 3 1 8 ................... 12

Orleans Parish School Board v. Bush, 76 S. Ct. 854
(1956) .....................................................................  8

Phillips v. United States, 312 U. S. 246, 251-253,
85 L. Ed. 800, 805-6 ............................................  12

Porter v. The Investors Syndicate, 286 U. S. 461,
76 L. Ed. 1226, 52 S. Ct. 617 (1931) ..............  10

Reynolds v. Stockton, 140 U. S. 254, 11 S. Ct. 773,
35 L. Ed. 464 (1891) .......................................... 14

Rock Island Co. v. U. S., 254 U. S. 141, 65 L. Ed.
188, 41 S. Ct. 55 (1920) .................................... 10



m

Cases— (Continued): Page
Stratton v. St. Louis Swn. Ry. Co., 282 U. S. 10,

14, 75 L. Ed. 135, 137 ..........................................  12

Vandalia R. Co. v. Public Service Co., 242 U. S. 225,
37 S. Ct. 93, 61 L. Ed. 276 (1916) ............... 10

Western Pacific Ry. Corp. v. Western Pacific Ry.
Co., 345 U. S. 247, 97 L. Ed. 983, 73 S. Ct.
656 (1953) .............................................................  8

Statutes:
28 U. S. C. 46 (c) ......................................................... 2, 9

28 U. S. C., Section 1254 (1) .................................... 2

28 U. S. C., Section 2281 ............................................3, 6,12

28 U. S. C., Section 46, 62 Stat. 968 .........................  3

La. Revised Statutes of 1950, Title 17, Sections 331 
through 334 (Acts of 1954, No. 555, para­
graphs 1 through 5) ............................................  4, 7

L. R. S. 1950, Section 17:81.1 (Acts of 1954, No.
556, paragraph 1) ........................................4 ,7 ,10 ,11

Title 28, U. S. C., Sections 2201 and 2202 ..............  4



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1956

IN THE

No.

ORLEANS PARISH SCHOOL BOARD,
Petitioner,

versus

EARL BENJAMIN BUSH, ET AL.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT.

Petitioner, Orleans Parish School Board, prays that 
a writ of certiorari issue to review the judgment of the 
United States Court of Appeals for the Fifth Circuit en­
tered in the above entitled case on March 1, 1957.

CITATIONS TO OPINIONS BELOW.

The per curiam opinion of the United States Dis­
trict Court for the Eastern District of Louisiana sitting as 
a three-judge court is reported in 138 Fed. Supp. 336 and



2

is printed in Appendix “ B” hereto, page 26. The opin­
ion and decree of the United States District Court for the 
Eastern District of Louisiana sitting as a one-judge court, 
Honorable J. Skelly Wright presiding are reported in 138 
Fed. Supp. 337 and are printed in Appendix “ B” hereto, 
page 29. The opinion and decree of the United States 
Court of Appeals for the Fifth Circuit rendered and en­
tered March 1, 1957 are as yet unreported and are printed 
in the Appendix “ B” hereto, page 38.

JURISDICTION.
The judgment of the Court of Appeals was entered 

on March 1, 1957 (Tr. p. 175). Rehearing was denied 
on April 5, 1957 (Tr. p. 198). The jurisdiction of this 
Court is invoked under 28 U. S. C., Section 1254 (1).

QUESTIONS PRESENTED.
1. In an application for rehearing en banc under 

authority of 28 U. S. C. 46 (c) conferring the en banc 
power upon the majority of the active members of the 
Court of Appeals, where no delegation of authority has 
been made, may the panel of three judges hearing the case 
exercise this power or is the power reposed in the entire 
court, the majority thereof controlling?

2. May a court assume the unconstitutional admin­
istration of a state law prior to any application there­
under, thereby relieving the complainant of the necessity 
of exhausting the administrative remedies set forth in said 
statute?

3. May a federal court declare a state statute, 
constitutional on its face, invalid on the assumption that 
it will be unconstitutionally administered?



3

4. May a three-judge district court convened un­
der authority of 28 U. S. C., Section 2281 for the purpose 
of determining the validity of certain provisions of a 
state’s constitution and statutes withdraw from the case 
on the ground that the constitutional provisions and stat­
utes are obviously unconstitutional and therefore no seri­
ous constitutional question is presented, and thereafter a 
one-judge district court issue an opinion declaring said 
constitutional provisions and statutes unconstitutional and 
enjoining their enforcement?

5. Is a suit against a state official acting under 
authority of a state statute alleged to be unconstitutional 
a suit against the state within the meaning of the Eleventh 
Amendment of the United States Constitution where the 
relief prayed for will require affirmative action on the part 
of the state?

6. May a court go beyond the pleadings and de­
clare an entire state statute unconstitutional when only 
one section thereof has been challenged?

7. Is the decision of this Court in Brown v. Board 
of Education of Topeka, 349 U. S. 294, 75 S. Ct. 753, 98 L. 
Ed. 873, controlling in determining the constitutionality of 
the provisions of a state’s constitution and statutes when 
the facts presented are substantially different from the 
facts in cited decision?

STATUTES INVOLVED.
28 U. S. C., Section 46, 62 Stat. 968, providing for 

en banc hearing by Courts of Appeal, printed herein Ap­
pendix “A ”  at page 17. 28 U. S. C., Section 2281, 62
Stat. 968, providing for three-judge court in injunction 
suit against enforcement of state statute, printed herein



4

Appendix “A ” at page 17. Constitution of State of Lou­
isiana, 1921, Article XII, printed herein Appendix “ B” at 
page 18. Louisiana Revised Statutes of 1950, Title 17, 
Section 331 through 334 (Acts of 1954, No. 555, para­
graphs 1 through 5) printed herein Appendix “ B” , page 
19. School Assignment Law of Louisiana, L. R. S. of 
1950, Section 17:81.1 (Acts of 1954, No. 556, paragraph 
1) printed here in Appendix “ B”  at page 20.

STATEMENT.
Respondents herein filed a complaint in the United 

States District Court for the Eastern District of Louisi­
ana on September 5, 1952 against Orleans Parish School 
Board and its acting superintendent, seeking a declaratory 
judgment and permanent injunction under Title 28, U. S. 
C., Sections 2201 and 2202. In this complaint they alleged 
that the Defendant’s (petitioner herein), “policy, custom, 
practice and usage” in refusing to allow Negro children 
to attend elementary and secondary public schools in the 
Parish of Orleans, was in effect a denial of equal facili­
ties for the reason that white children were afforded edu­
cational opportunities, advantages and facilities far su­
perior to those afforded Negroes and therefore was in vio­
lation of the equal protection clause of the Fourteenth 
Amendment; wherefore they prayed that a three-judge 
court be convened to declare Article 12, Section 1 of the 
Louisiana Constitution unconstitutional and permanently 
enjoin petitioner from denying equal facilities to respond­
ents (and all Negroes similarly situated, as this was desig­
nated a class action) because of race. (Tr. pp. 2-16).

Some three years later on August 18, 1955, respond­
ents filed a motion for a temporary injunction restrain­



5

ing petitioner from putting into effect the following ar­
ticle of the Constitution of Louisiana and state statutes: 
Article 12, Section 1 of the Constitution; Sections 81.1 
(School Assignment Law), and 331 (separate operation of 
schools under police power of State) of Title 17 of the 
Louisiana Revised Statutes. (Tr. pp. 16-18). Just two 
days later, August 20, 1955, respondents filed a document 
designated First Amended Complaint, in which they again 
asked that a three-judge court be convened and issue a 
temporary injunction and ultimately a permanent injunc­
tion restraining petitioner from enforcing the aforesaid 
constitutional provision and the aforesaid State Statutes, 
and a declaration of unconstitutionality for all on the 
hypothesis that segregation, even with equal facilities, 
would cause irreparable injury and therefore was viola­
tive of the Fourteenth Amendment. (Tr. pp. 19-30).

Numerous motions to dismiss the complaint were 
filed on behalf of the petitioner, (Tr. pp. 37-39), and the 
State of Louisiana appearing solely for the purpose of ob­
jecting to the jurisdiction of the court filed a motion to dis­
miss for want of jurisdiction. (Tr. pp. 34-36). There­
after, a three-judge court was convened by the chief 
judge of the Court of Appeals for the Fifth Circuit, com­
posed of Honorable Wayne G. Borah, Honorable Herbert 
W. Christenberry, and Honorable J. Skelly Wright (Tr. 
pp. 39, 40). In accordance with the order of this three- 
judge court, on December 2, 1955, oral arguments were 
presented to the court on motions to dismiss and hearing 
had on the application for preliminary injunction, at which 
time petitioner introduced uncontroverted affidavits of a 
large number of accredited medical and educational au­
thorities who were in unanimity in concluding that the



6

Negro would not suffer injury by separate school facili­
ties but indeed three grave consequences would arise if  in­
tegration of the public schools were ordered: (1) Negro
students would sustain lasting psychiatric trauma by in­
tegration; (2) Educational progress of both Negro and 
white students would seriously be impaired; (3) integra­
tion would present a serious moral and health hazard to 
white children.

However, on February 15, 1956, the three-judge 
district court filed a per curiam opinion in which, appar­
ently without passing on the constitutionality of the spe­
cific provisions of the Louisiana State Constitution under 
attack, nor on the constitutionality of the challenged Lou­
isiana Statutes, the court held that under the decision 
of the United States Supreme Court in Brown v. Board 
of Education, 349 U. S. 294, 75 S. Ct. 753, 98 L. Ed. 873 
(1954) any provisions of the Louisiana Constitution or 
Louisiana Statutes which require or permit segregation 
of the races in public schools are invalid. The Court fur­
ther held that therefore no serious constitutional question 
was presented and accordingly a three-judge court, under 
the provisions of 28 U. S. C., Section 2281 was not re­
quired, and the two judges designated to sit with the Dis­
trict Judge withdrew from the case. (Tr. pp. 122-123).

On the same date, February 15, 1956, the United 
States District Court for the Eastern District of Louisi­
ana, New Orleans Division, sitting as a one-judge court, 
the Honorable J. Skelly Wright, presiding, issued an opin­
ion in which all of petitioner’s motions to dismiss, except 
one (allowing dismissal of Superintendent Redmond), were 
overruled and holding the provisions of the Louisiana Con­



stitution, (Article 12, Section 1), and of the Louisiana 
Statutes challenged by respondents, (La. R. S. 17:81.1, 331) 
and some not challenged, (La. R. S. 17:332, 333, 334), un­
constitutional, and issued a decree enjoining petitioner 
from “ requiring or permitting segregation of the races 
in any school under their supervision. . . (Tr. pp. 125- 
131).

Application for a rehearing was filed on the part of 
the State of Louisiana again reiterating their motion to 
dismiss for lack of jurisdiction. (Tr. pp. 133, 134). On 
February 24, 1956, petitioner herein filed a motion for a 
new trial and a rehearing predicated on ten separate al­
legations of error on the part of the District Court. (Tr. 
pp. 135-141). This motion was denied on March 8, 1956 
(Tr. pp. 143, 144).

Subsequent to the denial of the motion for a new 
trial and rehearing, petitioner herein filed a motion for 
leave to file petition for writs of Mandamus and Pro­
hibition and petition for writs of Mandamus and Prohibi­
tion with this Court in which it was prayed that a writ of 
Mandamus issue to the United States District Court for 
the Eastern District of Louisiana, sitting as a three-judge 
court, and to the three judges sitting thereon directing the 
said three-judge court and the individual judges thereon, 
to adjudicate as a three-judge court the issues presented 
by the pleadings herein. It was further prayed that a writ 
of Mandamus issue to the United States District Court 
for the Eastern District of Louisiana, sitting as a one- 
judge court, directing said judge to expunge from the rec­
ord the opinion of March 8, 1956, holding certain pro­
visions of the Louisiana State Constitution and Statutes 
of the State of Louisiana unconstitutional and the de­



8

cree of the same date enjoining and restraining appellants 
herein. And last it was prayed that a writ of Prohibition 
issue to the judge of the District Court prohibiting him 
from taking any further action in this cause unless sitting 
as one of the judges of the duly convened three-judge 
district court.

The motion for leave to file these petitions was de­
nied by this Court in a memorandum opinion on May 28, 
1956. See Orleans Parish School Board v. Bush, 76 S. Ct. 
854 (1956).

On April 5, 1956 petitioner filed appeal with the 
United States Court of Appeals for the Fifth Circuit. 
After the submission of briefs and oral argument Circuit 
Judges Rivers, Tuttle and Brown on March 1, 1957 issued 
their opinion and entered judgment affirming the decision 
of the District Court (see Tr. pp. 154 and 175 and appen­
dix hereto). Thereafter on March 23, 1957 petitioner 
filed a petition for rehearing and on the same date filed a 
Suggestion and Request for En Banc Consideration of Ap­
plication for Rehearing and for En Banc Rehearing.

On April 5, 1957 the panel of circuit judges who 
originally heard the case entered an order denying the pe­
tition for rehearing (Tr. p. 198). No reference was made 
to the suggestion for en banc consideration of the petition 
for rehearing.

REASONS FOR GRANTING WRIT.
1. This Court, in Western Pacific Ry. Corp. v. 

Western Pacific Ry. Co., 345 U. S. 247, 97 L. Ed. 983, 73 
S. Ct. 656 (1953) held as follows:

“ It is essential, of course, that a circuit court, and 
the litigants who appear before it, understand the



9

practice— whatever it may be—-whereby the court 
convenes itself en banc. In promulgating the rules 
governing that procedure the court should recognize 
the full scope of its powers under § 46 (c ).”

However the Court of Appeals for the Fifth Circuit has 
promulgated no rules or regulations governing the proce­
dure of the court in the exercise of its en banc powers 
under 28 U. S. C. 46 (c). Admittedly had it promulgated 
such regulations the court could have delegated to a panel 
of judges constituting a minority of the active members 
of the court the right to determine whether or not a mat­
ter should be heard by the court en banc. However, in the 
absence of such regulations it would appear from the prin­
ciples laid down by this Court in the above cited case and 
from the wording of the statute itself that a suggestion 
for en banc consideration would have to be determined 
by the majority of the active members of a circuit. In the 
present instance it would appear that if any consideration 
whatsoever was given to petitioner’s suggestion and re­
quest for en banc consideration of its application for re­
hearing such consideration was given only by the three 
judges who heard the case and by whose order the appli­
cation for rehearing was denied. As said three judges 
constitute a minority of the Court of Appeals for the Fifth 
Circuit, it would appear that the action taken by the 
Court in this instance is in direct conflict with the “ funda­
mental requirements” which “ should be observed by the 
Courts of Appeals” as laid down by this Court in the case 
above cited.

2. The Court of Appeals in holding that respond­
ents herein need not avail themselves of the provisions of 
the Louisiana School Assignment Laws (La. Rev. Statutes



10

17:81.1, Appendix “ A ” , page 20) assumed that this stat­
ute which on its face is clear and unambiguous and in no 
way violative of the federal constitution would be un­
constitutionally administered and therefore relieved re­
spondents of the necessity of exhausting the administra­
tive remedies outlined in said statute. The Court of Ap­
peals in so holding is in conflict with two principles of 
law firmly imbedded in the jurisprudence of this Court. 
This Court has laid down the principle that federal courts 
are without jurisdiction to enjoin the enforcement of ad­
ministrative orders where the complainant has failed to 
exhaust the administrative remedies afforded him by state 
statutes, Porter v. The Investors Syndicate, 286 U. S. 461, 
76 L. Ed. 1226, 52 S. Ct. 617 (1931) and that parties al­
leging violation of rights secured by the constitution are 
not excepted. Vandalia R. Co. v. Public Service Co., 242 
U. S. 225, 37 S. Ct. 93, 61 L. Ed. 276 (1916). This Court 
has further repeatedly held that one cannot complain in ad­
vance of application that there is danger of refusal by an 
administrative authority. Highland Farms Dairy v. Ag- 
new, 300 U. S. 608, 57 S. Ct, 549, 81 L. Ed. 835 (1937). 
See also, Rock Island Co. v. U. S., 254 U. S. 141, 65 L. Ed. 
188, 41 S. Ct. 55 (1920); Gilchrist v. Interborough R. T. 
Co., 279 U. S. 159, 73 L. Ed. 652, 49 S. Ct. 282 (1928).

3. The Court of Appeals for the Fifth Circuit in 
I holding Louisiana’s School Assignment Law unconstitu- 
I tional on the assumption of unconstitutional administra- 

tion discussed above, and on the ground that the statute 
| fails to contain “ reasonably certain or ascertainable stand- 
i ards to guide the official conduct of the superintendent” 

is in direct conflict with recent decisions of the Court of 
Appeals for the Fourth Circuit. The Court of Appeals for



11

the Fourth Circuit has in the last two years upheld the 
school assignment laws of N. Carolina on two occasions and 
on another occasion the school assignment law of S. Caro­
lina. See Carson v. Board of Education, 227 F. (2d) 789 
(C. C. A., 4th, 1955) wherein the Public Enrollment Act 
of N. Carolina, similar to and containing no more detailed 
standards than the Louisiana School Assignment Law was 
upheld (compare Session Laws of North Carolina, Session 
1955, Chapter 366, Appendix “ A ” , page 22, with Louisi­
ana Revised Statutes 17:81.1, Appendix “ A ” , page 20). 
See also Hood v. Board of Trustees of Sumter School Dis­
trict No. 2, 332 F. (2d) 626 (C. C. A., 4th, 1956), Cer­
tiorari denied, 25 Law Week 3115, upholding the School 
Assignment Law of S. Carolina; and Carson v. Warlick, 25 
Law Week 2252, (C. C. A., 4th, 1957) reaffirming the 
prior Carson case and again rejecting an attack on the 
North Carolina statute.

It is apparent from the above that the Fourth and 
Fifth Circuits of the Court of Appeals are in hopeless con­
flict as to the validity of school assignment laws, which 
conflict will cause increasing confusion until the matter 
is reviewed and settled by this Court.

4. The one-judge district court did not have juris­
diction to hear and determine the constitutionality of the 
State of Louisiana’s statutes and constitution. The law 
and the decisions of this Court make it abundantly clear 
that a one-judge district court does not have jurisdiction 
to grant an injunction upon the ground that a state statute 
is unconstitutional and that a three-judge district court 
must be convened to hear the evidence and pass upon the 
issues. This Court has repeatedly declared that Congress



12

in the enactment of Section 2281 of Title 28 of the United 
States Code sought to make interference by injunction 
“ with the enforcement of state legislation a matter for the 
adequate hearing and full deliberation which the process 
of a court composed of three judges, as provided by the 
statute, was likely to secure” . Phillips v. United States, 
312 U. S. 246, 251-253, 85 L. Ed. 800, 805-6; Stratton v. 
St. Louis Sivn. Ry. Co., 282 U. S. 10, 14, 75 L. Ed. 135, 
137; Cumberland T. & T. Co. v. La. Public Service Com­
mission, 260 U. S. 212, 67 L. Ed. 217.

It is true that this Court has held that a three- 
judge district court need not be convened where no seri­
ous Federal question is presented, but in each such in­
stance the challenged state statute was held to be consti­
tutional. In every case heretofore decided by this Court 
the absence of a substantial constitutional question has 
resulted in the dismissal of the plaintiff’s suit. In no case 
has the Court assumed jurisdiction and issued an injunc­
tion where it found that no substantial Federal question 
was presented. This was true in Ex parte Poresky, 290 
U. S. 30, 75 L. Ed. 152, cited by the three-judge court as a 
reason for its refusal to determine the issues herein. 
This Court has rendered similar decisions in other cases, 
including: California Water Service Co. v. City of Red­
ding, 304 U. S. 252, 82 L. Ed. 1323; Gully v. Interstate 
Natural Gas Co., 292 U. S. 16, 78 L. Ed. 1088; Oklahoma 
Gas & Electric Co. v. Oklahoma Baking Co., 292 U. S. 386, 
78 L. Ed. 1318; Levering Co. v. Morrin, 289 U. S. 103, 
105-6, 77 L. Ed. 1062, 1064-5.

The decision of the three-judge district court in re­
fusing to hear and determine this matter, and the de­



13

cision of the one-judge district court, proceeding alone to 
condemn the laws of Louisiana and to issue an injunction 
prohibiting their enforcement and the affirmation of these 
proceedings by the Court of Appeals represents a mani­
fest departure from, and open conflict with, numerous de­
cisions of this Court cited above.

5. In holding that this suit is not in fact a suit 
against the State of Louisiana over which Federal courts 
do not have jurisdiction and the citing in support of its 
findings the cases of George R. and B. Co. v. Redivine, 342 
U. S. 299, 72 S. Ct. 321, and Ex parte Young, 209 U. S. 
123, the Court of Appeals perpetuated the basic error 
committed by the District Court. Neither of the cases 
cited have application to the present litigation. In both 
the Redwine and Young cases the question at issue was 
purely a negative injunction. On the other hand the in­
junction issued in the present case would require affirma­
tive action by the State of Louisiana and accordingly it 
comes within the purview of the ruling of this Court in 
Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 
682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949), wherein this 
Court held:

“ Of course, a suit may fail, as one against the 
sovereign, even if it is claimed that the officer 
being sued has acted unconstitutionally or beyond 
his statutory power, if the relief requested cannot 
be granted by merely ordering the cessation of the 
conduct complained of but will require affirma­
tive action by the sovereign or the disposition of 
unquestionably sovereign property. North Caro­
lina v. Temple, 134 U. S. 22, 332 L. Ed. 849, 10 
S. Ct. 509.”



14

The present injunction would obviously require a., 
firmative action by the State of Louisiana. If the public 
schools in Louisiana are to continue the injunctions herein 
would require an affirmative and complete revamping of 
the whole educational system of the State. Accordingly 
in holding that the instant case is not in fact a suit against 
the State of Louisiana, the Court of Appeals is in direct 
conflict with the decisions of this Court cited above.

6. Respondents in their First Amended Complaint 
attacked the constitutionality of Section 331 of Title 17 
of Louisiana Revised Statutes. This Section was formerly 
Section 1 of Act 555 of 1954. The district court went be­
yond the pleadings and declared the entire Act, containing 
three additional sections not challenged by the pleadings, 
unconstitutional. This error has been perpetuated by the 
decision of the Court of Appeals affirming this amazing 
departure from the accepted and usual course of judicial 
proceedings. In so holding, the Court of Appeals is in di­
rect conflict with Reynolds v. Stockton, 140 U. S. 254, 11 
S. Ct. 773, 35 L. Ed. 464 (1891) in which this Court held 
that a decree which undertakes to decide issues not raised 
by the pleadings is void.

7. In Brown, et al., v. Board of Education of To­
peka and the other cases consolidated with it (347 U. S. 
483, 74 S. Ct. 686, 98 L. Ed. 873) this Court held that 
segregation in the public schools in the States of Kansas, 
S. Carolina, Virginia and Delaware would injure the Ne­
gro plaintiffs then before this Court and “may affect their 
hearts and minds in a way unlikely ever to be undone.” 
The facts in the present case, however, are sharply and 
clearly distinguishable from the facts in the Brown case



15

on which the Court of Appeals relied in holding Louisi­
ana’s constitutional provisions and statutes unconstitu­
tional. The court below ignored the uncontradicted evi­
dence that in addition to causing great danger to the 
health and morals of white children, integration in the 
public schools in the State of Louisiana would have serious 
and adverse psychiatric repercussions among the Negro 
students of this State. (Tr. pp. 53 through 120). It is 
submitted that the evidence shows that the facts in this 
case are substantially different from the facts in the 
School Segregation cases decided by this Court and that 
from the facts presented in this case the State of Louisi­
ana took the only means at its command to protect its 
Negro children from psychiatric trauma and to protect 
the health and morals of its white children.

CONCLUSION.

For the foregoing reasons this petition for a Writ 
of Certiorari should be granted.

Respectfully submitted,

GERARD A. RAULT,
American Bank Building,

New Orleans, Louisiana;
W. SCOTT WILKINSON,

Beck Building,
Shreveport, Louisiana,

Attorneys for Petitioner.



16

PROOF OF SERVICE.

I, GERARD A. RAULT, one of the attorneys for 
Orleans Parish School Board, petitioner, and a member of 
the Bar of the Supreme Court of the United States, hereby 
certify that on this day I served copies of the foregoing 
Petition for Writ of Certiorari on the several parties 
thereto, as follows:

1. On A. P. Tureaud, Esquire, and A. M. Tru­
deau, Jr., Esq., Counsel for respondents, by 
mailing a copy thereof, postage prepaid, ad­
dressed to their offices at 1821 Orleans Avenue, 
New Orleans, Louisiana;

2. On U. Simpson Tate, Esq., Counsel for respon­
dents, by mailing a copy thereof, air mail post­
age prepaid, addressed to his office at 2600 
Flora Street, Dallas, Texas;

3. On Robert L. Carter, Esq., and Thurgood Mar­
shall, Esq., Counsel for respondents, by mail­
ing a copy thereof, air mail postage prepaid, 
addressed to their offices at 107 W. 43rd Street, 
New York 36, New York.

Dated this ......._____ day of May, 1957.

GERARD A. RAULT, 
Attorney for Petitioner, 

American Bank Building, 
New Orleans, Louisiana



17

APPENDIX “A ”

Statutes Involved

28 USC Section 46

ASSIGNMENT OF JUDGES; DIVISIONS;
HEARINGS; QUORUM

* * * (c) Cases and controversies shall be heard 
and determined by a court or division of not more than 
three judges, unless a hearing or rehearing before the 
court en banc is ordered by a majority of the circuit judges 
of the circuit who are in active service. A court en banc 
shall consist of all active circuit judges of the circuit.

June 28, 1948, c. 646, 62 Stat. 968.

28 USC Section 2281.

INJUNCTION AGAINST ENFORCEMENT OF 
STATE STATUTE; THREE-JUDGE 

COURT REQUIRED

An interlocutory or permanent injunction restrain­
ing the enforcement, operation or execution of any State 
statute by restraining the action of any officer of such 
State in the enforcement or execution of such statute or of 
an order made by an administrative board or commission 
acting under State statutes, shall not be granted by a dis­
trict court or judge thereof upon the ground of the un­
constitutionality of such statute unless the application 
therefor is heard and determined by a district court of 
three judges under section 2284 of this title.

June 25, 1948, c. 646, 62 Stat. 968.



18

CONSTITUTION, STATE OF LOUISIANA, 1921, 
ARTICLE XII.

Paragraph 1.

PUBLIC EDUCATIONAL SYSTEM; ADMISSION;
BEGINNING AGE; KINDERGARTENS; SPECIAL 

ELECTIONS; SEGREGATION

Section 1. The Legislature shall provide for a pub­
lic educational system of the State to consist of all public 
schools and all institutions of learning operated by State 
agencies and enact laws on all matters regarding the terms 
and qualifications for admission to the public schools. 
Children attaining the age of six within four months after 
the beginning of any public school term or session, and 
kindergartens may be authorized for children between 
the ages of four and six years.

The Legislature may designate and provide for a 
special election or elections, in addition to the elections 
provided in Article XXI, at which amendments to pro­
visions of Article XII shall be submitted to the electors for 
their approval or rejection.

All public elementary and secondary schools in the 
State of Louisiana shall be operated separately for white 
and colored children. This provision is made in the exer­
cise of the state police power to promote and protect pub­
lic health, morals, better education and the peace and 
good order in the State, and not because of race. The 
Legislature shall enact laws to enforce the state police 
power in this regard. (As amended Acts 1932, No. 141, 
adopted Nov. 8, 1932; Acts 1944, No. 320, adopted Nov. 
7, 1944; Acts 1954, No. 752, adopted Nov. 2, 1954.)



19

LOUISIANA REVISED STATUTES OF 1950; 
TITLE 17.

Section 381.
SEPARATE OPERATIONS REQUIRED

All public elementary and secondary schools in the 
State of Louisiana shall be operated separately for white 
and colored children. This provision is made in the exer­
cise of the police power to promote and protect public 
health, morals, better education and the peace and good 
order in the state and not because of race. Acts 1954, No. 
555, Section 1.

Section 332.

NON-RECOGNITION OF SCHOOLS VIOLATING 
SUB-PART

The State Board of Education shall not approve 
any public schools which may violate the provisions of this 
Sub-part nor shall any of the state colleges or university 
recognize any certificate of graduation from such public 
school which may violate the provisions of this Sub-part 
as entitling the holder thereof to admission. Acts 1954, 
No. 555, Section 2.

Section 333.

SCHOOLS VIOLATING SUB-PART TO BE DE­
PRIVED OF SUPPLIES AND FUNDS

No free school books or other school supplies shall 
be furnished, nor shall any state funds for the operation 
of school lunch programs, or any other school funds be 
furnished or given to any public elementary or secondary



20

school which may violate the provisions of this Sub-part 
as above. Acts 1954, No. 555, Section 3.

Section 334.

PENALTY FOR VIOLATIONS

Any person, firm or corporation violating any of 
the provisions of this Sub-part shall be deemed guilty of a 
misdemeanor and upon conviction therefor by a court of 
competent jurisdiction for each such violation shall be fined 
not less than five hundred dollars nor more than one thou­
sand dollars, or sentenced to imprisonment in the parish 
jail not less than ninety days nor more than six months, 
or both, fined and imprisoned as above, at the discretion 
of the court. Acts 1954, No. 555, Section 4.

In case any part of this Act shall be held to be un­
constitutional, this shall not have the effect of invalidating 
any part of it that is constitutional, and the part or parts 
not affected by such ruling shall continue in full force 
and effect. This Act shall be liberally construed to pro­
tect and preserve the State Police Power as provided in 
this Act. Acts 1954, No. 555, Section 5.

LOUISIANA REVISED STATUTES OF 1950. 

17:81.1.
ASSIGNMENT OF CHILDREN TO PARTICULAR 

SCHOOLS BY PARISH SUPERINTENDENT;
HEARINGS; REVIEW BOARD; APPEAL

Each parish superintendent of schools, throughout 
this state, shall, each year, determine the particular public



21

school within each parish to be attended by each school child 
applying for admission to public schools. No school child 
shall be entitled to be enrolled or to enter into a public 
school until he has been assigned thereto in accordance 
with the provisions of this Section. In the event of dis­
satisfaction with the school assignment made by the su­
perintendent, the parents or next of kin to the child af­
fected, within ten days from the date of assignment may 
apply to the school superintendent for a hearing to have 
said child assigned to some other public school in the par­
ish, in which case the superintendent shall grant a hear­
ing, and within thirty days after the conclusion of said 
hearing, the superintendent shall hand down a decision 
in writing either sustaining his school assignment in ques­
tion or changing the same. The action of the parish 
superintendent shall be reviewable by the parish school 
board upon application of any person paying ad valorem 
taxes for the support and maintenance of the public schools 
or on the application of any other party in interest. Any 
such application for review shall be filed with the parish 
school board within thirty days from the day the action 
complained of was taken and within sixty days there­
after, said parish school board shall hold a hearing at which 
evidence shall be taken down and transcribed, the cost 
thereof to be paid for by the party making said applica­
tion prior to submission of the matter to the school board. 
The school board shall have the right to require applicant 
to furnish bond for costs within a reasonable sum, prop­
erly secured, prior to the holding of said hearing. The 
parish school board shall consider the evidence so adduced 
and as soon as practicable render its decision in writing. 
Any person, having applied for and secured a hearing by 
the parish school board who feels aggrieved by the ruling



22

of said board shall have the right to apply to the district 
court of the domicile of the said board and the right to 
appeal from the judgment of the district court to the ap­
propriate court of appeal, provided, however, that such 
right to apply to the district court shall not exist until said 
party shall have complied with the provisions hereof, and 
shall have exhausted the administrative remedies provided 
for herein.

Each school board throughout the state shall have 
authority to adopt rules and regulations governing the 
hearing and appeals provided for herein.

Wherever reference is made to parish superintend­
ent of schools or school boards the same shall apply to 
those in the cities of Monroe, Bogalusa and Lake Charles.

Added Acts 1954, No. 556, Section 1.

SESSION LAWS OF NORTH CAROLINA 
SESSION 1955

* * * * * * * *

Chapter 366.

AN ACT TO PROVIDE FOR THE ENROLLMENT OF 
PUPILS IN PUBLIC SCHOOLS

The General Assembly of North Carolina do enact:

Section 1. The county and city boards of education 
are hereby authorized and directed to provide for the en­
rollment in a public school within their respective admin­
istrative units of each child residing within such admin­
istrative unit qualified under the laws of this State for ad­



23

mission to a public school and applying for enrollment in 
or admission to a public school in such administrative unit. 
Except as otherwise provided in this Act, the authority of 
each such board of education in the matter of the enroll­
ment of pupils in the public schools within such adminis­
trative unit shall be full and complete, and its decision 
as to the enrollment of any pupil in any such school shall 
be final. No pupil shall be enrolled in, admitted to, or en­
titled or permitted to attend any public school in such 
administrative unit other than the public school in which 
such child may be enrolled pursuant to the rules, regula­
tions and decisions of such board of education.

Sec. 2. In the exercise of the authority conferred 
by Section 1 of this Act upon the county or city boards 
of education, each such board shall provide for the enroll­
ment of pupils in the respective public schools located 
within such county or city administrative unit so as to pro­
vide for the orderly and efficient administration of such 
public schools, the effective instruction of the pupils there­
in enrolled, and the health, safety, and general welfare 
of such pupils. In the exercise of such authority such 
board may adopt such reasonable rules and regulations as 
in the opinion of the board shall best accomplish such pur­
poses.

Sec. 3. The parent or guardian of any child, or the 
person standing in loco parentis to any child, who shall 
apply to the appropriate public school official for the en­
rollment of any such child in or the admission of such 
child to any public school within the county or city ad­
ministrative unit in which such child resides, and whose 
application for such enrollment or admission shall be de­
nied, may, pursuant to rules and regulations established



24

by the county or city board of education apply to such 
board for enrollment in or admission to such school, and 
shall be entitled to a prompt and fair hearing by such 
board in accordance with the rules and regulations estab­
lished by such board. The majority of such board shall 
be a quorum for the purpose of holding such hearing and 
passing upon such application, and the decision of the 
majority of the members present at such hearing shall be 
the decision of the board. If, at such hearing, the board 
shall find that such child is entitled to be enrolled in such 
school, or if the board shall find that the enrollment of 
such child in such school will be for the best interests of 
such child, and will not interfere with the proper admin­
istration of such school, or with the proper instruction of 
the pupils there enrolled, and will not endanger the health 
or safety of the children there enrolled, the board shall 
direct that such child be enrolled in and admitted to such 
school.

Sec. 4. Any person aggrieved by the final order 
of the county or city board of education may at any time 
within ten (10) days from the date of such order appeal 
therefrom to the superior court of the county in which 
such administrative school unit or some part thereof is 
located. Upon such appeal, the matter shall be heard de 
novo in the superior court before a jury in the same man­
ner as civil actions are tried and disposed of therein. The 
record on appeal to the superior court shall consist of a true 
copy of the application and decision of the board, duly 
certified by the secretary of such board. If the decision 
of the court be that the order of the county or city board 
of education shall be set aside, then the court shall enter 
its order so providing and adjudging that such child is en­



25

titled to attend the school as claimed by the appellant, or 
such other school as the court may find such child is en­

titled to attend, and in such case such child shall be ad­
mitted to such school by the county or city board of educa­
tion concerned. From the judgment of the superior court 
an appeal may be taken by any interested party or by the 
board to the Supreme Court in the same manner as other 
appeals are taken from judgments of such court in civil 
actions.

Sec. 5. All laws and clauses of laws in conflict 
with this Act are hereby repealed.

Sec. 6. This Act shall be in full force and effect 
from and after its ratification.

In the General Assembly read three times and rati­
fied, this the 30th day of March, 1955.



26

APPENDIX “B”

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

Earl Benjamin Bush, et al.,
Plaintiffs,

versus
Orleans Parish School 

Board, et al.,
Defendants.

No. 3630 
Civil Action

A. P. Tureaud 
Robert L. Carter 
A. M. Trudeau, Jr. 
Thurgood Marshall

Attorneys for Plaintiffs

Browne & Rault 
Gerard A. Rault 
W. Scott Wilkinson 
Fred S. LeBlanc 
L. H. Perez
Attorneys for Defendants

PER CURIAM:
This class action is brought in behalf of minor 

children of the Negro race by their parents, guardians or 
next friends, seeking the aid of the court in obtaining ad­
mission to the public schools of Orleans Parish on a non- 
segregated basis. The complaint alleges the children have 
been denied admission to schools attended by white chil­
dren under Article 12, § 1 of the Constitution of Louisiana 
and Louisiana Acts 555 and 556 of 1954 requiring segre­
gation of the races in public elementary and high schools 
of the state.



27

The Supreme Court of the United States in Brown 
v. Board of Education, 349 U. S. 294, in dealing with this 
identical situation with reference to the states of Kansas, 
South Carolina, Virginia and Delaware, wrote as follows: 
“ These cases were decided on May 17, 1954. The opinions 
of that date, declaring the fundamental principle that 
racial discrimination in public education is unconstitu­
tional, are incorporated herein by reference.1 All pro­
visions of federal, state or local law requiring or permit­
ting such discrimination must yield to this principle.” In 
so far as the provisions of the Louisiana Constitution and 
statutes in suit require or permit segregation of the races 
in public schools,1 2 they are invalid under the ruling of the 
Supreme Court in Brown.

This three-judge court was convened under 28 
U.S.C. § 2281 pursuant to the requests of the parties. It 
now appears that no serious constitutional question, not 
heretofore decided by the Supreme Court of the United 
States, is presented. Accordingly, a three-judge court 
under 28 U.S.C. § 2281 is not required. Ex parte Pore- 
sky, 290 U. S. 30. The two judges designated by the Chief 
Judge of the Circuit to sit with the district judge in the 
hearing and decision of this case now withdraw from the 
case, which will proceed in the district court where it was
1 The first opinion in B row n, in which the constitutional issue was

decided, held: “ Therefore, we hold that the plaintiffs and others 
similarily situated for whom the actions have been brought are, 
by reason of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth Amend­
ment.” 347 U. S. 483, 495.

2 Article 12, § 1 of the Louisiana Constitution and Act 555 of 1954 re­
quire segregation “ in the exercise of the state police power.” 
This provision does not save them from invalidity. See M ayor 
and City C ouncil o f  B altim ore City v. D awson, 4 Cir., 220 F. 
(2d) 386, affirmed 350 U. S. 877.



28

originally filed. See Gray v. Board of Trustees of Uni­
versity of Tennessee, 100 F. Supp. 113, 116; Lee v. Rose- 
berry, 94 F. Supp. 324, 328.

/ s /  WAYNE G. BORAH
UNITED STATES CIRCUIT JUDGE 

/ s /  HERBERT W. CHRISTENBERRY 
UNITED STATES DISTRICT JUDGE 

/%/ J. SKELLY WRIGHT
UNITED STATES DISTRICT JUDGE

New Orleans, Louisiana 
February 15, 1956



29

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

Earl Benjamin Bush, et al.,
Plaintiffs,

versus
Orleans Parish School 

Board, et al.,
Defendants.

No. 3630 
Civil Action

A. P. Tureaud 
Robert L. Carter 
A. M. Trudeau, Jr. 
Thurgood Marshall 

Attorneys for Plaintiffs

Browne & Rault 
Gerard A. Rault 
W. Scott Wilkinson 
Fred S. LeBlanc 
L. H. Perez

Attorneys for Defendants

WRIGHT, District Judge:
This action in equity1 is brought in behalf of minor 

Negro plaintiffs, and all Negroes similarly situated,1 2 seek­
1 The jurisdiction of this court is invoked under Section 1331, Title

28, United States Code, this being an action that arises under the 
Fourteenth Amendment of the Constitution of the United States, 
Section 1, and Section 1981 of Title 42, United States Code, 
wherein the matters in controversy exceed the sum and value of 
Three Thousand ($3,000.00) Dollars, exclusive of interest and 
costs.

The jurisdiction of the court is also invoked under Section 
1343, Title 28, United States Code, this being an action author­
ized by Section 1983, Title 42, United States Code, to be com­
menced by any citizen of the United States, or other person 
within the jurisdiction thereof, to redress the deprivation, under­
color of a state law, statute, ordinance, regulation, custom or 
usage, of rights, privileges and immunities secured by the Four­
teenth Amendment of the Constitution of the United States, 
Section 1, and Section 1981 of Title 42, United States Code, 
which provides for the equal rights of citizens and all persons 
within the jurisdiction of the United States.

2 Class action under Rule 23 (a) (3) Fed. R. Civ. P.



30

ing a declaratory judgment3 and injunctive relief against 
the defendants who maintain and operate, pursuant to 
state statute,4 the public schools of the Parish of Orleans, 
Louisiana. Before the court at this time is the application 
for a temporary injunction.

The public schools of the City of New Orleans are 
segregated, that is, there are separate schools for white 
and Negro pupils. Plaintiffs allege that this segregation 
deprives them of equal protection of the law under the 
Fourteenth Amendment to the Constitution of the United 
States, and that under Brown v. Board of Education of 
Topeka, 349 U. S. 294, the defendants should be re­
strained from continuing this practice. In addition to cer­
tain preliminary defenses, defendants contend that pur­
suant to Article 12, § 1 of the Constitution of Louisiana 
and Louisiana Acts 555 and 556 of 1954, all enacted 
subsequent to the decision of the Supreme Court in 
Broivn,5 the public schools of New Orleans are operated on 
a segregated basis as an exercise of the police power of the 
state and, therefore, the decision of the Supreme Court in 
Brown outlawing segregation on the basis of race, is not 
dispositive of the issue here. This contention was con­
sidered and rejected by this court, sitting with three 
judges, in an opinion in this case this day rendered. That 
opinion is incorporated herein by reference. There re­
mains for disposition then only the preliminary defenses.

In their first preliminary defense, the defendants 
say that this action is in effect a suit against the State
3 28 U. S. C. §§ 2201, 2202.
4 La. E. S. 17:51.
5 347 U. S. 483.



31

of Louisiana, which has not consented to be sued, and 
therefore, this court is without jurisdiction. But a suit 
against officers or agents of a state acting illegally is not 
a suit against the state.6 The Brown case itself was 
brought against the Board of Education of Topeka, Kan­
sas, just as the suit here is brought against the state board 
charged by statute with the administration of public 
schools. In addition, practically every one of the multi­
tude of school cases which have been litigated through the 
courts and before the Supreme Court has been brought 
against state agencies administering the schools. Cer­
tainly if there were any lack of jurisdiction, some court 
along the line, including the Supreme Court, in at least one 
of the cases would have noticed it, as courts are required 
to do although the issue is not raised. Moreover, the state 
statute creating the defendant Board here gives it the 
right to sue and be sued. La. R. S. 17:51.

Defendants also maintain that the amended com­
plaint should be stricken7 because it is in the nature of 
a supplemental complaint and no order of the court was 
obtained before it was filed. They also make the point 
that in the amended complaint, James F. Redmond, Su­
perintendent of the Orleans Parish Schools, is made a 
defendant as successor to 0. Perry Walker, Acting Super­
s' See G eorgia  R. Co. v R edw ine, 342 U. S. 299, and cases therein cited 

on page 304.

7 Defendants also contend that the complaint was improperly brought 
under Rule 17 (c ) , Fed. R. Civ. P., by the “ next friends” of the 
plaintiff. This contention was considered and rejected in B oard 
o f  Supervisors o f  La. State U., etc., v. Tureaud, 5 Cir., 225 F. 
(2d) 435, affirmed by court en banc January 6, 1956. The com­
plaint here alleges that the “ next friends” of plaintiffs are their 
parents or guardians, so the contention appears pointless in any 
event.



32

intendent named defendant in the original complaint, and 
that the amended complaint was not filed within six months 
of the time Redmond took office. This point is well taken 
and the action against the defendant Redmond must be 
dismissed without prejudice to institution of a new and 
similar action. Rule 25 (d), Fed. R. Civ. P. The objec­
tion to the balance of the amended complaint, however, is 
highly technical in nature, and even if well taken, would 
not result in a dismissal of the action, but only in the 
giving to the plaintiffs time to amend. Rule 15 (a), Fed. 
R. Civ. P. It need not be disposed of at this time.

Defendants also move to dismiss on the ground that 
no justiciable controversy is presented by the pleadings. 
This motion is without merit. The complaint plainly states 
that plaintiffs are being deprived of their constitutional 
rights by being required by the defendants to attend segre­
gated schools, and that they have petitioned the defendant 
Board in vain to comply with the ruling of the Supreme 
Court in Brown v. Board of Education of Topeka, supra. 
The defendants admit that they are maintaining segre­
gation in the public schools under their supervision pur­
suant to the state statutes and the article of the Consti­
tution of Louisiana in suit. If this issue does not pre­
sent a justiciable controversy, it is difficult to conceive 
of one.

Finally, the defendants contend that the plaintiffs 
have not exhausted their administrative remedies under 
Louisiana Act 556 of 1954 and that, consequently, this ac­
tion must be dismissed. Act 556 of 1954 was part of the 
legislative plan, enacted subsequent to the Supreme Court’s 
decision in Brown v. Board of Education of Topeka, supra,



33

to avoid the effect of that decision in order to retain 
segregation in the public schools of the state. Article 12, 
§ 1, of the Louisiana Constitution, passed in 1954, makes 
segregation through the exercise of police power part of 
the constitutional law of the state. Act 555 of 1954 im­
plements that constitutional provision by providing that 
“ All public elementary and secondary schools in the State 
of Louisiana shall be operated separately for white and 
colored children” and Act 556 of 1954 details the means 
by which segregation is to be achieved. It provides that 
“ Each Parish Superintendent of Schools, throughout this 
State, shall, each year, determine the particular public 
school within each Parish to be attended by each school 
child applying for admission to public schools,”  and that no 
school child shall be entitled to enter a public school unless 
assigned in accordance with the provisions of the Act. The 
Act goes on further to provide for a hearing before the 
school superintendent and the board if there is dissatis­
faction with the school assignment of any particular 
child.8 For the reasons stated in the opinion of this 
court sitting with three judges rendered this day, the 
legislative plan for maintaining segregation in the public 
schools of Louisiana is invalid. Since the administrative 
remedy outlined in Act 556 is part of the plan, it is in­
valid on its face and may be disregarded. Yarnell v. 
Hillsborough Packing Co., 5 Cir., 70 F. (2d) 435; 42 Am. 
Jur., Public Administrative Law, § 200. Should Act 556 be 
considered alone and not part of the over-all legislative 
plan, then it is invalid as an unlawful delegation of legis­
lative authority for the reason that no standards on which
8 Act 556 of 1954 also states that persons aggrieved by the ruling of 

the Board may apply to the state court for relief. This right to 
apply to the state court for relief is a judicial rather than an 
administrative remedy. Lane v. W ilson, 307 U. S. 268.



34

the superintendent may base his assignment of children are 
included therein. 42 Am. Jur., Public Administrative 
Law, §§ 42, 43, 44, 45. The only standard for assignment 
given in the plan is in Act 555 which provides for segre­
gation of the races, which is, of course, invalid under 
Brown.

As a practical matter, plaintiffs here have ex­
hausted their administrative remedies. They have peti­
tioned the Board on three separate occasions asking that 
their children be assigned to nonsegregated schools. The 
Board not only has refused to desegregate the schools, but 
has passed a resolution noting the existence of the present 
suit and stating, “ It is not only to the manifest interest 
of this Board and in accord with its expressed policy, but 
also in furtherance of the public welfare of this com­
munity that this suit and any others that might be in­
stituted with the same objective be vigorously, aggres­
sively, and capably defended.”  To remit each of these 
minor children and the thousands of other similarly sit­
uated to thousands of administrative hearings before this 
Board, to seek the relief to which the Supreme Court of the 
United States has said they are entitled, would be a vain 
and useless gesture, unworthy of a court of equity. It 
would be a travesty in which this court will not partici­
pate.

The granting of a temporary injunction in this 
case does not mean that the public schools in the Parish 
of Orleans would be ordered completely desegregated 
overnight, or even in a year or more. The Supreme Court, 
in ordering equitable relief in these cases, has decreed 
that the varied local school problems be considered in each 
case. The problems attendant desegregation in the deep



35

South are considerably more serious than generally appre­
ciated in some sections of our country. The problem of 
changing a people’s mores, particularly those with an 
emotional overlay, is not to be taken lightly. It is a prob­
lem which will require the utmost patience, understand­
ing, generosity and forbearance from all of us, of what­
ever race. But the magnitude of the problem may not 
nullify the principle. And that principle is that we are, 
all of us, freeborn Americans, with a right to make our 
way, unfettered by sanctions imposed by man because of 
the work of God.

Decree to be drawn by the court.

/ s /  J. SKELLY WRIGHT
UNITED STATES DISTRICT JUDGE

New Orleans, Louisiana
February 15, 1956



36

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

Earl Benjamin Bush, et ah,
Plaintiffs,

versus
Orleans Parish School 

Board, et ah,
Defendants.

No. 3630 
Civil Action

A. P. Tureaud 
Robert L. Carter 
A. M. Trudeau, Jr. 
Thurgood Marshall 

Attorneys for

Browne & Rault 
Gerard A. Rault 
W. Scott Wilkinson 
Fred S. LeBlanc 

Plaintiffs L. H. Perez
Attorneys for Defendants

DECREE
This cause came on for hearing on motion of plain­

tiffs for a temporary injunction in accordance with the de­
cree of the Supreme Court in Brown v. Board of Educa­
tion of Topeka, 349 U. S. 294, and the court, having care­
fully considered the decision of the Supreme Court, the ar­
guments of counsel and the record heretofore made in this 
cause:

IT IS ORDERED, ADJUDGED AND DECREED 
that the defendant, Orleans Parish School Board, a cor­
poration, and its agents, its servants, its employees, their 
successors in office, and those in concert with them who 
shall receive notice of this order, be and they are hereby 
restrained and enjoined from requiring and permitting



37

segregation of the races in any school under their super­
vision, from and after such time as may be necessary to 
make arrangements for admission of children to such 
schools on a racially nondiscriminatory basis with all de­
liberate speed as required by the decision of the Supreme 
Court in Brown v. Board of Education of Topeka, supra.

IT IS FURTHER ORDERED, ADJUDGED AND 
DECREED that a bond be filed by plaintiffs herein in the 
sum of One Thousand Dollars ($1,000.00) for the payment 
of such costs and damages as may be incurred or suffered 
by any party who is found to be wrongfully enjoined or 
restrained, said bond to be approved by the Clerk of this 
Court.

/ s /  J. SKELLY WRIGHT
UNITED STATES DISTRICT JUDGE

New Orleans, Louisiana
February 15, 1956



38

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Orleans Parish School Board, 
Appellant,

versus
Earl Benjamin Bush, et al.,

Appellees.

No. 16,190

Appeal from the United States District Court for the 
Eastern District of Louisiana.

(March 1, 1957.)

Before RIVES, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge: This is an appeal in an 
action on behalf of certain New Orleans Negro school chil­
dren from a judgment of the District Court for the East­
ern District of Louisiana enjoining appellant “ from re­
quiring and permitting segregation of the races in any 
school under their supervision, from and after such time 
as may be necessary to make arrangements for admission 
of children to such schools on a racially non-discrimina- 
tory basis with all deliberate speed as required by the 
decision of the Supreme Court in Brown, et al., v. Board 
of Education of Topeka, et al., 349 U. S. 294.”



39

The principal grounds of appellant’s attack on the 
validity of this order are: (1) This was a suit against
the State of Louisiana and is prohibited by the XI Amend­
ment to the Constitution; (2) The complaint failed to 
state a claim on which relief could be granted; (3) The 
court erred in holding that the provisions of Art. XII, 
§ 1 of the Louisiana Constitution requiring separate schools 
for white and colored children and that all of Louisiana 
Act 555 and Section 1 of 556 of 1954 requiring segregation 
and assignment of pupils respectively in public schools 
were invalid; (4) The proof on behalf of plaintiffs and 
countershowing by defendant did not warrant the issu­
ance of a temporary injunction. These points as well as 
subsidiary questions will be discussed after a brief state­
ment of the factual background.

On November 12, 1951, appellees petitioned the 
School Board “ to end at once the practice and custom of dis­
criminating against Negro students solely on account of 
their race and color and admit these Negro children and 
all others similarly situated to the public schools of Orleans 
Parish which have heretofore and are now restricted to 
the enrollment of white children.”  This petition was 
denied by official action of the Board on November 26, 
1951.1 On February 19, 1952, an appeal was taken to 
the State Board of Education; no reply having been re­
ceived, appellees again, on August 14th, requested action 
on their petition; on August 27th a reply was received 
over the signature of the Secretary of the State Board, 
which while not categorically denying the petition stated:
1 This action was taken several years before the adoption of the pupil 

assignment law with its provisions for administrative relief, which 
will be discussed later.



40

“ The Board feels that many of the items included are 
wholly within the jurisdiction of the Board.” 2 On Sep­
tember 5, 1952, the original complaint in this action was 
filed. It alleged great disparities between the physical 
plant and the content of the curricula of Negro and white 
schools, and also alleged discrimination because of segre­
gation per se. It alleged that the Board was pursuing 
a policy and custom of maintaining separate schools for 
white and Negro children under the provisions of Art. 
XII, Sec. 1 of the Louisiana Constitution. It sought a 
declaratory judgment on the questions, among others, 
(a) “ whether the policy, custom, practice and usage of 
defendants . . .  in denying on account of race or color 
to infant plaintiffs and others similarly situated . . . 
educational opportunities, advantages and facilities . . . 
equal to the educational opportunities, advantages and 
facilities afforded and available to white children . . . 
is unconstitutional and void as being a denial of the 
equal protection of the laws guaranteed under the Four­
teenth Amendment to the Constitution of the United 
States;” (b) “ whether Article XII, Sec. 1 of the Constitu­
tion of 1921 of the State of Louisiana which prohibits 
infant plaintiffs from attending the only public schools 
of Orleans Parish where educational opportunities, ad­
vantages and facilities equal to those afforded all other 
qualified pupils . . . are available and force them to at­
tend secondary schools in Orleans Parish solely because 
of race and color is unconstitutional and void as a viola­
tion of the Fourteenth Amendment of the Constitution 
of the United States.”  It also prayed a judgment declar­
2 The petition had pointed out many alleged inequalities between the 

facilities in the white and Negro schools. In any event this is 
either a rejection of the request or a statement that the Parish 
Board had final jurisdiction.



41

ing that the separate schools provision of Article XII, Sec. 
1 of the Louisiana Constitution is a denial of the equal 
protection clause of the Fourteenth Amendment and is 
therefore unconstitutional and void, and for a permanent 
injunction enjoining defendant Board from following such 
provision as being in contravention of rights guaranteed 
under the United States Constitution.

By stipulation proceedings on this complaint were 
suspended on account of the pendency of the school Segre­
gation cases3 in the Supreme Court of the United States.

After the first opinion in the Brown case the State 
Legislature of Louisiana proposed and the people adopted 
an amendment to Art, XII, Sec. 1 of the State Constitu­
tion which had already provided, in effect, that all public 
elementary and secondary schools should be operated 
separately for white and colored children by adding that 
“ This provision is made in the exercise of the state police 
power to promote and protect public health, morals, better 
education and the peace and good order in the State, 
and not because of race. The Legislature shall enact 
laws to enforce the state police power in this regard.” 
The Legislature then promptly enacted Acts 1954, No. 555 
and 556. Section 1 of Act 555 merely repeated the consti­
tutional requirement of separate schools. Sections 2, 3 and 
4 provide for penalties to be imposed on local boards and 
an individual failing to observe the requirements as to 
separate schools in Section 1. Section 5 is a separability
s Brown v. Board of Education of Topeka, Kans., 347 U. S. 483 and 

related cases.



42

clause.4 Act 556, adopted at the same time, is the pupil 
assignment statute. It provides for assignment of each 
pupil each year by the parish superintendent to a par­
ticular school, and, without providing any standards 
other than those of Act 555 for separation of the races, 
provides for an appeal to the local board and then to
4 Act 555 in full is as follows:

“ Separate operation required
“ All public elementary and secondary schools in the state of 

Louisiana shall be operated separately for white and colored 
children. This provision is made in the exercise of the State 
police power to promote and protect public health, morals, better 
education and the peace and good order in the state and not 
because of race. Acts 1954, No. 555, Section 1. 
“ Non-recognition of schools violating Sub-part

“ The State Board of Education shall not approve any public 
schools which may violate the provisions of this Sub-part nor 
shall any of the state colleges or university recognize any cer­
tificate of graduation from such public school which may violate 
the provisions of this Sub-part as entitling the holder thereof to 
admission. Acts 1954, No. 555, Section 2.
“ Schools violating Sub-part to be deprived of supplies and funds

“ No free school books or other school supplies shall be fur­
nished, nor shall any state funds for the operation of school 
lunch programs, or any other school funds be furnished or given 
to any public elementary or secondary school which may violate 
the provisions of this Sub-part as above. Acts 1954, No. 555, 
Section 3.
“ Penalty for violations

“ Any person, firm or corporation violating any of the pro­
visions of this Sub-part shall be deemed guilty of a misdemeanor 
and upon conviction therefor by a court of competent jurisdic­
tion for each such violation shall be fined not less than five hun­
dred dollars nor more than one thousand dollars, or sentenced to 
imprisonment in the parish jail not less than ninety days nor 
more than six months, or both, fined and imprisoned as above, 
at the discretion of the court. Acts 1954, No. 555, Section 4.

“ In case any part of this Act shall be held to be unconsti­
tutional, this shall not have the effect of invalidating any part of 
it that is constitutional, and the part or parts not affected by 
such ruling shall continue in full force and effect. This Act shall 
be liberally construed to protect and preserve the State Police 
Power as provided in this Act.”  Acts of 1954, No. 555, Section 5.



48

the State Board and thereafter to the state district court.
5 Act 556, Sec. 1, in full is as follows:

“ ASSIGNM ENT OF CHILDREN TO PARTICULAR
SCHOOLS BY PARISH SUPERINTENDENT; HEARING S; 
R E V IE W  BO ARD; APPEAL

“ Each parish superintendent of schools, throughout this state, 
shall, each year, determine the particular public school within 
each parish to be attended by each school child applying for ad­
mission to public schools. No school child shall be entitled to be 
enrolled or to enter into a public school until he has been as­
signed thereto in accordance with the provisions of this Section. 
In the event of dissatisfaction with the school assignment made 
by the superintendent, the parents or next of kin to the child 
affected, within ten days from the date of assignment may apply 
to the school superintendent for a hearing to have said child 
assigned to some other public school in the parish, in which case 
the superintendent shall grant a hearing, and within thirty days 
after the conclusion of said hearing, the superintendent shall 
hand down a decision in writing either sustaining his school as­
signment in question or changing the same. The action of the 
parish superintendent shall be reviewable by the parish school 
board upon application of any person paying ad valorem taxes 
for the support and maintenance of the public schools or on the 
application of any other party in interest. Any such application 
for review shall be filed with the parish school board within 
thirty days from the day the action complained of was taken and 
within sixty days thereafter, said parish school board hold a 
hearing at which evidence shall be taken down and transcribed, 
the cost thereof to be paid for by the party making said appli­
cation prior to submission of the matter to the school board. The 
school board shall have the right to require applicant to furnish 
bond for costs within a reasonable sum, properly secured, prior 
to the holding of said hearing. The parish school board shall 
consider the evidence so adduced and as soon as practicable ren­
der its decision in writing. Any person, having applied for and 
secured a hearing by the parish school board who feels aggrieved 
by the ruling of said board shall have the right to apply to the 
district court of the domicile of the said board and the right to 
appeal from the judgment of the district court to the appropriate 
court of appeal, provided, however, that such right to apply to the 
district court shall not exist until said party shall have complied 
with the provisions hereof, and shall have exhausted the admin­
istrative remedies provided for herein.

“ Each school board throughout the state shall have author­
ity to adopt rules and regulations governing the hearing and ap­
peals provided for herein.

“ Wherever reference is made to parish superintendent of 
schools or school boards the same shall apply to those in the 
cities of Monroe, Bogalusa and Lake Charles. Added Acts 1954, 
No. 556, § 1.”



44

Following the enactment of these laws, appellees pe­
titioned the school board to take immediate steps to re­
organize the schools under its jurisdiction on a nondis- 
criminatory basis. No reply was made to this or to a 
subsequent petition, but the board engaged counsel to 
“ defend, as special attorney for the Board, both in the 
trial court and in the Courts of Appeal” the action then 
pending.6 Soon thereafter appellees filed a first amended 
complaint setting up the provisions of the amended con­
stitution and the newly enacted statutes, a prayer for 
declaratory relief holding them invalid and renewing their 
prayer for preliminary and permanent injunction against 
the enforcement by the board of the provisions of the new 
laws.

The defendant board filed its motion to dismiss and 
the State of Louisiana prayed the right to intervene solely 
for the purpose of filing a motion to dismiss the suit as 
being one against the State. No order appears to have 
been entered allowing this intervention and the State is 
not appearing as a party on this appeal, although a brief 
has been tendered on behalf of the State as amicus curiae. 
Its petition for leave to file hereby granted and its brief 
has been considered by the Court.
6 The resolution stated it to be the policy of the board to maintain its 

policy of segregation by the language in the following “ Whereas” 
clauses:
“ W H EREAS a class action has been instituted in the United 
States District Court for the Eastern District of Louisiana by 
Earl Benjamin Bush and others against the Orleans Parish School 
Board and its superintendent demanding a preliminary and ulti­
mately a permanent injunction against the segregation of the 
races in the public schools of New Orleans;
“ W H EREAS it is not only to the manifest interest of this Board 
and in accord with its expressed policy, but also in furtherance 
of the public welfare of this community that this suit and any 
others that might be instituted with the same objective be vigor­
ously, aggressively, and capably defended;”



45

NATURE OF THE SUIT
We consider first whether there is any merit in ap­

pellant’s contention that this is in fact a suit brought by 
citizens of the State of Louisiana against the State. Of 
course such a suit is prohibited by the principle of sov­
ereign immunity and by analogy to the Eleventh Amend­
ment to the Constitution of the United States. Hans v. 
Louisiana, 134 U. S. 1.

It would seem hardly worth our considering this con­
tention in light of the fact that all of the School Segre­
gation Cases were actions of the same type as the one 
before us (suits against a state official or board operating- 
under State authority) were it not for the fact that both 
the appellant and the Attorney General of the State urge 
it so strongly upon us. The burden of their argument 
is that this is a suit to compel State action, which under 
a long line of cases, including Great Northern Life In­
surance Company v. Reed, 322 U. S. 47, and Ford Motor 
Company v. Treasury Department, 323 U. S. 459, falls 
within the prohibition whether nominally against the State 
or against State officials. But this suit does not seek to 
compel state action. It seeks to prevent action by State 
officials which they are taking because of the require­
ments of a State constitution and laws challenged by the 
plaintiffs as being in violation of their rights under the 
Federal Constitution. If in fact the laws under which 
the board here purports to act are invalid, then the board 
is acting without authority from the State and the State 
is in nowise involved. That a federal court can entertain 
a suit where such a situation is alleged has long been



46

recognized. In Ex parte Young, 209 U. S. 123, the Su­
preme Court said in such a case as this:

. . It is contended that the complainants do not 
complain and they care nothing about any action 
which Mr. Young might take or bring as an ordi­
nary individual, but that he was complained of as 
an officer, to whose discretion is confided the use 
of the name of the State of Minnesota so far as 
litigation is concerned, and that when or how he 
shall use it is a matter resting in his discretion and 
cannot be controlled by any court.

“ The answer to all this is the same as made in 
every case where an official claims to be acting 
under the authority of the State. The act to be 
enforced is alleged to be unconstitutional, and if 
it be so, the use of the name of the State to en­
force an unconstitutional act to the injury of com­
plainants is a proceeding without the authority of 
and one which does not affect the State in its sov­
ereign or governmental capacity. It is simply an 
illegal act upon the part of a State official in at­
tempting by the use of the name of the State to en­
force a legislative enactment which is void because 
unconstitutional. If the act which the State At­
torney General seeks to enforce be a violation of 
the Federal Constitution, the officer in proceed­
ing under such enactment comes into conflict with 
the superior authority of that Constitution, and he 
is in that case stripped of his official or represen­
tative character and is subjected in his person to the 
consequences of his individual conduct. The State 
has no power to impart to him any immunity from



47

responsibility to the supreme authority of the United 
States.”

Central of Georgia Railroad v. Redwine, 342 U. S. 
299, relied on by the trial court, is the most recent pro­
nouncement of the Supreme Court to the same effect. See 
also School Board of the City of Charlottesville v. Allen
(4th c ir .) ,___F. (2d) ____ (dec. Dec. 31, 1956), where the
Court of Appeals for the Fourth Circuit held a suit such as 
this not to be one against the State of Virginia.

There is no merit in the claim of appellant that the 
court was without jurisdiction to try this case as being a 
suit against the State. The substance of this suit is that 
the school board is unconstitutionally forcing them to at­
tend schools that are segregated according to race and their 
prayer is that the board be enjoined from continuing to do 
so. If plaintiffs are right in their contention, then they 
can obtain complete relief from this defendant, because any 
sanctions compelling it to continue its illegal conduct falls 
when the Court determines that such sanctions are illegal,

EXHAUSTION OF ADMINISTRATIVE REMEDIES
The second ground of appellant’s motion to dismiss 

was its contention that the complaint fails to state a claim 
on which relief can be granted. The first basis for this 
attack is that, assuming all the allegations as to uncon­
stitutional acts by the defendant to be true, the plaintiffs 
have not pursued their administrative remedies for re­
lief before filing of their suit. In asserting this conten­
tion appellant seems to overlook completely the fact that 
when this suit was filed there was no pupil assignment 
law on the statute books. So far as has been called to



48

our attention the plaintiffs did all they were required 
to do administratively in 1951 to seek relief from the con­
dition of which they were complaining, i. e., inequality 
and discrimination between the facilities of white and 
colored schools and the discrimination resulting per se 
from the operation of a segregated school system. They 
applied to the defendant for relief and appealed its ad­
verse decision to the State board which remanded them 
to the local board. YvTtere else they could go adminis- 
istratively is nowhere suggested by appellant, which argues 
the entire matter as though there had then been a pupil 
assignment statute on the books.

But assuming that the trial court and we should 
view this question in the light of conditions after the pas­
sage of the 1954 acts, which, however, we do not decide, 
there is still no merit in appellant’s argument. Appellees 
were not seeking specific assignment to particular schools. 
They, as Negro students, were seeking an end to a local 
school board rule that required segregation of all Negro 
students from all white students. As patrons of the 
Orleans Parish school system they are undoubtedly en­
titled to have the district court pass on their right to 
seek relief. Jackson v. Rawdon (5th Cir.), 285 F. (2d) 93, 
cert, den., 352 U. S. 925, and see School Board of the City 
of Charlottesville v. Allen, supra.

Moreover, so long as assignments could be made un­
der the Louisiana constitution and statutes only on a basis 
of separate schools for white and colored children to re­
mit each of these minor plaintiffs and thousands of others 
similarly situated to thousands of administrative hearings 
before the board for relief that they contend the Supreme



49

Court has held them entitled to, would, as the trial judge 
said, “be a vain and useless gesture, unworthy of a court 
of equity, . . .  a travesty in which this court will not 
participate.” See Adkins v. Newport News School Board, 
(D. C., E. D. Va.), decided 1/11/57, 25 L. W. 2317.

PROOF OF ACTUAL OR IMMEDIATE 
IRREPARABLE INJURY

A further basis for appellant’s claim that the suit 
should be dismissed was that there was no showing of ac­
tual or immediate irreparable injury. It may well be ar­
gued to the contrary that, assuming that plaintiffs are 
being denied their constitutional right to equality with 
members of the white race in their educational opportuni­
ties, every day that passes counts as an irreparable loss to 
the school child thus discriminated against. The simplest 
answer to this contention, however, is in the limited action 
of the court, which was well within what was prayed for 
by appellees. It declared the rights of the parties as they 
prayed and restrained the board from “ requiring and per­
mitting segregation of the races in any school under their 
supervision, from and after such time as may be necessary 
to make arrangements for admission of children to such 
schools on a racially nondiscriminatory basis with all 
deliberate speed as required by the decision of the Su­
preme Court in Brown v. Board of Education of Topeka, 
supra.'”

Such an order, while in the form of a preliminary 
injunction, contained no immediately compulsive features 
so far as relieving the plaintiffs of day by day injury 
was concerned. Inasmuch as they do not complain of 
the failure of the court to afford them immediate relief



50

it seems to us that there is little ground for the board 
to do so on this particular ground.

CONSTITUTIONALITY OP LOUISIANA 
CONSTITUTION AND LAWS

We have heretofore dealt with contentions advanced 
by appellant which it says entitle it to a dismissal of the 
action whether or not the plaintiffs are being denied their 
constitutional rights. We now come to the question 
whether under the statutes of Louisiana enacted pursuant 
to the amendment to that State’s constitution the legal 
position of the parties here differs from that which the 
litigants occupied in the School Segregation case, supra. 
Obviously if nothing new or different has been added the 
plaintiffs are entitled to a declaratory judgment declar­
ing their right “ to have the school board, acting promptly, 
and completely uninfluenced by private and public opinion 
as to the desirability of desegregation in the community, 
proceed with deliberate speed consistent with admin­
istration”  to abolish segregation in the Orleans Parish 
school system. (Jackson v. Rawdon, supra, at 235 F. (2d) 
96).

The new circumstance to which appellant points is 
the amendment to the Louisiana constitution which, in 
effect, provides that there shall continue to be racially 
separate schools, which separation is stated for the first 
time to be “ in the exercise of the state police power to 
promote and protect public health, morals, better educa­
tion and the peace and good order in the State, and not 
because of race.” There is also the new pupil assignment 
law which we have already discussed.



51

Appellant nowhere in its brief undertakes to explain 
the process of reasoning by which it seeks to have this 
Court conclude that racial segregation in the schools is 
any less segregation “ because of race” merely because 
the stated basis of adhering to the policy is in the exer­
cise of the State’s police power. Nor does the brief filed 
by the Attorney General of Louisiana discuss the issue. 
However, the affidavits introduced on the hearing for 
preliminary injunction make clear what the briefs do not. 
They deal with the alleged disparity between the two 
races as to intelligence ratings, school progress, incidence 
of certain diseases, and percentage of illegitimate births, 
in all of which statistical studies one race shows up to 
poor advantage. This represents an effort to justify a 
classification of students by race on the grounds that one 
race possesses a higher percentage of undesirable traits, 
attributes or conditions. Strangely enough there seems 
never to have been any effort to classify the students of 
the Orleans Parish according to the degree to which they 
possess these traits. That is, there seems to have been 
no attempt to deny schooling to, or to segregate from 
other children, those of illegitimate birth or having so­
cial diseases or having below average intelligence quo­
tients or learning ability because of those particular facts. 
Whereas any reasonable classification of students accord­
ing to their proficiency or health traits might well be 
considered legitimate within the normal constitutional 
requirements of equal protection of the laws it is unthink­
able that an arbitrary classification by race because of 
a more frequent identification of one race than another 
with certain undesirable qualities would be such reason­
able classification.



52

The use of the term police power works no magic in 
itself. Undeniably the States retain an extremely broad 
police power. This power, however, as everyone knows, 
is itself limited by the protective shield of the Federal 
Constitution. Thus, for instance, municipal zoning laws 
passed to require racially segregated residential zoning- 
have been struck down under the Fourteenth Amendment. 
In Buchanan v. Warley, 245 U. S. 60, the Supreme Court 
said at page 74:

“ The authority of the State to pass laws in the 
exercise of the police power, having for their ob­
ject the promotion of the public health, safety 
and welfare is very broad as has been affirmed 
in numerous and recent decisions of this court. 
Furthermore, the exercise of this power, embrac­
ing nearly all legislation of a local character, is 
not to be interfered with by the courts where it 
is within the scope of legislative authority and the 
means adopted reasonably tend to accomplish a law­
ful purpose. But it is equally well established that 
the police power, broad as it is, cannot justify the 
passage of a law or ordinance which runs counter 
to the limitations of the Federal Constitution; that 
principle has been so frequently affirmed in this 
court that we need not stop to cite the cases.”

To the same effect see the Georgia case of Carey v. City 
of Atlanta, 143 Ga. 192.

Probably the most clear cut answer to this effort by 
the State of Louisiana to continue the pattern of segre­
gated schools in spite of the clear and unequivocal pro­
nouncement of the Supreme Court in the School Seg­



53

regation cases7 is that this is precisely what was expressly 
forbidden by those decisions. Whatever may have been 
thought heretofore as to the reasonableness of classifying 
public school pupils by race for the purpose of requiring 
attendance at separate schools, it is now perfectly clear 
that such classification is no longer permissible, whether 
such classification is sought to be made from sentiment, 
tradition, caprice, or in exercise of the State’s police 
power.

From what we have said the conclusion is obvious 
that the State constitutional provisions as to maintaining 
separate schools for white and colored children is in direct 
conflict with the equal protection clause of the Four­
teenth Amendment and is void and of no effect. The 
same is true of the statute designed to implement this con­
stitutional requirement, Act 555 of 1954.

We next come to the Pupil Assignment Law. Al­
though we have already expressed the view that this stat­
7 “ W e conclude that in the field of public education the doctrine of 

‘separate but equal’ has no place. Separate educational facili­
ties are inherently unequal. Therefore, we hold that the plain­
tiffs and others similarly situated for whom the actions have 
been brought are, by reason of the segregation complained of, 
deprived of the equal protection of the laws guaranteed by the 
Fourteenth Amendment. This disposition makes unnecessary any 
discussion whether such segregation also violates the Due Process 
Clause of the Fourteenth Amendment.”
Brown v. Board of Education, 347 U. S. 483, at 495.
“ These cases were decided on May 17, 1954. The opinion of 
that date, declaring the fundamental principle that racial dis­
crimination in public education is unconstitutional, are incorpor­
ated herein by reference. All provisions of federal, state, or local 
law requiring or permitting such discrimination must yield to this 
principle. There remains for consideration the manner in which 
relief is to be accorded.”  Brown v. Board of Education, 349 
U. S. 294, at 298,



54

ute did not have the effect of preventing the commence­
ment and maintenance of this action, the role it might 
have in the future disposition of the case by the trial 
court makes it appropriate for us to answer appellant’s 
contention that that court erred in holding it invalid.

Whatever might be the holding as to the validity of 
an administrative pupil assignment statute containing 
reasonably certain or ascertainable standards to guide 
the official conduct of the superintendent of the local 
school board and to afford the basis for an effective ap­
peal from arbitrary action, Act 556 is not such a statute. 
The plaintiffs, seeking to assert their right to attend 
non-segregated schools as guaranteed them under the Con­
stitution, would be remitted to an administrative official 
guided by no defined standards in the exercise of his 
discretion.8 In such circumstances no number of hear­
ings or appeals would avail them anything because it 
would be impossible for them to bring forward any proof 
bearing on whether they possessed those attributes, quali­
fications, or characteristics that would bring them with­
in the group of students permitted to attend the particu­
lar school or schools. Attempts by statute to give any 
official the power to assign students to schools arbitrarily 
according to whim or caprice are legally impermissible, 
especially if considered in light of the history of assign­
ments made in a manner that has now been held to be 
unconstitutional and of the recently readopted require­
ment of the State constitution reaffirming such uncon­
stitutional standards, which is reinforced by the heavy 
sanctions against any official permitting a departure there­
8 Cf. Carsen v. Warlick (4 Cir.), . . . F. (2d) . . . 25 U. S. L. W . 2252 

(Nov. 14, 1 9 5 6 ); the North Carolina Pupil Enrollment Act there 
involved was held by the court to contain adequate standards.



55

from contained in a companion statute. Such a statute 
is unconstitutional either because it has on its face the 
effect of depriving appellees of their liberty or property 
without due process of law or as having implied as its 
only basis for assignments the prohibited standard of 
race. See Yick Wo v. Hopkins, 118 U. S. 356, and Davis 
v. Schnell (S. D. Ala., 3-judge court), 81 F. Supp. 872, 
a ff ’d, 336 U. S. 933. Thus we need not determine whether 
the enactment of this law contemporaneously with Act 
555 and closely following the readoption of the racially 
separate schools provision of the State constitution, under 
circumstances that make it plain to all that the Assign­
ment Act too was a further effort to stave o ff the effect 
of the Supreme Court’s school decision, is sufficient of 
itself to condemn it as part of the illegal legislative plan 
comprehended in Act 555, although this is precisely the 
type of determination on which the three-judge court in 
Davis v. Schnell, supra, based its decision striking down 
an amendment to the Alabama constitution.0 Nor is it 
necessary for us to pass on the possible validity of a 
statute that would merely grant to school officials the 
power to promulgate rules of attendance, zoning of school 
population, transfers and the like, so long as all such rules 
are applied in a manner as to affect all pupils without 
regard to their race, and are not used as a mere screen 
to perpetuate compulsorily segregated schools contrary to 
the court’s order.9 10

There remains the complaint of the appellant that 
this is not truly a class action. What we have heretofore
9 See also Adkins v. Newport News School Board (E. D. V a ,) , 25 U. S. 

L. W . 2316 (Jan. 11, 1957).
1° See City of Charlottesville v. Allen, supra, and Carsen v. Warlick, 

supra.



56

said with respect to the nature of the relief sought makes 
it clear that there is no merit in this contention. Here 
is a well-defined class whose rights are sought to be 
vindicated. We think that our decisions in Lucy v, Adams 
(5th Cir.), 228 F. (2d) 619, cert, den., 351 U. S. 931, and 
Board of Supervisors of L. S. U. v. Tureaud, (5th Cir.), 
225 F. (2d) 434 (a ff ’d en banc), 228 F. (2d) 895, cert, 
den., 351 U. S. 924, by clearest implication reject appel­
lant’s contention that in such a situation the named plain­
tiffs may not bring a class action on behalf of themselves 
and all others similarly situated. See also Carter v. School 
Board of Arlington County, Va. (4th Cir.), 182 F. (2d) 
531, and Frazier v. Board of Trustees of the University of 
North Carolina, 134 F. Supp. 589, a ff ’d per curiam, 350 
U. S. 979.

Moreover, it is worthy of note that the series of 
cases generally known as the School Segregation cases11 
themselves were all class actions in the same sense as is the 
one before us.

In sum, therefore, we find no basis for the appel­
lant’s attack on the order entered by the trial court. The 
able and experienced trial judge gave full recognition to 
the administrative difficulties attendant upon changing the 
schools of the Parish of Orleans, including as it does, 
the schools of the City of New Orleans, from the estab­
lished pattern of segregation on account of race. Al­
though requiring immediate acceptance of the principle 
of non-segregated schools he allowed the Board time to put 
it into effect. Clearly implying that arrangements should 
be started at once, he nevertheless fixed the date after 
which there were to be no further distinction based on ii
ii  Brown v. Board of Education of Topeka, Kansas, supra.



57

race at “ such time as may be necessary to make arrange­
ments for admission of children to such schools on a ra­
cially non-discriminatory basis with all deliberate speed 
as required by the decision of the Supreme Court in Brown 
v. Board of Education.”

It is evident from the tone and content of the trial 
court’s order and the willing acquiescence in the delay 
by the aggrieved pupils that a good faith acceptance by 
the school board of the underlying principle of equality 
of education for all children with no classification by race 
might well warrant the allowance by the trial court of 
time for such reasonable steps in the process of deseg­
regation as appears to be helpful in avoiding unseemly 
confusion and turmoil. Nevertheless whether there is 
such acceptance by the Board or not, the duty of the 
court is plain. The vindication of rights guaranteed by 
the Constitution can not be conditioned upon the absence 
of practical difficulties. However undesirable it may be 
for courts to invoke Federal power to stay action under 
State authority, it was precisely to require such inter­
position that the Fourteenth Amendment was adopted by 
the people of the United States. Its adoption implies that 
there are matters of fundamental justice that the citizens 
of the United States consider so essentially an ingredient 
of human rights as to require a restraint on action on 
behalf of any State that appears to ignore them.

The orders of the trial court are
AFFIRMED.