Orleans Parish School Board v. Bush Motion to Affirm No. 612

    I n the

^iipriw (tart nf tip? States
Octobeb Teem, 1960

No. 612

Orleans Parish School B oard, et al.,

Appellants,
— y .—

E arl B enjamin B ush, et al., 

—and—

Jimmie H. Davis, et al.,

Appellees,

Appellants,

Harry K. W illiams, et al.,
Appellees.

APPE A L FROM  T H E  U N IT E D  STATES D ISTRICT COURT FOR T H E  

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

MOTION TO AFFIRM

A. P. T ureaud 
A. M. T rudeau, Jr. 
T hurgood Marshall

Attorneys for Appellees
E lwood H. Chisolm

Of Counsel



In the

Supreme CUrntrt of tlje lutteft States
October Term, 1960 

No. 612

Orleans P arish School B oard, et al.,

Appellants,
-v -

E arl B enjamin B ush, et al., 

—and—■

J immie H. Davis, et al., 

Harry K. W illiams, et al.,

Appellees,

Appellants,

Appellees.

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

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

MOTION TO AFFIRM

Appellees move to affirm the judgment below on the 
ground that the questions presented for decision in the 
cause are manifestly so unsubstantial as not to need further 
argument.

Opinion Below

The opinion and judgment here on this appeal are re­
ported at 187 F.Supp. 42.



2

Questions Presented

For the purposes of this motion, appellees adopt the 
“ Questions” as presented by appellants at pages 5-7 of 
their Jurisdictional Statement.

Statement of the Case

Other aspects of the New Orleans public schools litigation 
have been brought here this Term and earlier. See Orleans 
Parish v. Bush, No. 589, October Term 1960; United States 
v. Louisiana, 5 L.ed. 2d 245; Orleans Parish School Board 
v. Bush, 242 F.2d 156 (1957), cert, denied, 354 U.S. 921; 
252 F.2d 253 (1958), cert, denied, 356 U.S. 969.

The instant appeal follows from proceedings intiated on 
August 16, 1960, by the Bush appellees on motions to add 
the Governor and Attorney General of Louisiana as parties 
defendant, for leave to file a verified supplemental com­
plaint, and for a preliminary injunction enjoining enforce­
ment of a state court injunction issued against the Orleans 
Parish School Board on the Attorney General’s applica­
tion as well as restraining him and the Governor from 
taking any further action to prevent the School Board from 
desegregating public schools in compliance with orders 
previously entered by the District Court. On the following 
day, the Williams appellants by verified complaint brought 
suit for injunctive relief against the Governor, a state 
judge, other state officials and the School Boards in addi­
tion to the appellants, claiming that the aforementioned 
state court injunction was in the teeth of the District 
Court’s desegregation order and assailing the unconstitu­
tionality of a spate of state laws which specifically or 
generally provided for the maintenance of racial segrega­
tion in public schools.



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Thereafter, on August 17, the District Court ordered the 
addition of the Governor and Attorney General as parties 
defendant and granted leave to file the supplemental com­
plaint in Bush. A  statutory three-judge District Court was 
convened because the constitutionality of state legislation 
had been assailed; and, since a preliminary injunction was 
also moved for in Williams, both motions were consolidated 
and set for hearing on August 26, 1960, at which no oral 
testimony was to be taken and the record would be made 
on affidavits and other documents.

The Attorney General appeared at the hearing, repre­
senting himself and the State Treasurer (Tr. 4) plus the 
State Superintendent of Schools (Tr. 23). In both Bush 
and Williams he filed motions to dismiss for lack of juris­
diction, for failure to state a claim on which relief could 
be granted, for a more definite statement, motions for con­
tinuance (each accompanied with supporting memoranda) 
as well as answers and a trial brief (Tr. 25-28). He also 
filed in Bush a motion to drop himself and the Governor 
as parties defendant (Tr. 26); and, in Williams, he moved 
to make District Judge Wright an additional defendant 
(Tr. 27).

Moreover, the following documents and affidavits were in­
troduced by the Attorney General: a certified copy of the 
Executive Order by which the Governor took over operation 
of the New Orleans public schools (Tr. 29); the affidavits of 
a state tropper and three employees in the Governor’s of­
fice, relating to the manner in which the Governor was 
served (Tr. 30); the affidavits of the Superintendent of the 
Orleans Parish Public Schools, two Assistant Superin­
tendents, the Director of Research and Director of Person­
nel— each alleging that compliance with the District Court’s 
desegregation order would adversely effect the operation 
of the local school systems (Tr. 30); and three affidavits by



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the Attorney General, himself, relating to the pleadings 
served upon him, the status of the state court action which 
he initiated against the School Board and his contention 
that Judge Wright was an “ interested party” (Tr. 29-30).

The School Board and Superintendent filed motions to 
dismiss and supporting memoranda in Williams (Tr. 31- 
32); and the state judge also filed both a motion to dismiss 
and a motion to quash service in Williams (Tr. 32).

Thereafter, the Bush appellees introduced certified copies 
of the Attorney General’s petition in the state court pro­
ceeding against the School Board and the opinion and 
judgment entered there (Tr. 34). The Williams appellees 
introduced an affidavit, showing the irreparable injuries 
which they and their children would suffer if the public 
schools were closed by defendants (R. 42). This affidavit 
was received over the Attorney General’s objections; and 
it was at this juncture that he withdrew from the courtroom, 
stating, “ I am not going to stay in this den of iniquity” 
(Tr. 40).

After he left, the District Court granted his staff per­
mission to withdraw (Tr. 41); it then sustained the School 
Board’s objections to certain newspaper clippings which 
the Williams appellees sought to introduce (Tr. 42-43), 
heard oral argument by counsel for appellees (48-52, 
54-69) and the School Board (Tr. 69-71) before taking the 
case under advisement (Tr. 71).

The only oral testimony taken was introduced before 
the Attorney General withdrew: it related to the Marshalls’ 
service upon the Governor (Tr. 10-12, 13-14, 16-21) and 
the Court ruled that the Attorney General could not cross- 
examine since he did not represent the person on whose 
behalf sei’vice was in issue (Tr. 14).

On August 27, 1960, the District Court filed an opinion 
and judgment for appellees (Appellants’ App. A and B,



5

pp. 1-4, 5-12; 187 F.Supp. 42). Notice of appeal was filed 
by appellants on August 30 and this Court denied their 
application for a stay on September 1.

Reasons for Granting the Motion

The congeries of questions presented by the Attorney 
General and Treasurer of Louisiana falls far short of any 
substantial merit. Indeed, by failing to treat most of them, 
especially those that concern the legislative, executive, and 
judicial acts which the District Court held unconstitutional 
and enjoined the enforcement thereof, appellants admit 
the correctness of the judgment below. Such admission, 
we submit, is compelled under a long line of decisions which 
dealt with similar efforts to frustrate desegregation in 
Little Rock and Norfolk, see Cooper v. Aaron, 358 U.S. 1; 
Aaron v. McKinley, 173 F.Supp. 944 (E.D. Ark. 1959), 
affirmed sub nom. Faubus v. Aaron, 361 U.S. 197; James 
v. Almond, 170 F.Supp. 331 (E.D. Va. 1959), dismissed 
359 U.S. 1006; James v. Duckworth, 170 F.Supp. 342 (E.D. 
Va. 1959), affirmed 267 F.2d 224 (4th Cir. 1959), cert, 
denied 361 U.S. 835; Faubus v. United States, 254 F.2d 797 
(8th Cir. 1958), cert, denied 358 U.S. 829; Thomason v. 
Cooper, 254 F.2d 808 (8th Cir. 1958), and in New Orleans, 
too. See United States v. Louisiana, 5 L.ed. 2d 245; Orleans 
Parish School Board v. Bush, 242 F.2d 156 (1957), cert, 
denied 354 U.S. 921; Id., 268 F.2d 78 (1959).

The “major questions” treated by appellants, the ones 
which they contend “ are clearly substantial” (Juris. State­
ment, p. 25), present the following claims: (1) that the 
judgment below violates the Eleventh Amendment; (2) 
that the District Court had no jurisdiction in the premises 
inasmuch as a previous order was on appeal to the Court 
of Appeals; (3) that they have not had a fair trial and 
their day in court.



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None of these claims, we submit, is so substantial as to 
require plenary consideration: the first misconceives the 
facts and the law; the second understates the law; and the 
record belies the third.

1. The thrust of appellants’ first claim is that the fourth 
paragraph of the judgment below, ordering the Orleans 
Parish School Board to comply with the order dated May 
16, 1960, requiring desegregation beginning with the first 
grade, compels affirmative state action which falls within 
the Eleventh Amendment’s prohibition of suits against the 
state.

Laying to one side the fact that this paragraph of the 
judgment commands nothing of the appellants, themselves, 
and assuming arguendo their standing to assert the claim 
of the party adversely affected, appellees say that the 
protection of individual rights under the Constitution by 
enjoining state officers from taking action beyond the 
scope of their legal powers does not trespass on what is 
forbidden by the Eleventh Amendment. The difference 
between enjoining the exercise of discretion by state offi­
cers and enjoining their violation of constitutional rights 
under authority of their office was established definitively 
over a half-century ago in Ex parte Young, 209 U.S. 123, 
159-160, and it has been followed ever since by this Court. 
See, e.g., Lane v. Watts, 234 U.S. 525, 540; Philadelphia 
Co. v. Stimson, 223 U.S. 605; Truax v. Raich, 239 U.S. 33; 
Public Service Co. v. Corboy, 250 U.S. 153; Colorado v. Toll, 
268 U.S. 228, 230; Sterling v. Constantin, 287 U.S. 378. See 
also Orleans Parish School Board v. Bush, supra, 242 F.2d 
156, 160-161, cert, denied 354 U.S. 921; School Board of 
City of Charlottesville v. Allen, 240 F.2d 59, 62-63 (4th 
Cir. 1956).

Finally, as the case last cited pointed out, at page 63:

While no such question was raised in Brown v.
Board of Education, 347 U.S. 483 . . . and 349 U.S.



7

294, . . . the question was inherent- in the record in 
those cases; and it is not reasonable that the Su­
preme Court would have directed injunctive relief 
against school boards acting as state agencies, if no 
such relief could be granted because of the provisions 
of the Eleventh Amendment to the Constitution.

2. Appellees cannot gainsay that, at the time parties 
were added and the supplemental complaint was allowed 
in Bush, the Orleans Parish School Board had noticed an 
appeal from the District Court order dated May 16, 1960, 
requiring desegregation beginning with the first grade in 
New Orleans. Neither do appellees deny that one general 
rule of federal procedure is that the filing of notice of 
appeal transfers jurisdiction of the cause from the Dis­
trict Court to the Court of Appeals. However, we say 
that it is only “ jurisdiction over the particular cause or 
matter which is transferred by perfection of an appeal, 
not the total jurisdiction of the District Court over every­
thing related to or connected with it, and especially not to 
take action compatible with the appeal.”  13 Cyc. Fed. Proc. 
§62.04, p. 683.

Clearly the action taken by the court below on motion 
of the Bush appellees was compatible with the appeal. It 
did not adjudicate substantial rights directly involved in 
the appeal of the School Board or alter the parties to 
and judgment involved, rather the orders issued against 
the Governor and these appellees—the Attorney General 
and Treasurer—were made to prevent acts which would 
have made the School Board’s appeal moot. In such cir­
cumstances, as this Court held in Newton v. Consolidated 
Gas Co., 258 U.S. 165, 177: “ Undoubtedly, after appeal, 
the trial court may, if the purpose of justice requires, 
preserve the status quo until decision by the appellate 
court [citing Havey v. McDonald, 109 U.S. 150, 157].” See 
Grant v. Phoenix Mutual Life Ins. Co., 121 U.S. 118;



8

Shinholt v. Angle, 90 F.2d 297 (5th Cir. 1937); Rule 8, 
Rules of the United States Court of Appeals for the Fifth 
Circuit. Cf. Rule 33, Rules of the United States Court of 
Appeals for the Fourth Circuit.

In addition, perfection of the appeal by the Orleans 
Parish School Board obviously did not deprive the Dis­
trict Court of jurisdiction over the separate suit brought 
by the Williams appellees. Nor would it have prevented 
an ancillary suit by the Bush appellees for the same relief 
as that granted by the May 16, 1960 judgment. Cf. Natal 
v. Louisiana, 123 U.S. 516, 518.

3. The record clearly demonstrates the lack of merit, 
if not the frivolousness, of appellants’ insistence that they 
were denied a fair and impartial trial or any other pro­
cedural due process (see the Statement of the Case, supra). 
Considering all the circumstances, it shows that no sub­
stantial right was denied; that the District Court wisely 
excluded ill-advised cross-examination and other matter; 
and that the Attorney General unwisely talked too much 
before he and his staff withdrew from the District Court.

CONCLUSION

W herefore, considering the foregoing reasons, the ques­
tions presented by appellants are manifestly unsubstantial 
and the motion to affirm should be granted.

Respectfully submitted,

A. P. T ttreatjd
A. M. Trudeau, Jr.
T hurgood M arshall

E lwood H. Chisolm  
Of Counsel

Attorneys for Appellees



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