Gooden v. Mississippi State University Supplemental and Reply Brief in Support of Certiorari

    Bnpnnve (tart nt % Jinlteh nt?s
October Term, 1974 

No. 74 580

I k  th e

B e n n ie  S to n e  G ooden, et al.,
Petitioners,

v.

M is s is s ip p i S tate U n iv er sity , et al.

SUPPLEMENTAL AND REPLY BRIEF 
IN SUPPORT OF CERTIORARI

J ack  Greenberg  
J am es M. N abrit , III 
C h a rles  S t e p h e n  R alston  
N orman  C h a c h k in  
M elvyn  R . L e v e n t h a l  

10 Columbus Circle 
New York, New York 10019

F red L . B a n k s , J r .
538% North Farish Street 
Jackson, Mississippi 39202

Attorneys for Petitioners



In th e

Supreme (tart nf United States
October Term, 1974 

No. 74 580

B e n n ie  S to n e  G-ooden, et al.,
Petitioners,

v.

M is s is s ip p i S tate U n iv er sity , et al.

SUPPLEMENTAL AND REPLY BRIEF 
IN SUPPORT OF CERTIORARI

Petitioners file this Supplemental and Reply Brief in 
Support of Certiorari pursuant to Supreme Court Rules 
24 (4) & (5).

I.

Reply Brief

1. We agree with respondents that the:
appellate court succinctly stated the issue now before 
this court:

‘the single issue in this cause continues to be whether 
a controversy which would support injunctive relief 
remained after the withdrawal of the single private 
school request for the use of public facilities.’1

[Brief in Opposition, p. 5, Appeals Court Opinion, 
Pp. 25a.]

1We do, however, contest the statement that there was only “a 
single private school request.” See Pp. 14, n. 11.



2

As we demonstrate below, this critical issue is unneces­
sarily clouded by a series of supplemental arguments or 
asides advanced by respondents and the Court of Appeals.

(A) Respondents assert that the Court of Appeals prop­
erly characterized the trial court hearing as statements of 
counsel without finding’s of fact (p. 4, Brief in Opposition). 
Rule 52(a) is fully satisfied without formal findings when, 
as herein, the district court expresses with clarity the bases 
for its decision. Pp. 5-6, 13a-18a. But even if it is assumed 
that the district court acted too casually, still: a) the de­
cision below does not turn or even rely on that deficiency 
and b) the remedy therefor is not dismissal but a remand 
for further findings. See discussion in Moore’s Federal 
Practice, Vol. 5A, ]\ 52.06, p. 2705, et seq., and in particular 
pp. 2718-23.

(B) Respondents (p. 5, Brief in Opposition), rely heavily 
upon the alleged “lack of factual support for injunctive 
relief.” The pleadings confirmed the continued existence of 
an unlawful policy: private schools which discriminate on 
the basis of race were authorized and continue to be author­
ized to use public university facilities for the conduct of 
athletic contests. Defendants at the hearing before the 
district court declined to offer any proof of a change in 
that policy.2 These facts are at the foundation of the dis­
trict court’s injunctive order; and since defendants bear 
the “heavy burden” of making it “absolutely clear” that the 
“wrongful behavior could not reasonably be expected to 
recur,” [United States v. Phosphate Export Ass’n., 393 U.S. 
199, 203 (1968)], the silent record evidences a “lack of 
factual support” for a finding of mootness and reinforces 
plaintiff’s right to injunctive relief.

2 Indeed, they do not advise this Court, nor did they advise the 
Court of Appeals, of any change in policy.



3

(0) The Court of Appeals dismissed this action as moot 
because of the alleged voluntary cessation of unlawful ac­
tivity; its assertion, in footnote (Pp. 25a, n. 4), that plain­
tiffs failed to prove injury from the policy under challenge 
was therefore not discussed in the Petition. Nevertheless, 
respondents press the issue (Brief in Opposition, pp. 8-9) 
and a response is appropriate.

Respondents’ position and the appeals court suggestion 
are overwhelmed by precedent unanimously entered by this 
Court. Black children attending public schools are perhaps 
the only parties with standing to challenge, as violative of 
Equal Protection, state aid to private racially segregated 
schools.3 They have successfully done so, in behalf of all 
black school age children in a given state, in all of the tui­
tion grant cases, and more recently in cases challenging tax 
exemptions and textbook aid.4 This Court has specifically 
held that “concrete injury . . . [is] suffered” by such chil­
dren when the State violates its “constitutional obligation 
. . . [to] steer clear, not only of operating the old dual sys­
tem of racially segregated schools, but also of giving sig­
nificant aid to institutions that practice racial or other in­
vidious discrimination.” Gilmore v. City of Montgomery, 
41 L.Ed. 2d 304, 318, n. 10; Nortvood v. Harrison, 413 U.S. 
at p. 467. Accordingly, footnote 10 of Gilmore, supra, cited 
by respondents and the Court of Appeals, supports rather 
than undermines petitioners’ position: the misgivings ex­
pressed therein related to the standing of plaintiffs “to an 
action desegregating . . . city parks and recreational facil­

3 However, a suit to desegregate or gain admission to schools 
allegedly discriminatory may be best litigated by black children 
denied admission.

4 See, for example Norwood v. Harrison, 413 U.S. 455 (1973) 
and cases cited therein at page 463, n. 6, and Green v. Connolly, 
330 P. Supp. 1150, aff’d sub nom. Coit v. Green, 404 U.S 997, 
(1971).



4

ities” to challenge state aid to segregationist private 
schools; but the standing of black children in public schools 
to challenge such aid was specifically upheld.

(D) Respondents argue that the injunctive order was 
“overbroad” noting that only one university was shown 
to have acted while the order covered all institutions of 
higher learning. (Brief in Opposition, p. 8). The district 
court’s basis for awarding comprehensive injunctive relief 
was defendants’ admission that they have “plenary au­
thority” over all public institutions of higher learning. 
(Pp. 3a and 9a). The gravamen of the Complaint, as the 
Court of Appeals observed, (Pp. 24a), was the failure of 
such defendants to adopt a policy against the unlawful 
use of facilities subject to its control in the same way 
that the Mississippi Textbook Purchasing Board failed to 
adopt such a policy for the use of state textbooks in Nor­
wood v. Harrison, supra. The unlawful use at Mississippi 
State was but a symptom of the underlying state-wide 
policy. But even if the district court order is “overlfoaffid” 
then still the appropriate disposition is not dismissal of the 
entire action but instead a remand for further findings to 
determine whether the injunction should extend to institu­
tions other than Mississippi State University.

(E) Finally, respondents claim that the conduct under 
challenge was not clearly unlawful until the Court’s deci­
sion in Gilmore; Gilmore, in the district court, “was de­
cided less than a month before this action was filed.” (Brief 
in Oppostion, p. 13). We remind the Court that the policy 
under challenge, but for the district court order now va­
cated by the Court of Appeals, is still in effect.

Moreover, “it is well established that federal courts may 
enjoin any state assistance to private school organizations 
which serves to ‘impede, thwart or frustrate the execution



5

of the integration plan mandated against a public school 
district/ ” and that “the adverse effects of the creation 
of all-white private schools on public school desegregation 
have long been recognized. . . Gilmore v. City of 
Montgomery, 473 F.2d 832, 835-36, (5th Cir. 1973), citing 
Cooper v. Aaron, 358 U.S. 1 (1958), (emphasis added). 
The difficult question raised in Gilmore, and on which the 
Court granted certiorari, was whether and/or under what 
circumstances, may private racially discriminatory organi­
zations, not school affiliated, use public recreational facili­
ties. Accordingly, it is idle for respondents to claim that 
Gilmore as opposed to Brown or Cooper v. Aaron estab­
lished their action as unlawful.

II.
Supplemental Brief

1. A recent summary action by this Court well illus­
trates the difference between a finding of mootness based 
upon a change in plaintiff’s status and mootness based upon 
the cessation of unlawful activity. In Regan v. Johnson, 
S. Ct. No. 74-108, November 18, 1974 [43 L.W. 3216; 43 
L.W. 3294], the Court of Appeals held certain parole pro­
cedures violative of due process although plaintiff had 
been paroled while the case was pending on appeal; this 
Court vacated the judgment and remanded with directions 
to dismiss the case as moot. The subject matter of the ac­
tion—parole policies and procedures—was still in contro­
versy but plaintiff, once paroled, could not claim any in­
jury therefrom. Summary dismissal in the appeals court 
is appropriate in such a case, while broad discretion in, and 
a determination by the district court, is required when de­
fendant’s claim of mootness is based upon the alleged cessa­
tion of unlawful conduct.



6

2. A suit has been filed challenging Miss. Code, 1972, 
§ 47-5-91 to the extent that it authorizes, and the Mississippi 
State Penitentiary has expended funds for, tuition grants 
and transportation aid for penitentiary employees’ children 
enrolled in segregationist academies. Armstrong et al. v. 
Jack Reed, Superintendent of Parchman Penitentiary, 
et al., N.D. Miss., Civil Action No. G-C 74 118-K, November 
22, 1974. (The statute is referred to in footnote 9 of the 
Petition, page 13.)

Respectfully submitted,

J ack  Greenberg  
J am es M. N abrit , III 
Ch a r les  S t e p h e n  R alston  
N orman  C h a c h k in  
M elvyn  R . L e v e n t iia l  

10 Columbus Circle 
New York, New York 10019

F red L. B a n k s , J r .
538% N. Farish St.
Jackson, Mississippi

Attorneys for Petitioners



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