East Baton Rouge Parish School Board v. Davis Petition for Writ of Certiorari to the US Fifth Circuit Court of Appeals

    No..

In %
&npvmv (Enurt of %  Inttefc States

October Term, 1967

East Baton Rouge Parish School Board, E t A l .,
Petitioners,

v.

Clifford Eugene Davis, Jr., E t A l .,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES FIFTH CIRCUIT COURT 

OF APPEALS

JOHN F. WARD, JR., 
Counsel For Petitioners, 

206 Louisiana Avenue 
Baton Rouge, Louisiana



i

INDEX

Statement as to consolidated record and appendices 1
PAGE

Opinions below .............................................................  3
Jurisdiction ...................................................................  4
Questions presented for R eview ...............................  4
Statutes involved........................................................... 6
Statement of the Case..................................................  7
Reasons for granting the writ

I. The prohibition of the Fourteenth Amend­
ment against State action requiring segrega­
tion does not require local school boards to af­
firmatively place certain students in certain 
schools on some percentage basis with race as 
the sole criteria for the selection of these stu­
dents ........      15
A. This Court has never said so and by im­

plication has said it does n o t .....................  15
B. Most of the other Circuits have said it does

n ot...................................................................  23
C. The Court below has heretofore said it

does n ot........................................................... 25

II. No Court should establish constitutional stan­
dards which apply to only some areas of our 
nation .............................................................    26
A. An Appellate Court should never assume 

the existence of facts, evidence of which 
are not in the Record and particularly 
where no party litigant has urged the 
existence of such fa cts .................................  26



11

III. The formalizing of detailed decrees governing
the operation of a local school system should
be left to the discretion of the trial cou rt___ 29

A. The good faith action and progress of this
school board should entitle us to a differ­
ent decree of plan than some other recal­
citrant school board elsewhere ................  29

B. Since this transition may drastically af­
fect the operation and educational quality 
of our school system, this board should 
be left relatively free to experiment in 
this area as it does in other educational 
areas ......................... .................................. . 31

C. The provision of the decree ordered by 
the Court below are unconstitutional and/  
or unnecessarily burdensome and should
be vacated_______ __________________ ___  36

D. This school board should not be bound
by the decree ordered by the Court below 
without having been formally consolidat­
ed with the other cases before the Court.... 37

IV. The Fourteenth Amendment does not require
a decision which requires a drastic social
change which, in all probability, will result
in a deteriorated public education system___ 38

A. This is particularly true when neither the 
Courts nor professional educators will 
have any control over such deterioration 
and the persons whose educational oppor­
tunities are here sought to be improved 
will actually suffer the m ost....................  38

PAGE



Ill

V. Even if it is educationally desirable to require 
a deliberate mixing of the races, religions and 
nationalities in each school, this is a matter 
for Congressional action and not judicial de­
cree .......................... .............................................  42

A. It is doubtful if Congress has constitu­
tional authority to so legislate, but even 
if Congress has such power, it has deliber­
ately refused to enact such legislation and 
has specifically prohibited same ......... . 42

VI. The Court below assume that the Fourteenth 
Amendment requires faculty desegregation 
although the only cases dealing with this sub­
ject which have reached this Court have been 
remanded for an evidentiary hearing thereon, 
which hearings have never been had..... ........ 43

Conclusion ..................................— ................ .........  49

Certificate of Service ............................................. .....  50

PAGE



CITATIONS

Avery v. Wichita Falls Independent School District 
1956, 241 F.2d 230 .............................................. 25

Bell v. School City of Gary, Indiana 324 F.2d 209 
Cert, denied 377 U.S. 924 84 S.Ct. 1223, 12 
L.Ed. 2d 2 1 6 ............................................21, 23, 26

Denzel Milton Lee v. United States of America, 322 
F.2d, 770 .... .......................................................... 26

Borders v. Rippy, 1957, 247 F.2d 268 ......................  25

Boson v. Rippy, 1960, 285 F.2d 43 ........................  25

Boynton v. Common Wealth of Virginia, 364 U.S.
454 81 S.Ct. 182, 5 L.Ed. 2d 206 ......................  17

Bradley v. School Board of City of Richmond, 345 
F.2d, 310, 382 U.S. 103 ...............................22, 43

Briggs v. Elliott, 132 F.Supp. 776 ...................... 21, 23

Brown v. Board of Education 347 U.S. 483, 74 S.Ct. 
686, 98 L.Ed. 873 .................................. .......18, 20

Burton v. Wilmington Parking Authority 365 U.S.
715 81 S.Ct. 856 6th L.Ed. 2d 4 5 ....................  17

Bush v. Orleans Parish School Board, 308 F.2d 491 8

Calhoun v. Latimer 321 F.2d 302 (5th Circuit, 
1963) ...............................................................11, 44

City of Montgomery v. Gilmore, 1960, 277 F.2d,
364 .........................................................................  25

PAGE

Clark v. Board of Education of Little Rock, 369 
F.2d, 661 ............................................................... 23



V

Cohen v. Public Housing Administration, 1958, 257 
F.2d, 73  ...............................................................  25

Cooper v. Arron  358, U.S. 1, 78 S.Ct. 1401 ............  19

Deal v. Cincinnati Board of Education 369 F.2d 55 23

East Baton Rouge Parish School Board v. Davis,
289 F.2d 380 (5th Circuit, 1961) Cert, denied 
368 U.S. 831 ......................................................... 9

Evans v. Ennis 281 F.2d 385 .....................................  23

Evers v. Jackson, 1964, 328 F.2d 408 ....................  25

Goss v. Board of Education of City of Knoxville, 
Tennessee, 373 U.S. 686, 83 S.Ct. 1405 ............ 18

Henderson v. United States 339 U.S. 816, 70 S.Ct.
843 94 L.Ed. 1302 .......................... ............ . 18

Jeffers v. Whitley 309 F.2d 621 .........................22, 23

Johnson v. Virginia 373 U.S. 61, 83 S.Ct. 1053.... 17

Lockett v. Board, of Education of Muscogeee 
County, 342 F.2d 225 (5th Circuit, 1965)..13, 25

Peterson v. City of Greenville, 373 U.S. 244, 83

PAGE

S.Ct. 1119 .........................................................17, 19

Rippy v. Borders, 1957, 257 F.2d 73 ....................  25

Rogers v. Paul 345 F.2d 117, 86 S.Ct. 358 ............ 43

Shelley v. Kraemer 334 U.S. 1, 68 S. Ct. 836 92 
L.Ed. 1161............................................................. 18



VI

Smith v. Allwright 321 U.S. 649, 64 S.Ct. 757, 88 
L.Ed. 987 ................................... ........................... 18

Springfield School Committee v. Barksdale 348 
F.2d, 261 ..... ......... ...............................................  23

Steele v. Louisville & Nashville R. Co.......................  18
Stell v. Savannah-Chatham County Board of Edu­

cation, 1964 333 F.2d 55 .................................  25
Strauder v. West Virginia 100 U.S. 303, 25 L.Ed.

664 .......................................................................... 18
Swann v. Charlotte— Mecklenburg Board of Edu­

cation 369 F.2d 29 ..............................................  23
United States, et al. v. Jefferson County Board of 

Education, et al..........F.2d ......... . ....................  15
Watson v. City of Memphis 373 U.S. 526, 83 S.Ct. 

1314 ........................................................................ 17

PAGE



No______

In to
(tart nf %  Initrft Stairs
October Term, 1967

East Baton Rouge Parish School Board, Et A l.,
Petitioners,

v.

Clifford Eugene Davis, Jr., Et A l .,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES FIFTH CIRCUIT COURT 

OF APPEALS

To the Honorable the Chief Justice and Associate Jus­
tices of the Supreme Court of the United States:

Petitioner prays that a Writ of Certiorari issue to 
review the judgment of the United States Court of Ap­
peals for the Fifth Circuit, entered in the above en­
titled case on December 29, 1966, affirmed on re-hear­
ing on March 29, 1967.

STATEMENT AS TO CONSOLIDATED RECORD 
AND APPENDIX

In the Court below this case was docketed and ar­
gued at the same time as No. 23345, United States of 
America and Linda Stout v. Jefferson County Board of



2

Education, etal., No. 23331, United States of America v. 
The Board of Education of the City of Fairfield, et al., 
No. 23335, United States of America v. The Board of 
Education of the City of Bessemer, et al., all on appeal 
from the United States District Court for the North­
ern District of Alabama and No. 23274, United States 
of America v. Caddo Parish School Board, et al., No. 
23365, United States of America v. The Bossier Par­
ish School Board, et al., No. 23173, Margaret M. John­
son, et al. v. Jackson Parish School Board, et al., No. 
23192, Yvornia Decarol Banks, et al. v. Claiborne Par­
ish School Board, et al., No. 23253, Jimmy Andrews, et 
al. v. City of Monroe, Louisiana, et al., all on appeal 
from the United States District Court for the Western 
District of Louisiana.

Although the title of this case appears on the fly 
leaf of the opinion of the Court below on re-hearing, 
along with the cases cited above, no motion to consoli­
date this case with the others has been filed by any 
party and the Court below has never entered any for­
mal order consolidating this case with the others.

The Attorney General for the State of Louisiana 
and other counsel representing the petitioning school 
boards in the cases arising from the United States 
District Court for the Western District of Louisiana, 
has prepared and filed a petition for Writ of Certiorari 
in those cases as are counsel for the Alabama school 
boards. In the interest of costs and time, under author­
ity of Rules 23(5) and 15(3) and after telephone con­
ference with the Clerk of this Court, counsel in all of 
the Louisiana cases, including the instant case, have



3

filed a consolidated record, filed with that petition. 
That petition also contains certain exhibits which 
are also applicable to this case. The record of this case 
will be found in Volume VII of the consolidated record 
filed with the joint petition filed on behalf of the other 
Louisiana school boards.

Petitioner believes the facts in its situation to be 
sufficiently different, and the application of the law 
therefore sufficiently different, to warrant its filing a 
separate petition for certiorari. Consequently, refer­
ences herein to the record and exhibits will be to 
those contained in the consolidated record and exhibits 
filed with the petition of the other Louisiana school 
boards except where noted as attached to this petition. 
That consolidated petition is entitled Caddo Parish 
School Boardl, et at., Petitioners, v. United States of 
America, Respondents, No. 256. For example, refer­
ences to the consolidated record will appear as C R
VII p....References to the exhibits in the consolidated
petition, will appear as C P exhibit A, p___References
to appendices attached to this petition will appear as 
Appendix IV, p....,

CITATIONS TO OPINIONS BELOW
The orders of the United States District Court for 

the Eastern District of Louisiana, Baton Rouge Divi­
sion are found on p. 4 through 9 and 161 through 
167 of Volume VII of the Consolidated Record. The 
original opinion of the United States Court of Appeals 
for the Fifth Circuit is found at p. 17 through 173 
of Volume VIII of the Consolidated Record. The opin­



4

ion on re-hearing is found at Pages 244 through 327 
of Volume VIII of the Consolidated Record.

JURISDICTION
The judgment of the Court of Appeals for the 

Fifth Circuit was made and entered on December 29, 
1966 and is contained in the consolidated record, Vol­
ume VIII, p. 174-179. Application for re-hearing was 
made and the same granted on February 9, 1967, 
C.R. Volume VIII, p. 237-239. The Court later 
allowed oral argument on the said re-hearing, C.R. 
Volume VIII, p. 240-242. On March 29, 1967 the 
Court issued an opinion affirming and slightly modify­
ing the original opinion, C.R., Volume VIII, p, 244- 
327 and issued its judgment in accordance therewith, 
C.R. Volume VIII, p. 328-333.

The jurisdiction of this Court is invoked under 
28 U.S.C. 1254 (1).

QUESTIONS PRESENTED FOR REVIEW
I. Does the prohibition of the Fourteenth Amend­

ment against State action requiring segregation now 
suddenly require local school boards to affirmatively 
place certain students in certain schools on some per­
centage basis with race as the sole criteria for the 
selection of these students?

A. This Court has never said so and by implica­
tion has said it does not.

B. Most of the other Circuits have said it does not.

C. The Court below has heretofore said it does 
not.



5

II. Can any Court establish constitutional stan­
dards which apply to only some areas of our nation?

A. Can an Appellate Court assume the existence 
of certain facts (in this case the causes of resi­
dential segregation) without any evidence in 
the record as to such facts and where no evi­
dentiary hearing has been held thereon at the 
District Court level?

III. Should the Appellate Courts hand down for­
malized, detailed decrees governing the operation of a 
local school system or should not this be left to the dis­
cretion of the trial court?

A. Does not good faith action and progress in 
this field by this school board justify a differ­
ent order or decree from some school board 
which has refused to move forward?

B. Since public education is historically a local 
matter and since desegregation may drastical­
ly affect any school system, should not local 
school boards be left as free as possible, un­
fettered by detailed, stereotyped decrees, to ex­
periment as much as possible in this very sen­
sitive area?

C. The provisions of the decree ordered by the 
Court below are unconstitutional and/or un­
necessarily burdensome and should be vacated.

D. This school board should not be bound by the 
decree ordered by the Court below without 
having been formally consolidated with the 
other cases before the Court.

IV. Does the prohibition of the Fourteenth Amend­
ment, as heretofore enunciated by this Court, justify or



6

require the massive and virtually immediate social 
change sought by the opinion of the Court below when 
such massive and immediate social change may result 
in a far more inadequate public education system than 
now exists?

A. Is this not particularly true when neither the 
Courts nor professional educators will have 
any control over such deterioration and the 
persons whose educational opportunities are 
here sought to be improved will actually suf­
fer the most?

V. Even if it is educationally desirable to require 
a deliberate mixing of the races, religions and national­
ities in each school, is this not a matter for Congres­
sional action and not judicial decree?

A. It is doubtful if Congress has constitutional 
authority to so legislate, but even if Congress 
has such power, it has deliberately refused to 
enact such legislation and has specifically pro­
hibited same.

VI. May the Court below assume that the Four­
teenth Amendment requires faculty desegregation 
when the only cases dealing with this subject which 
have reached this Court have been remanded for an 
evidentiary hearing thereon, which hearings have 
never been had?

CONSTITUTIONAL PROVISIONS AND FEDERAL 
STATUTES INVOLVED

Amendment XIV, Section 1 of the Constitution of 
the United States.



7

“AMENDMENT XIV.— CITIZENSHIP; PRIVI­
LEGES AND IMMUNITIES; DUE PROCESS: 
EQUAL PROTECTION

“ Section 1. All persons born or naturalized in 
the United States and subject to the jurisdiction 
thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privi­
leges or immunities of citizens of the United 
States; nor shall any State deprive any person of 
life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”
Inferentially, the Civil Rights Act of 1964 is close­

ly interwoven, therefore, the pertinent provisions there­
of will be found printed in Exhibit G of the Consoli­
dated Petition.

STATEMENT OF THE CASE
Petitioner is one of sixty-six separate school 

boards in the State of Louisiana. It has the responsibil­
ity of providing and operating an educational system 
for all the children residing in the Parish (County) of 
East Baton Rouge, Louisiana. It is administered by an 
eleven man board elected by the people of East Baton 
Rouge Parish. This board appoints a superintendent 
and other professional educators who are charged with 
the responsibility of administering the system in ac­
cordance with policies adopted by the board.

At the time this suit was originally instituted, al­
most all southern states were in the process of legally 
challenging the decision in the first Brown case. These



8

challenges continued throughout the south until this 
Court made it abundantly clear that the Brown decision 
would not be overturned or reversed. During this time, 
the State of Louisiana, as did many other southern 
states, adopted various maneuvers in an attempt to cir­
cumvent the Brown decision. These maneuvers by state 
legislatures continued through the early 1960’s. With 
respect to Louisiana, most of this maneuvering by the 
Louisiana Legislature was affirmatively stopped by 
the decision of this Court in the cases generally en­
titled Bush v. Orleans Parish School Board, 308 F.2d 
491.

However, the legislation adopted during this pe­
riod, being binding upon local school boards until de­
clared unconstitutional, effectively prevented school 
boards throughout the State of Louisiana from taking 
any affirmative steps toward compliance with the 
Fourteenth Amendment as set forth in the Brown 
decision. For example, in 1960, the Louisiana Legisla­
ture, in order to insure that the East Baton Rouge 
Parish School Board would take no affirmative action 
toward desegregation, adopted legislation increasing 
the size of the school board from 7 to 11 members and 
provided for the additional four members to be ap­
pointed by the governor. The then Governor of Lou­
isiana appointed four members to the board for the 
express purpose of constituting a majority which 
would prevent the other members of the board (the 
previous majority on the 7 man board) from taking 
any affirmative action toward compliance with the 
Brown decision.



9

On May 25, 1960 an order was entered by the 
District Court enjoining the School Board from main­
taining a segregated school system and ordering it to 
make necessary arrangements for the admission of 
all children to schools under its jurisdiction without 
regard to race. Again, because of legislative mandate, 
this decision was appealed and was affirmed by this 
Court in 1961 in East Baton Rouge Parish School 
Board v. Davis, 289 F. 2d 380 (5th Circuit, 1961), 
cert, denied 368 U.S. 831. Immediately thereafter, on 
January 22, 1962, plaintiffs filed a motion for fur­
ther relief. However, the East Baton Rouge Parish 
School Board was still in the position of having a nega­
tive majority because of the previous “ packing” of the 
board by the then state administration.

At this point, a group of business men, attorneys, 
and civic leaders filed a brief amicus curiae with the 
Federal District Court pointing out that the 4 ap­
pointed members to the board were required to stand 
for election at the end of that year. Appendix III, 69. 
They requested the Court to delay hearing on the mo­
tion for further relief until the people, white and Negro 
alike, had a chance to vote on these 4 appointed mem­
bers thereby giving some direction to the other also 
elected members of the board. The United States Dis­
trict Court, very wisely, deferred to the request of this 
group and postponed any further hearings until after 
the fall elections. Petitioner gained additional support 
when a group of local businessmen, in 1962 and again 
in 1963, published a statement of principles in the 
local newspaper. Appendix IV, p. 75, Appendix V, p.



10

77. Of course, the board also received the opposite 
type pressure and is still receiving such opposition 
today. See Appendix VIII p. 89 & 90.

At the 1962 fall elections, one of the four ap­
pointed members chose not to stand for re-election. 
The other three appointed members of the “ packed” 
board were defeated and the new board members took 
office at the last meeting of the board in December of 
that year. At that point, the East Baton Rouge Parish 
School Board was composed of 11 members, each a 
responsible citizen of his community having been 
elected by a citizenry that had indicated by the 
previous defeat of the appointed members to the 
“ packed”  board that their community was ready for 
the board to begin taking steps looking toward the 
administration of the East Baton Rouge Parish 
School system in a manner which would comply with 
the Fourteenth Amendment and the Brown decision.

The newly elected board immediately advised its 
staff to commence a study to determine the most 
practical, economical and orderly system under which 
this particular school system could comply with the 
Brown decision. The United States District Court 
also immediately assigned the motion for further relief 
for hearing, again wisely utilizing his discretion in 
giving this board sufficient time to come to the Court 
with a plan of its own rather than having the Court 
establish its own plan. His obvious reason for pre­
ferring the board to devise its own plan was that 
the only agency with the knowledge and experience to 
devise the best and most proper plan for this particular



11

school system were the people charged with its ad­
ministration, the local school board and its staff.

Thereafter, the board and its staff, after studying 
plans utilized by various other school districts through­
out the south, composed a plan consisting of parts of 
the plans then being utilized by school districts in 
other states plus some ideas of its own. This was neces­
sary because some portions of some of the plans being- 
utilized in other school districts in other states would 
not fit our own local school system, -would have created 
new and most difficult administrative problems, and 
could have resulted in less elimination of discrimina­
tion rather than more elimination of discrimination.

This was not an easy task for this school board 
and its staff, as I am sure it was not an easy task 
for any school board or staff, no matter where located. 
For example, the board had a great deal of difficulty 
in determining which year, or at what grade, to com­
mence desegregation. There was a great deal of dis­
cussion on the very pertinent point of at what age level 
could the children in the schools, both Negro and white, 
make this transition with the least damage to the 
students themselves, particularly the Negro children. 
Some board members felt the transition could better 
be made at the 12th grade level, some at the 1st grade 
level, and some even at the 5th and 6th grade level. 
However, as is true of all legislative bodies, reasonable 
men, sincerely trying to solve a difficult problem in 
the best interest of the students under their care and 
guidance, made their own beliefs secondary to the 
primary objective of moving forward and the majority



12

of the board finally decided on commencing at the 12th 
grade in accordance with the Atlanta plan as approved 
in Calhoun v. Latimer, 321 F. 2d, 302, (5th Circuit, 
1963.), a plan having rather rigid transfer procedures 
and containing certain criteria for refusal of transfer 
requests. C.R. VII p. 6, 7, & 8.

On July 18,1963 the United States District Court, 
after conferences with counsel for both plaintiffs and 
defendants, approved the plan submitted by the board 
with certain modifications imposed by the Court. 
C.R. VII p. 4-9. The board immediately put the plan 
in operation for the school year scheduled to com­
mence in only approximately 60 days and operated 
under this plan until April 19, 1965 when counsel for 
plaintiff filed two motions; a motion for further relief 
and a motion to add additional parties defendant. At 
this point the plan had proceeded downward to include 
the 12th, 11th and 10th grades.

Between 1963 and 1965, as will appear from the 
deposition and testimony of Mr. Robert J. Aertker, 
Superintendent of Schools for East Baton Rouge Par­
ish, C.R. VII p. 116 and 198, meetings were held with 
both principals and teachers to outline their respon­
sibilities in accepting the Negro children into their 
schools without trouble. Notices were sent out in ac­
cordance with the plan. In the first year of operation 
under the original 1963 order and plan, the 1963-64 
school year, 38 negro students applied for admission to 
4 previously white schools with 27 being admitted. The 
following year, 1964-65, 107 negro students applied



13

and 61 were admitted to 4 previously white schools. 
Appendix II p. 65.

On the motion for further relief, the District 
Court again properly requested the Board to present 
a plan more in line with the latest announcements of 
the circuit courts, particularly the 5th Circuit. The 
hearing on the motion for further relief was had on 
June 2, 1965 at which time the case of Lockett v. Board 
of Education of Muscogee County, 342 F. 2d 225 ( 5th 
Circuit, 1965) was the last pronouncement of the Fifth 
Circuit and the district court required the board’s plan 
to meet the minimum requirements as set forth in 
that case. These minimum requirements provided 
for the elimination of discrimination by grade in an 
upward progression from the first grade as well as 
a downward progression from the twelfth, at least two 
grades a year, and required that all grades be de­
segregated by the school year of 1968-69. The only 
deviations from the Lockett minimums which the Dis­
trict Court allowed were to permit the elimination of 
discrimination in the Junior High School grades, 7th, 
8th and 9th, at the end, the school year commencing 
September 1968, for the reason that those grades are 
the most crowded grades in all schools and the school 
board was then, and is now, under a massive program 
to eliminate these crowded conditions at the junior 
high level. The other deviation was with respect to 
permitting students coming into the East Baton Rouge 
Parish School system for the first time at a grade 
level not yet desegregated to be treated as though that 
grade level were desegregated for that child alone. The



14

court felt that this would give particular children 
from out of the system greater rights than would have 
the other children in our own system which he did not 
feel was proper.

The Board readily followed the District Court’s in­
structions and presented a modification of its exist­
ing plan in accordance with the Lockett requirements 
and this plan was approved by the District Court on 
July 15, 1965. The new 1965 plan eliminated the rigid 
transfer procedures and eliminated all criteria previ­
ously used for denying transfers. The school system 
then commenced operating under a pure freedom of 
choice system. Although we have now operated two 
years under this system, such operation is not reflected 
in the record as it was from this order of the District 
Court that plaintiffs prosecuted the present appeal. 
The following year, the 1965-66 school year, 158 ne­
gro students applied for admission to 11 previously all 
white schools and all of them entered the school of 
their choice. The following year, the 1966-67 school 
year, 226 negro students applied for admission to 10 
previously all white schools and all attended the school 
of their choice. Appendix II p. 66 and 67. The Board 
has just completed its spring pre-registration for the 
upcoming 1967-68 school year and due to the desegre­
gation of five (5) additional grades (5th, 6th, 7th, 8th 
and 9th) next year, it appears that we will have 1611 
negro students who have chosen, and will attend 37 
previously all white schools next year. Of this total, 
1298 are new registrants and 776 of those are from the 
(5) additional grades desegregated this year. We will



15

also have 12 white students entering two previously all 
Negro schools.

Furthermore, during the two year period from 
1965 to date other good faith steps were taken by 
the Board toward compliance with Brown which were 
not required by the District Court order and which 
are not reflected in the record. All teacher and princi­
pal meetings were desegregated and all in-service 
training programs were desegregated. In addition, the 
Board commenced construction of an addition to the 
School Board office building in order to bring all negro 
supervisory and Staff personnel into the School Board 
office on a desegregated basis. This building is al­
most complete and is expected to be in operation on 
a desegregated basis by September of this year. Ad­
ditional faculty desegregation will also occur this year.

REASONS FOR GRANTING THE WRIT
L

A.
The decision of the Court below in the instant 

case, if not in direct conflict with the existing opinions 
of this Court, go so far beyond any previous decision 
of this Court that they require review by this Court 
to determine if they actually conflict with Constitu­
tional principles previously stated by this Court.

The Court below says that “ The only school de­
segregation plan that meets constitutional standards is 
one that works.”  (emphasis added) U.S. et al v. Jeff. 
County Bd. of Educ., et al— Fed. 2nd— at page 7. CP



16

Exhibit L. Jefferson I, p. 7. Although the Court then 
fails to say explicitly what it means by “ one that 
works” , its references to the Civil Rights Act and HEW 
guidelines can lead to only one conclusion. Although it 
says the percentage requirements of the present HEW 
Guidelines are “ general rules of thumb” , Jefferson  I, 
supra, p. 95, failure to meet these, and unknown future 
HEW requirements obviously implies a violation of the 
Constitution.

The 1966-67 HEW Guidelines refer to a percent­
age of desegregation of 15 to 20 percent for this 
School Board for the 1967-68 school year. CP Exhibit 
I p. 146 & 147. What will be the percentage figure for 
the 1968-69 school year? If we went to a pure geograph­
ic single zone system and still did not meet the percent­
age requirements of HEW, what then? Or, suppose 
that with a pure geographic single zone system we 
did meet the HEW requirements next year, but, be­
cause of people moving out of the zones, we fell below 
the percentages the next year, what then? The only 
answer to “ one that works” , must, obviously, accord­
ing to the Court below, be the maintenance, by direct 
and forced assignment based solely on race, of a cer­
tain percentage of each race in each school. The entire 
Court, on rehearing, re-affirms this duty to balance 
the races in the schools when it says:

“ The Court holds that boards and officials ad­
ministering public schools in this circuit1 have the 
affirmative duty under the Fourteenth Amend­
ment to bring about an integrated, unitary school 
system in which there are no Negro schools and



17

no white schools— just schools. Expressiofis in our 
earlier opinions distinguishing between integra­
tion and desegregation must yield to this affirma­
tive duty we now recognize. In fulfilling this duty 
it is not enough for school authorities to offer 
Negro children the opportunity to attend former­
ly all-white schools. The necessity of overcoming 
the effects of the dual school system in this circuit 
requires integration of faculties, facilities, and 
activities, as well as students. To the extent that 
earlier decisions of this Court (more in the lan­
guage of the opinion than in the effect of the 
holding) conflict with this view, the decisions are 
overruled.” (Emphasis added) CP Exhibit L, Jef­
ferson II, p. 5.
Yet, this Court has consistently held that the 

Fourteenth Amendment only prohibits the states, 
state agencies and state officials, by legislation or ad­
ministrative action, from denying to any citizen, be­
cause of his race, any of the rights and privileges 
guaranteed by the Constitution and enjoyed by other 
citizens. In so doing this Court has held state discrimi­
nation because of race, (the denial of rights enjoyed by 
other citizens merely because of race), invalid in 
cases involving public playgrounds, Watson v. City of 
Memphis, 373 U.S. 526, 83 S.Ct. 1314 (1963); tres­
pass convictions, where local segregation ordinances 
preempt private choice, Peterson v. City of Green­
ville, 373 U.S. 244, 83 S.Ct. 1119 (1963); seating in 
courtrooms, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 
1053 (1963); restaurants in public buildings, Burton 
v. Wilmington Parking Authority, 365 U.S. 715, 81 
S.Ct. 856, 6 L.Ed. 2d 45 (1961); bus terminals, Boyn­



18

ton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 
5 L.Ed. 2d 206 (1960); railroad dining-car facilities,
Henderson v. United States, 339 U.S. 816, 70 S.Ct. 
843, 94 L.Ed. 1302 (1950); state enforcement of re­
strictive covenants based on race, Shelley v. Kraemer, 
334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); labor 
unions acting as statutory representatives of a craft, 
Steele v. Louisville & Nashville R. Co. 323 U.S. 192, 
65 S.Ct. 226, voting, Smith v. Allwright, 321 U.S. 649, 
64 S.Ct. 757, 88 L.Ed. 987 (1944); and juries, 
Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 
664 (1879).

With regard to public schools, this Court, in in­
terpreting the Fourteenth Amendment, has only said 
“ Such an opportunity, (opportunity of an education) 
where the state has undertaken to provide it, is a right 
which must be made available to all on equal terms” . 
(Emphasis added) Brown v. Board of Education, 1954, 
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. This language 
is the test of the Fourteenth Amendment— “ available 
to all on equal terms” . To say, as does the Court below, 
that to make all schools available to all students on the 
same basis is unconstitutional, is to ignore the history 
of, and judicial pronouncements of this Court on, the 
Fourteenth Amendment. It completely ignores the 
plain and explicit language of Brown, supra. In fact, 
Justice Clark in Goss v. Board of Education of City 
of Knoxville, Tennessee, 373 U.S. 686, 83 S.Ct., 1405, 
at p. 1408, in declaring invalid a “ transfer out” 
provision, refers to trespass convictions which have 
been overturned “ where local segregation ordinances



19

'preempt private choice,”  (Emphasis added), Peterson 
v. City of Greenville, 373, U.S. 244, 83 S.Ct. 1119 
(1963).

A  further indication of the requirements of the 
Fourteenth Amendment are found in Justice Clark’s 
comments at p. 1408 wherein he says:

“ Our task then is to decide whether these 
transfer provisions are likewise unconstitutional. 
In doing so, we note that if the transfer pro­
visions were made available to all students regard­
less of their race and regardless as well of the 
racial composition of the school to which he re­
quested transfer we would have an entirely dif­
ferent case. Pupils could then, at their option, (or 
that of their parents) choose, entirely free of any 
imposed racial considerations to remain in the 
school of their zone or to transfer to another. . . .”  
(Emphasis added)

There is other language to the same effect.

Cooper v. Arron, 358 U.S. 1, 78 S.Ct. 1401, is a 
further strong indication of the meaning of the Four­
teenth Amendment as it applies to public education. 
Cooper was deemed so important by the Court at that 
time that the opinion was issued under the names of 
each and every Justice of the entire court. Justice 
Frankfurter felt it to be so important that he issued 
an additional concurring opinion. This Court thor­
oughly reviewed the history of school desegregation 
and its pronouncements thereon and then, quoting 
Brown, said at page 1403:

“ On May 17, 1954 this Court decided that



20

enforced racial segregation in the public schools 
of a state is a denial of the equal protection of 
the laws enjoined by the Fourteenth Amendment. 
Brown v. Board of Education, 347 U.S. 483, 74 
S.Ct. 686.”  (Emphasis added)

Again on Page 1404, the entire Court quoted with 
approval the language of Brown saying:

“ . . . To that end, the Courts may consider 
problems related to administration arising from 
the physical condition of the school plan, the 
school transportation system, personnel, revision 
of school districts and attendance areas into com­
pact units to achieve a system of determining ad­
mission to the 'public schools on a non-racial ba­
sis, and revision of local laws and regulations 
which may be necessary in solving the foregoing 
problems . . .”  (Emphasis added)

Petitioner respectfully submits, that this school 
board has “ achieved a system” , through a freedom of 
choice plan, of “ determining admission to the pub­
lic schools on a non-racial basis” . Again, on p. 1409 
the entire Court says:

“ The controlling legal principals are plain. 
The command by the Fourteenth Amendment is 
that no ‘state’ shall deny to any person within its 
jurisdiction the equal protection of the laws . . . 
the Constitutional provision, therefore, must mean 
that no agency of the state, or of the officers or 
agents by whom its powers are exerted, shall deny 
to any person within its jurisdiction the equal 
protection of the laws . . .”  (Emphasis added)

To get the true meaning of Brown and other



21

interpretations of the Fourteenth Amendment by this 
Court, we also may look to further language of Justice 
Frankfurter in his concurring opinion in Cooper. On 
p. 1413 he says:

“ The process of ending unconstitutional ex­
clusion of pupils from the common school system 
—  common’ meaning shared alike— solely because 
of color is no doubt not an easy, overnight task in 
a few states where a drastic alteration in the 
ways of communities is involved.”  (Emphasis 
added)

Furthermore, in two cases in which the holding of 
the Circuit Court was directly contrary to the decision 
of the Court below, this Court has refused to reverse 
such holding. In Bell v. School City of Gary, (7 Cir.) 
1963, 324 F.2nd 209, Cert. den. 377 U.S. 924, 84 S.Ct. 
1223, the 7th Circuit said:

“ We agree with the argument of the defen­
dants stated as ‘There is no affirmative U.S. con­
stitutional duty to change innocently arrived at 
school attendance districts by the mere fact that 
shifts in population either increase or decrease 
the percentage of either negro or white pupils’

The Bell Court further quoted with approval Briggs 
v. Elliott, 132 F. Supp. 776 and the statement therein 
at p. 777:

“ The Constitution, in other words, does not 
require integration. It merely forbids discrimina­
tion.”

If these were not correct statements of the law, this 
Court could have said so at that time. Instead, you



22

denied certiorari. 377 U.S. 924 Again, in the case of 
Bradley v. School Board of City of Richmond, 345 
F.2d 310 (1965), reversed on other grounds 382 U.S. 
103, this court had a further opportunity to consider 
this question. The Bradley case upheld a freedom of 
choice plan. The Bradley Court said

“ It has been held again and again, however, 
that the Fourteenth Amendment prohibition is not 
against segregation as such. The proscription is 
against discrimination . . . ”

The Bradley Court further said:

“As we clearly stated in Jeffers v. Whitley, 
309 F.2d 621, 629, (Fourth Circuit, 1962), the 
Appellants are not entitled to an order requiring 
the defendants to affect a general intermixture 
of the races in the schools but they are entitled to 
an order enjoining the defendants from refusing 
admission to any school of any pupil because of 
the pupils’ race . . .”

In the Bradley case, this Court granted certiorari and 
after consideration reversed on other grounds, 382 
U.S. 103. If Bradley’s statements of the law, as quoted 
above, were incorrect, this Court could have said so at 
that time.

The opinion of the Court below, in requiring an 
affirmative duty to “ integrate” or “ correct racial 
imbalance” or “ balance the races” , goes so far beyond 
the Constitutional prohibition and the prior language 
of this Court in all its decisions, as to be in actual, if 
not direct, conflict with the decisions of this Court.



23

B.
In addition to going far beyond all existing deci­

sions of this Court, the decision of the Court below is 
in conflict with decisions of the Courts of Appeals of 
the First Circuit (Springfield School Committee v. 
Barksdale, 348 F.2d 261 (1965); the Third Circuit 
(Evans v. Ennis 281 F.2d 385, 1960); the Fourth 
Circuit (Swann v. Charlotte— Mecklenburg Board of 
Education 369 F.2d 29, 1966, Jeffers v. Whitley, 
infra, and Bradley v. School Bd. of Richmond, infra) 
the Sixth Circuit (Deal v. Cincinnati Board of Educa­
tion 369 F.2d 55, 1966) the Seventh Circuit (Bell v. 
School City of Gary, Indiana 324 F.2d 209 (1963) 
cert, denied 377 U.S. 924, 1965) the Eighth Circuit 
(Clark v. Board of Education of Little Rock 369 F.2d 
661, 1966, Re-hearing denied— 1967).

All of these cases consistently follow the doctrine 
set forth in Briggs v. Elliott, 132 F.Supp. 776, wherein 
the Court said:

“ The Constitution, in other words, does not 
require integration. It merely forbids discrimina­
tion.”

For example, in Deal, supra, the Court said:
“ Here, if there are obstacles or restrictions 

imposed on the ability of a Negro to take advan­
tage of all the choices offered by the school sys­
tem, they stem from his individual economic 
plight, or result from private, not school, preju­
dice. We read Brown as prohibiting only enforced 
segregation. . . .

We hold that there is no constitutional duty



24

on the part of the Board to bus Negro or white 
children out of their neighborhood or to transfer 
classes for the sole purpose of alleviating racial 
imbalance that it did not cause, nor is there a like 
duty to select school sites solely in furtherance of 
such a purpose.”  Emphasis added)

Or, as was said in Swann, supra:
. . Whatever the Board may do in response 

to its own initiative or that of the community, 
we have held that there is no Constitutional re­
quirement that it act with the conscious purpose 
of achieving the maximum mixture of races in 
the school population. . . .”

The recent decision of the Eighth Circuit in Clark, 
supra, in which a re-hearing was denied in April of 
this year, still reaches this conclusion when the Court 
said:

“ Though the Board has a positive duty to 
initiate a plan of desegregation, the constitution­
ality of that plan does not necessarily depend 
upon favorable statistics indicating integration of 
the races. The Constitution prohibits segregation 
of the races, the operation of a school system with 
dual attendance zones based upon race, and assign­
ment of students on the basis of race to particular 
schools. I f all of the students are, in fact, given a 
free and unhindered choice of schools, which is 
honored by the School Board, it cannot be said 
that the State is segregating the races, operating 
a school with dual attendance areas or considering 
race in the assignment of students to their class­
rooms. We find no unlawful discrimination in the 
giving of students the free choice of schools. . . 
(Emphasis added)



25

C.

Furthermore, the Court below, in one fell swoop, 
specifically overruled ten of its own decisions, none 
over ten years old and three rendered less than four 
years ago. Avery v. Wichita Falls Independent School 
District, 1956, 241 F.2d 230; Borders v. Rippy, 1957, 
247 F.2d 268; Rippy v. Borders, 1957, 257 F.2d 73; 
Cohen v. Public Housing Administration, 1958, 257 
F.2d 73; City of Montgomery v. Gilmore, 1960, 277 
F.2d 364; Boson v. Rippy, 1960, 285 F.2d 43; Stell v. 
Savannah-Chatham County Board of Education, 1964, 
333 F.2d 55; Evers v. Jackson, 1964, 328 F.2d 408; 
Lockett v. Board of Education of Muscogee County, 
1965, 342 F.2d 225. Jefferson II, page 6, footnote 3, 
CP Exhibit L p. 6. Does the meaning of our Consti­
tution really change that drastically, that fast? Or, 
is the Court below attempting to make the Constitu­
tion what Justice Frankfurter, in his concurring 
opinion in Cooper, says it is not when he said at page 
1413:

“ The Constitution is not the formulation of the 
merely personal views of this Court . .

And is not the court below justly subject to the criti­
cism expressed by Judge Cox in his dissenting opinion 
to Jefferson I, C.P. Exhibit L, Jefferson I, p. 150, when 
he said:

“ . • • This Court cannot. . .  become impatient 
as trail-blazers and rewrite the decisional law 
of this Circuit as my good friends have under­
taken to do in this case . . .”

Or the criticism expressed by Judge Hutchinson in



2 6

Denzel Milton Lee v. United States of America, 322 
F.2d 770 (C.A. 5-1963) when he said:

. . I emphatically condemn and reject the 
majority view as simply personal decreeing and, 
as such, alien to this Circuit and to the law gen­
erally and as completely unauthorized. . . .”
We respectfully submit that it is not the duty or 

the right of any Court to impose its own ideas of what 
is educationally or socially best on our many local 
communities. This is, at best, a function of Congress.

II.
A.

The Court below, apparently out of a belief that 
the South should be punished by being treated dif­
ferently than any other area of the nation, and in an 
attempt to avoid the very clear holding of the 7th 
Circuit in Bell v. School City of Gary, 324 Fd. 2d 209, 
Cert, denied 377 U.S. 924 (1965), that segregation in 
schools resulting from residential housing patterns 
was not state enforced segregation and did not violate 
the Fourteenth Amendment, has twisted the very plain 
and explicit definition of “ desegregation”  contained 
in Section 401 (b) of Title 4 of the Civil Rights Act of 
1964, an act of national application, so as to make it 
applicable only in the South.

Discrimination of such a punitive nature would be 
bad enough if imposed by Congressional action as was 
done immediately after the Civil War. Here, however, 
the court below makes it even worse by imposing it 
as minimum constitutional standards.

The Fourteenth Amendment itself provides that



27

all citizens, whether north, south, east or west, shall 
be treated alike. “ All persons born or naturalized in 
the United States and subject to the jurisdiction there­
of, are citizens of the United States and of the states 
wherein they reside. . Amendment Fourteen, Sec­
tion I of the Constitution of the United States. Our 
Constitution should apply equally to all citizens in ev­
ery section of our nation.

On the other hand, if the Court below is saying 
that the Constitution applies equally to everyone, ever- 
where, but that it has a different effect on different 
facts, the Court has assumed the existence of certain 
facts without any evidence whatsoever in the records of 
these cases to justify such assumption. Furthermore, 
to our knowledge there has never been an evidentiary 
hearing held on the question of what caused the racial 
makeup of residential housing patterns in any com­
munity of any state in our nation. The Court below 
has apparently assumed that where negroes and 
whites live in the same neighborhood in the North they 
have done so because they wanted to and conversely 
where they live in separate segregated neighborhoods 
in the North, they have also done so because they 
wanted to. Yet, for the South, the Court apparently 
assumes that where negroes and whites live in separate 
neighborhoods, it is not because they wanted to but 
because they wTere required to by law. What of the 
neighborhoods in the South where whites and negroes 
live together (and there are many) is that also the 
result of segregation laws? Again, not only was there 
not one iota of evidence in the record to justify such



28

conclusion, such proposition was not even mentioned, 
much less argued, by either plaintiffs or the govern­
ment in brief or oral argument in any of these cases 
prior to the decision in Jefferson I.

Furthermore, the Court attempts to read into the 
very explicit definition of “ desegregation” in the Civil 
Rights Act the distinction the Court wants to find by 
quoting comments of four Congressmen in hearings 
before Congress. This assumes (1) that these four 
Congressmen understood their comments as the Court 
insists on understanding them, (2) that the rest of 
the members of Congress also understood the com­
ments of these four Congressmen as the Courts insists 
on understanding them, (3) that these four Congress­
men had thoroughly read and thoroughly understood 
the Bell case and understood Bell to draw a distinc­
tion between “ de jure segregation” and “ de facto 
segregation”  and (4) that the rest of the members of 
Congress had also thoroughly read and thoroughly 
understood the holding in Bell and understood the 
comments of these four Congressmen as the Court in­
sists on doing.

However, even the statements of Senator Humph- 
rey, quoted by the Court below, do not support the 
Court’s position. On Page 81 of Jefferson the Court be­
low quotes Senator Humphrey as follows:

“ The bill does not attempt to integrate the schools, 
but it does attempt to eliminate segregation in 
the schools. The natural factors, such as density 
of population, and the distance that students will 
have to travel are considered legitimate means to



29

determine the validity of a school district, if the 
school districts are not gerrymandered, and in ef­
fect deliberately segregated. The fact that there 
is a racial imbalance per se is not something 
which is unconstitutional. That is why we have 
attempted to clarify it with the language of Sec­
tion IV.” (Emphasis added)

We respectfully submit that the Court assumes 
too much from the isolated comments of these four 
Congressmen.

III.
A.

The formal decree handed down by the Court is 
so detailed, formalized and specific that it completely 
usurps the discretionary powers of the trial court. This 
is directly contrary to the statements of this Court in 
the second Brown decision which recognized that the 
District Court, being closer to and more knowledge­
able of local situations was the proper Court to 
fashion orders and decrees in these matters. As soon 
as the application for stay order to this Court was 
refused, all of the District Courts in Louisiana felt 
legally bound to implement, word for word, the decree 
handed down by the Court below. Only the Dis­
trict Court for the Eastern District of Louisiana, 
Baton Rouge Division, felt that it had sufficient lati­
tude so as to not hand down the detailed, specific, 
word for word, decree to all of the School Boards in 
his jurisdiction. However, since the East Baton Rouge 
Parish School Board had apparently, by some ad hoc 
method, been consolidated with the other cases in-



30

volvecl in Jefferson, he did feel obligated to hand us 
the Fifth Circuit decree although he indicated in the 
opinion issued therewith that he objected strongly to 
this case being taken out of his supervisory jurisdic­
tion. Appendix I, p. 62.

Furthermore, the Court below, while in the very 
act of handing down a very specific, detailed decree, 
which has many burdensome and unnecessary pro­
visions, at the same time appears to recognize its lack of 
competency to do that very thing when it says “ School 
desegregation plans are often woefully inadequate; 
they rarely provide necessary detailed instructions 
and specific answers to the administrative prob­
lems. And most judges do not have sufficient compe­
tence— they are not educators or school administra­
tors— to know the right questions, much less the right 
answers.”  CP Exhibit L Jefferson I, p. 24. This lack 
of competence is evident from the decree itself 
which imposes financial burdens in requiring a mul­
tiplicity of reports and a multiplicity of forms all of 
which are unnecessary, the upgrading of and/or clos­
ing of certain schools, limitations on the construction 
of schools, apparent or possible limitation on transfer 
of athletes to curtail proselyting of athletes, etc. This 
lack of knowledge is a problem for a District Court 
judge who hears the testimony and sees the evidence. 
It is an impossibility for an Appellate Court who is 
reading only a dry record which, as in this case, was 
a year and one-half old at the time the Appellate Court 
had it under consideration.



31

We respectfully submit that these cases should be 
returned to the supervisory discretion of the District 
Courts who at least have some familiarity with the 
school systems under their jurisdiction and have the 
testimony and the evidence freshly before them from 
day to day.

B.

Another aspect of this matter which we feel is 
important and should be considered by this Court is 
whether or not a school board which has demonstrated 
good faith progress in attempting to comply with the 
mandate of this Court as set forth in Brown and sub­
sequent decisions should be penalized by so sweeping 
a decision, so detailed a decree, because some other 
school board in some other community, and even in 
some other state, can not demonstrate good faith 
compliance.

Because of legislative mandate, including “ pack­
ing of the board”  from 1960 through the end of 1962, 
this particular school board was hampered, if not com­
pletely prohibited, from taking any real affirmative 
steps in compliance with the Brown case and other 
decisions until 1963. However, as is shown by the rec­
ord, immediately after the “ unpacking” of the board, 
the new board, in good faith, took immediate affirma­
tive steps to eliminate discrimination in its school sys­
tem by presenting the court with a plan of desegrega­
tion which, at that time, met the standards of ail 
existing Federal Court decisions. During the operation 
of the system under that plan, it handled each incident



32

or problem that arose in an affirmative manner looking 
toward full compliance, in spirit, as well as the letter of 
the court approved plan. When incidents arose between 
Negro and white students, these incidents were han­
dled just as they had been handled for years. If it were 
possible to effectively determine the guilty student, 
that student only was punished. In cases where it was 
difficult to determine which student was actually at 
fault, it was handled just as with any other students, 
both of the students involved were disciplined.

When the question arose as to whether the Negro 
students would be permitted to play basketball together 
with the white students during physical education 
classes, the principals were advised that they would 
be permitted to do so and would be treated just as 
any other student.

When the question arose as to whether a Negro 
student would be allowed to become a member of and 
participate in the band at a previously all white school, 
the principal was advised that the student could do 
so just as any other student.

When the question arose as to whether, at senior 
high school graduation exercises, the Negro students 
would be seated together in one group on the stage, 
a meeting was held with the principals for a complete 
and candid discussion of this problem. The result of 
that meeting was that the principals were instructed 
to seat the students in alphabetical order without re­
gard to race or color. As a matter of fact, the princi­
pals themselves felt that this was the best way to



33

handle the situation, regardless of objections from 
parents of some of the white students.

At this point, the plan for East Baton Rouge 
Parish seemed to be working smoothly and accom­
plishing the desired purpose. The great majority of 
Negro parents, as well as white parents, and also 
students, appeared to be satisfied with the progress 
of the plan.

When counsel for plaintiffs filed their second 
motion for further relief in 1965, the Board, although 
it contended that our plan was adequate and working 
satisfactorily, quickly presented a modified plan meet­
ing the standards indicated by the court. Under that 
plan, all grades of the East Baton Rouge Parish School 
system would have been desegregated by the school 
year commencing September, 1968. All students, re­
gardless of race, are permitted to attend the school 
of their choice within certain boundary limitations. 
These boundaries are established because of admin­
istrative and economic considerations and apply equally 
to all children living within that district. Each district 
contains at least tw7o schools which any child in that 
district may attend. The children are notified in the 
spring of each year, primarily through their princi­
pals and teachers, that they may attend either of two 
specific schools during the next year if they so desire.

All assignment of students to buses because of 
race has been eliminated regardless of what counsel 
for plaintiffs may allege in their brief. Bus trans­
portation is one of the more costly items of the school



34

board budget. Each year, the East Baton Rouge Par­
ish School Board spends approximately $1,125,000.00 
on bus transportation. Due to this cost, buses are 
assigned routes which serve particular neighbor­
hoods and particular schools in order to keep the 
routes traveled by a bus as compact as possible in 
order to cut operating costs.

Furthermore, the board and staff, are recognizing 
their responsibilities under the mandate of the court 
and gradually, with experience, are obtaining a better 
idea of how to handle and solve the many complex 
administrative problems involved in this transition. An 
indication of this progress, given time and experience, 
is that the staff discontinued holding separate meet­
ings for the white and Negro teachers and staff and 
have almost completed construction of an addition to 
the School Board office building for the purpose of 
moving all of the Negro supervisory personnel into the 
School Board office with the white supervisory person­
nel thereby eliminating discrimination in that area. 
We believe it important to note that the desegrega­
tion of teacher and staff meetings and the bringing of 
Negro supervisory personnel into the main School Board 
office on a non-segregated basis has been done volun­
tarily and without any admonition by the Court.

In addition, all signs for rest rooms etc. delineat­
ing a distinction between Negro and white have been 
eliminated. Furthermore, any designation or distinc­
tion or use of the term white and Negro has been elimi­
nated from all forms, applications, reports etc. Com­
mencing with September of this year all grades will



35

be desegregated and all Negro or white districts elim­
inated. All districts are now designated merely as 
school attendance districts. All committees appointed 
to study school problems contain both Negro and white 
personnel.

The good faith and cooperation of this particular 
School Board has been repeatedly recognized by the 
District Court having jurisdiction. Two years ago, 
in 1965, on the hearing of the motion for further 
relief which resulted in this appeal, District Judge 
West said:

“ All right, gentlemen, I see no reason to delay, 
except in the details involved in this case, what 
the order of this Court will be. Some details will 
have to be left to the School Board to work out, 
because as I have stated on numerous occasions, 
I don’t propose to administer the school system 
of this parish. I think we have duly elected offi­
cials who are highly competent to do so, and I 
might add now, as I said a while ago and I have 
said in previous decisions, that the school board 
of this parish has been the most cooperative school 
board of any that I know, not only with this 
Court but with the colored people who have had 
any dealings with them, and they have abided by 
the Court’s orders; and this is one of the very 
few places in the United States where the parish 
school system was desegregated without so much 
as a single picket appearing on the sidewalk in 
an area that foretold of all kinds of violence be­
fore it came about, and it was done peacefully, 
it was done in a gentlemanly manner by every­
body concerned and I have commended them be-



36

fore and I commend them again. . . (C.R. VII,
p. 242.)
Since then, as pointed out above, this particular 

Board has taken additional good faith steps that were 
not required by the Ditrict Court. All of this has been 
done in spite of phone calls, letters, cross burnings and 
other harassments of the class shown by Appendix 
VIII, p. 90. Are we now to be penalized by this sweep­
ing decision and detailed decree in spite of the good 
faith cooperation and progress of this Board and its 
staff? If this is to be the reward for cooperation and 
good faith progress why should any school board any­
where cooperate or act in good faith? We are now, 
because of the decision and decree of the Court below, 
in no better position than the most recalcitrant school 
board.

C .

Since public education is a local matter and since 
Congress has not legislated with respect thereto, some 
provisions of the decree would seem to be completely 
beyond the power of a court under our system of gov­
ernment which provides for a separation of powers be­
tween the executive, judicial and legislative branches. 
Section VII of the decree of the Court below entitled 
“ New Construction,”  CP Exhibit L, Jefferson II, p. 
18, impliedly tells local school boards where they can 
and cannot build schools. If the opinion and decree 
of the Court below is allowed to stand, it is conceivable 
that some Court in the future will enjoin this School 
Board from utilizing a school or schools which are now 
in the planning stages as the construction of same may



37

have been prohibited by this decree. Section V of the 
decree, CP Exhibit L, Jefferson II, p. 16, regarding 
athletic programs, may open the doors of our schools 
to wide open proselyting of athletes even though high 
school and college athletic associations, both state and 
national, have been fighting this for years. The mailing 
of choice forms required by Section II of the decree, 
CP Exhibit L, Jefferson II, p. 8, is unnecessarily bur­
densome, both financially and physically and totally un­
necessary. The requirement that a child make an af­
firmative choice each and every year rather than only 
when entering schools or changing from elementary 
to junior high or junior high to senior high is also un­
necessary since every child has the right to change his 
choice at the beginning of any year. The report re­
quirements of Section IX and elsewhere of the decree, 
CP Exhibit L, Jefferson II, p. 17, 19 & 20, are ob­
viously designed to permit the plaintiffs, the NAACP, 
the Justice Department, and the Department of Health, 
Education and Welfare to police the administration 
of these local school systems. Requiring such reports is 
burdensome, unnecessary, and contrary to the histor­
ical concept of local control of public education.

D.
Even if this decree is allowed to stand in some 

form so as to specifically, directly and immediately 
affect the school boards whose cases were orally argued 
on the same day before the Court below, this School 
Board should not be bound by the decree of the Court 
below because it has never been properly consolidated 
with the other cases before the Court below. The United



38

States District Court for the Eastern division of Lou­
isiana, Baton Rouge Division, should be left free to 
fashion, for this School Board, what it feels is neces­
sary and proper after a full hearing thereon at the 
trial court level.

IV
A.

Heretofore, the courts in these cases have been 
dealing with the desegregation of school systems as 
operated by elected state and local officials over whom 
the courts had some control. The courts have been pri­
marily dealing with people dedicated to preserving pub­
lic education; superintendents, staff personnel, school 
board members, who would not suffer what they must 
with little or no pay, unless they were dedicated to 
public education. If, however, the opinion of the Court 
below is allowed to stand, requiring its ultimate forced 
integration or forced mixing of the races on some per­
centage basis, the Court will no longer be dealing with 
state and local officials or even dedicated public edu­
cators. The problem then will be with private individ­
ual citizens, some who care more, some who could care 
less, about public education. You will be dealing with 
their individual prides and prejudices and their result­
ing individual private discrimination. This, unfortu­
nately may very well apply to teachers as well as to 
individual parents and students.

The opinion of the Court below touches briefly on 
this facet of the problem on pages 10 and 11 of the 
opinion, CP Exhibit L Jefferson I. p. 10 & 11, but 
then blithely moves on without further consideration



39

as though mere mention of the problem affords a solu­
tion. The Court below at page 10 says:

“ We approach decision making here with humility. 
Many intelligent men of good will who have dedi­
cated their lives to 'public education are deeply 
concerned for fear that a doctrinaire approach to 
desegregating schools may lower educational stan­
dards or even destroy public schools in some 
areas. . . . The court is aware of the gravity of 
their problem. (1) Some determined opponents of 
desegregation would scuttle public education rath­
er than send their children to schools with Negro 
children. These men flee to the suburbs, reinforc­
ing urban neighborhood school patterns. (2) Pri­
vate schools, aided by state grants, have mush­
roomed in some states in this circuit. The flight of 
white children to these new schools and to estab­
lished private and parochial schools promotes re- 
segregation. (3) Many white teachers prefer not 
to teach in Negro schools. They are tempted to seek 
employment at white schools or to retire. (4) 
Many Negro children for various reasons prefer 
to finish school where they started . . . ”  (Emphasis 
added)

We certainly agree that these are grave problems, but 
we do not agree that they should then be blithely ig­
nored. When the court says “ some determined oppo­
nents of desegregation would scuttle public education 
rather than send their children to schools with Negro 
children.. . . ” , I cannot help but get the impression that 
the Court was thinking in terms of some well-known 
public figures whose anti-integration statements have 
been well publicized or perhaps members of the Ku



40

Klux Klan and the like. If this is what the court had 
in mind it is not seeing the trees for the forest.

Once the opinion of the Court below is permitted 
to stand, requiring its ultimate integration and mix­
ing of the races on some percentage basis, probably 
population, many parents (not members of the Ku 
Klux Klan, the Citizens Council or the John Birch 
Society, but moderate law abiding citizens), seeing 
their children being bussed ten or fifteen miles to a 
Negro neighborhood and a predominately Negro 
school, will, very likely, allow their personal prejudices 
to come into play. They are likely to practice that pri­
vate discrimination which the Constitution and Brown 
can not touch by taking their children out of the public 
schools and placing them in legitimate, established pri­
vate or parochial schools. Of course, this will be ex­
pensive, perhaps too expensive for any but those of the 
middle income or higher group. I f that group does, over 
the period of the next three to five years, take its 
children from our public school system, they will soon 
lose interest in voting taxes for financial support of a 
public education system which they are not using.

Many of our teachers, who may be financially 
independent because their husbands are employed, may 
refuse to go into Negro neighborhoods, at great dis­
tances from their homes, to teach in predominately 
Negro schools with predominately Negro faculties. 
They may choose to retire. With less taxes voted by 
the people for public education, the pay scale for public 
school teachers may drop far below that of private 
school teachers. This could also tend to discourage our



41

young people in college from going into the teaching 
profession or at least encourage them to seek employ­
ment in private, rather than public schools.

What will be the result of all this? The people
who cannot afford private schools, the very ones 
Brown and the Civil Rights Act were supposedly de­
signed to help, the Negro children, are left with an 
inadequately financed public education system, with in­
adequate facilities, inadequate equipment, inadequate 
supplies, and an inadequate number of even less quali­
fied teachers. And, again, an important fact is that 
this will not be the result of action by public educa­
tion or local public officials over whom the court 
can exercise some control, but the result of the pri­
vate, individual prejudices of people, which, as must 
be obvious to everyone, have not been eradicated by 
all of the opinions of all the courts of this land or 
by all the legislative enactments of Congress.

Riots, demonstrations, violation of peace and or­
der, destruction of private property, and repeated cries 
of “ black power” of certain leaders of Negro organiza­
tions, constantly harden this private prejudice. In the 
midst of these trying times, the Court below injects a 
sudden and sweeping social change which was unneces­
sary and which will only harden private individual 
prejudice and crystalize private, individual opposition.

We respectfully suggest that only time and the 
efforts of men of good will of both races can ac­
complish what the Court below is trying to accomplish 
by judicial decree.



42

We further respectfully suggest that sweeping 
decisions such as this, to which many people strongly 
object, not on the basis of race, but on the basis of their 
violence to our Constitution, not only extend the time 
element, but build a wall between men of otherwise 
good will. We believe this to be particularly true in 
this case where the Court for the first time is leaving 
the men of good will in public education and reaching 
an area of private prejudice and discrimination over 
which it has no authority and no means of controlling.

The imposition of sweeping and sudden social 
change as wrought by Jefferson will not only not al­
low, but will prevent, the ultimate realization of Jus­
tice Frankfurter’s statement in Cooper that:

“ By working together, by sharing in a com­
mon effort, men of different minds and tempers, 
even if they do not reach agreement, acquire un­
derstanding and thereby tolerance of their dif­
ferences . . . ”

V.
A.

Although certain officials of the United States 
Government, certain Congressmen, and certain educa­
tors may believe that it is educationally desirable to 
have persons of all races, creeds, religions, and na­
tional origins mixed in each school on some percent­
age basis, we respectfully submit that such proposi­
tion is not now properly before this Court.

It may be that in the future such legislation will 
be proposed to Congress at which time a fair hearing 
and debate on the merits of such proposition as to 
whether it is desirable, educationally, to compel a mix­



43

ing of the races in the schools, may be fairly heard 
and decided in the legislative halls of this nation. This 
would be a proper function of Congress, if Congress 
has power to legislate in such manner in this field. 
Only after such discussion and final passage of con­
gressional legislation adopting such proposition, could 
that proposition be before this Court. Only then would 
this Court have before it, the very real constitutional 
question of whether or not Congress has authority to 
enact such legislation. As yet, however, Congress not 
only has not so spoken but has explicitly refused to so 
speak. Civil Rights Act of 196k, Section 401(b), 407. 
CP, Exhibit G, p. 101 & 105.

VI.
The Court below has conclusively assumed that 

school faculties must also be integrated by the delib­
erate assignment of certain teachers to certain schools 
with the sole criteria for such assignment being race 
although this Court has never held that the Fourteenth 
Amendment required the deliberate assignment of 
teachers to schools because of their race. Since 1954, 
there have been only five cases in which the question 
of faculty integration was raised and discussed by 
the Appellate Court. These five cases were Bradley v. 
School Board, 345 Fd. 2d 310 (4th Circuit, 1965), 
vacated and remanded on other grounds 86 S.Ct. 224 
(1965), Rogers v. Paul, 345 Fd. 2d 117, (8th Circuit, 
1965) vacated and remanded on other grounds, 86 
S.Ct. 358 (1965), Augustus v. Board of Public In­
struction of Escambia County, Florida 306 F. 2d 862, 
Board of Public Instruction of Duval County of Florida



4 4

v. Braxton 326 F. 2d 616, Cert, denied 377 U.S. 924 
84 S.Ct. 1223 and Calhoun v. Latimer 321 F. 2d 302.

In Bradley (Fourth Circuit) and Paul (Eighth 
Circuit), the Court merely held that negro students 
had standing in Court to raise the question as to 
whether or not faculty assignments based on race vio­
lated their constitutional rights and remanded the case 
to the District Court for an evidentiary hearing there­
on. In the Escambia County case, the Fifth Circuit set 
aside an order of the trial court dismissing allegations 
in the complaint seeking to put an end to the assign­
ment of teachers and other personnel by race, holding 
that it was a matter of proper concern for the District 
Court. In the Calhoun case the Fifth Circuit held that 
the trial court did not err in postponing consideration 
of the teacher assignment question. That is exactly 
what the District Court did in the instant case. C.R. 
Volume VII, p. 246.

In the Duval County case the Fifth Circuit ap­
proved an order of the trial court prohibiting assign­
ment of teachers by race as well as prohibiting con­
struction which perpetuated, maintained or supported 
a school system operated on a racially segregated basis. 
This Court then denied certiorari. 377 U.S. 924, 84 
S.Ct. 1223.

Except for the Duval County case, the Courts, 
including this Court, had only affirmed the standing 
of Negro students to raise the question of faculty 
desegregation and their right to an evidentiary hear­
ing on that question. These evidentiary hearings, so 
for as we have been able to determine, have never



45

been held and the factual question of whether or not 
being taught by a Negro teacher is detrimental to a 
Negro student or violates his constitutional rights has 
never been determined. The dissent of Judge Jones 
in the Duval County case is particularly pertinent on 
this point as his dissent is based upon the original 
Brown decision of this Court. 326 F. 2d 616, 621. 
Only the Fifth Circuit, in only the Duval County case 
and this case, has by passed its former decisions as to 
these evidentiary hearings and assumed the proof of 
the fact without such proof having been made or such 
hearing having been held. Petitioner respectfully sub­
mits that there are practical as well as constitutional 
differences between student desegregation and faculty 
integration.

The question of ceasing to discriminate with re­
spect to teacher assignment as compared to forcibly 
integrating the teachers in the schools is a most 
difficult problem. With students, a board can utilize 
a freedom of choice plan, a unitary school district 
plan, or a combination thereof, and accomplish the 
desired result of eliminating discrimination. However, 
with teachers, we are bound by our state teacher ten­
ure law (L.R.S. 17:441, 442, 443) under which a 
teacher acquires tenure in her position after a proba­
tionary period of three years and an assistant princi­
pal or principal of a school also acquires tenure in a 
particular position after a period of probation. The 
existence of this law, some 20 odd years old, compli­
cates an already complicated problem.

Even if you attempt to accomplish teacher de­



46

segregation purely on the choice of the teachers, how 
do you justify giving a Negro teacher a position in a 
particular school being occupied by a white teacher 
who is perfectly happy in that particular job and who 
is doing an excellent job in that position. Conversely, 
how would you justify putting a white teacher into a 
school and position presently held by a Negro teacher 
who does not want to be transferred. Such procedure 
is additionally intolerable if neither teacher wants 
to be transferred.

Furthermore, is it constitutionally necessary for 
Negro children to have a white teacher when they don’t 
want a white teacher and are happy with the teacher 
they presently have? The converse would also be con­
stitutionally questionable. However, the people most af­
fected by this particular phase of the problem, are the 
teachers themselves. What are the teachers’ constitu­
tional rights. Is it constitutionally permissible for a 
court to require a board to put a particular teacher in 
a particular school when the teacher herself does not 
want to teach in that particular school and her employ­
er does not desire to put her in that particular school? 
Is this not a form of involuntary servitude?

Many teachers live close to the schools in which 
they teach and most of them, both Negro and white, 
prefer to teach in schools that are nearby. Many of our 
teachers, both Negro and white, are also mothers and 
prefer to teach in the same school that their children 
are attending or at least at a school very nearby. The 
reason for this is obvious. Transportation problems 
are less. The teacher can take her children to school



4 7

with her and bring them home with her in the after­
noon. Is this benefit to the teachers themselves to be 
discarded because of some alleged damage to stu­
dents without regard to the teachers’ wishes. Even if 
there is some damage to the students, what about the 
corresponding damage to the teacher who is arbitrarily 
up-rooted from a position she is happily holding be­
cause of some arbitrary percentage allocation im­
posed by the courts.

I can see that these problems may not be as severe 
in the area of admitting new teachers to existing va­
cancies. However, even here it would appear that the 
wishes of the teacher, Negro as well as white, should 
be taken into consideration.

Furthermore, teachers in this parish, both Negro 
and white, are represented by at least three organiza­
tions; Louisiana Teachers Association, the Classroom 
Teachers Association and Louisiana Education Asso­
ciation. Before this Court proceeds to render any final 
and binding ruling as to desegregation of teachers, 
should not these organizations be represented before 
the court to express the teacher’s view? In fact, should 
not these organizations be properly made a party de­
fendant in these suits before any decision is rendered 
affecting their future as such desegregation, or in­
tegration, might do?

As an example of the importance of this matter 
to individual teachers who are also citizens with con­
stitutional rights, we refer the Court to Appendix 
VII attached to this petition, entitled “ St. Landry



48

Teachers association— A Protest”  which was adopted 
only this month. This is the first reaction of the teach­
ers in only one parish and has been proposed for adop­
tion by the Louisiana Teachers Association.

As pointed out above, there are many additional 
problems inherent in teacher desegregation that do 
not exist with respect to student desegregation. The 
District Court in this case did not permanently refuse 
to hear evidence on this question, he merely postponed 
such hearing until a later time when the basic de­
segregation of schools with respect to students was 
further along and the School Board and staff had 
more experience and knowledge in working with these 
problems.

In view of the many practical problems involved 
in teacher desegregation, as compared to student de­
segregation, and particularly in view of what we con­
sider as grave constitutional questions as to the forcing 
of a teacher to teach in a school where she does not 
desire to teach and where her employer does not desire 
for her to teach, defendants respectfully submit that 
this Court should not require teacher desegrega­
tion at this time, and should leave this question to be 
determined by the District Courts at a more propitious 
stage of this transition after the legal and Constitu­
tional questions involved have been fully explored and 
after presentation of evidence at the trial Court level.



49

CONCLUSION
The decision of the Court below will drasti­

cally affect the future of public education in our entire 
nation. Its most drastic and immediate effect will be 
felt in the 17 so called southern and border states and 
in the large cities of the north, mid-west, west and 
east. However, this decision will also affect the life 
of every child, both Negro and white, and public educa­
tion in our nation, presumably, forever. The net affect 
of the likely deterioration of public education will be 
felt by the nation as a whole.

This nationwide importance, possible disastrous 
result, together with its apparent conflict with prin­
ciples previously stated by this Court, its obvious con­
flict with most of the opinions of the other Circuit 
Courts of Appeal, and its drastic reversal of its own 
previous decisions, necessitates a review of the opinion 
of the Court below by this Court.

For the foregoing reasons, this petition for a writ 
of certiorari should be granted.

Respectfully submitted,

JOHN F. WARD, JR., 
Counsel For Petitioner



50

CERTIFICATE OF SERVICE
I, John F. Ward, Jr., attorney for petitioner and 

a member of the Bar of the United States Supreme 
Court, do hereby certify that on this 20th day of June, 
1967,1 served copies of the foregoing petition for Writ 
of Certiorari on all attorneys for respondents by mail­
ing same, postage prepaid, to their respective offices 
as shown below:

1. Jack Greenberg, Norman Amaker & James M. 
Nabrit, III, 10 Columbus Circle, New York, 
New York 10019

2. A. P. Tureaud, 1821 Orleans Avenue, New7 
Orleans 16, La.

3. Johnnie Jones, 530 South 13 Street, Baton 
Rouge 2, Louisiana

JOHN F. WARD, JR., 
Attorney for Petitioner



51

APPENDIX I

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

BATON ROUGE DIVISION

CLIFFORD EUGENE DAVIS, JR., a minor 
by his father and next friend Clifford 
Eugene Davis, Sr., ET ALS

versus

EAST BATON ROUGE PARISH SCHOOL 
BOARD, ET AL

CIVIL ACTION 
NUMBER 1662

*  *  *

Once again this case concerning the desegrega­
tion of the public schools in the Parish of East Baton 
Rouge, Louisiana, is before the Court. On December 
29, 1966, the United States Fifth Circuit Court of 
Appeals, by a two to one decision, handed down a most 
unusual decision—-unusual because of its glaring in­
consistencies, ambiguity, and sheer unconstitutional- 
ity. I refer to the case of United States of America 
and Linda Stout, by her father and next friend, Blevin 
Stout v. Jefferson County Board of Education, et al,
________ F. 2d________ , with which six other cases
were consolidated for hearing, and hereinafter re­
ferred to as the Jefferson case. The East Baton Rouge 
Parish School case was not involved in that decision. 
But by some stroke of magic, with no motion ever



52

having been filed for consolidation, the Baton Rouge 
case suddenly appeared consolidated with the other 
seven cases when the matter came up for “ rehearing”  
before the Court sitting en banc. The en banc Court, 
by an eight to four decision, for all practical purposes 
upheld the original opinion. The dissenting opinions 
filed by Judges Gewin, Bell and Coleman clearly and 
meticulously point out the sheer absurdity and ab­
solute unconstitutionality of the majority opinion. The 
majority opinion held that “ The clock has ticked the 
last tick for tokenism and delay in the name of ‘delib­
erate speed’ .”  But what it fails to state is that the 
same clock by which that Court is apparently working 
may well have “ ticked the last tick” for true constitu­
tional government in these United States. As Judge 
Gewin so aptly stated in his dissent, the opinion of 
the majority “has no substantial legal ancestors.” 
There can, of course, be no such thing as true consti­
tutional government in the United States if the Court 
is legally permitted, as that Court has done, to de­
clare that the Constitution means one thing in seven­
teen states, and something else in the remaining 
thirty-three states. There are judges who have pub­
licly stated their belief that the United States Supreme 
Court should, in fact, function as a “ super legislative 
body”  rather than as a court in the usual sense of the 
word. The majority opinion in the Jefferson case 
strongly indicates that there are those who believe 
that this should also be the function of the Courts of 
Appeals. When, in his dissent, Judge Gewin states 
that this decision “ bends and twists the Constitution”



53

he exercises remarkable restraint. The fact is that 
the decision not only “ bends and twists”  the Constitu­
tion, it breaks and destroys it. It also defies and ig­
nores the very Acts of Congress which it professes 
to be interpreting and enforcing. It completely ignores 
the constitutional requirement of separation of powers 
between the Executive Legislative, and Judicial 
branches of the Government when it undertakes to 
legislate as it has done in this case. And when It de­
crees that school boards (in the Southern and Border 
states only) must take affirmative action to “ integrate 
students, faculties, facilities and activities” It either 
attempts to repeal, or it ignores completely the pro­
visions of the Civil Rights Act of 1964 which specifi­
cally state:

“  ‘Desegregation’ means the assignment of stu­
dents to public schools and within such schools 
without regard to their race, color, religion, or 
national origin, but ‘desegregation’ shall not mean 
the assignment of students to public schools in 
order to overcome racial imbalance.” 42 U.S.C.A. 
2GG0c-(b).

“ . . . provided that nothing herein shall empower 
any official or court of the United States to issue 
any order seeking to achieve a racial balance in 
any school by requiring the transportation of pu­
pils or students from one school to another or one 
school district to another in order to achieve such 
racial balance, or otherwise enlarge the existing 
power of the court to insure compliance with con­
stitutional standards.” 42 U.S.C.A. 2QQQc-6(a) 
( 2) .



54

The Court neatly sidesteps these specific impedi­
ments to the legality of its decision by simply stating:

. . the equitable powers of the courts exist
independently of the Civil Rights Act of 1964.”

The utter ridiculousness of the opinion as it at­
tempts to distinguish between the law as it applies 
to de jure segregation and the law as it applies to 
de facto segregation is readily apparent. The Court 
concludes that its opinion states the law only as it 
applies to the seventeen Southern and Border states—  
the states in which it says segregation is of the “ de 
jure” type rather than of the “ de facto” kind. It states 
that its opinion does not attempt to state the law as 
to the remaining thirty-three states where, it says, 
segregation is of the “ de facto”  type. It then proceeds 
to attempt to legislate an end to all segregation in 
the schools of these seventeen states, without regard 
to whether or not the segregation remaining after 
the implementation of desegregation orders is really 
de facto segregation. It even goes to the extent of 
ordering the local school boards to close certain schools 
under certain conditions, and instructing them how 
to choose locations for new schools. It is hard to recon­
cile their assertion that their opinion only applies to 
certain states, and not to others, when they say in 
another part of their opinion that “ What was true 
of an earlier Athens and an earlier Rome is true 
today: In Georgia, for example, there should not be 
one law for Athens and another law for Rome.” 
Should there be one law for Louisiana and another for



55

New York, and one law for Mississippi and another 
for Illinois?

But assuming by the use of legal doubletalk we 
could somehow conclude that under the law as it pres­
ently stands it is only de jure segregation that is 
unconstitutional, the question arises as to what is the 
status of the law in these seventeen states with regard 
to areas where segregation is maintained by choice on 
a de facto basis? Is the majority of the Court so 
oblivious of the facts as to believe that de facto segrega­
tion does not exist In areas of the South as well as in 
the North? Indeed, are they so oblivious of the facts 
as to believe that de facto segregation, that Is, segrega­
tion by choice, does not exist in this very City of Baton 
Rouge? The majority opinion states that “ The only 
school desegregation plan that meets constitutional 
standards is one that works.” Suppose the school de­
segregation plan already in operation in a given area 
is working to the extent that all students do, in fact, 
have a free and unfettered choice of the school which 
he will attend, and suppose the situation arises where 
it cannot be fairly said that there any longer exists 
“ de jure”  segregation but that segregation does con­
tinue to exist on a neighborhood, de facto, free choice 
basis. In such an event, does such an area then join 
the Northern states against whom this decision is 
not intended to operate, or does the operation of the 
statute then become enlarged to cover such de facto 
segregation simply because the area involved is located 
in one of the seventeen Southern or Border states? 
By what criteria is it to be decided when de jure



56

segregation ends and de facto segregation begins? 
Are these questions to be determined by the method 
used by the Department of Health, Education and 
W elf are in applying their so-called guidelines, or will 
the school boards be given an evidentiary hearing 
in a court of law to determine such an issue? It must 
be remembered that the school boards were not given 
such an evidentiary hearing in the present case on the 
question of whether or not the H.E.W. guidelines 
should be applied to the schools involved. That issue 
was never presented to the District Courts in which 
these cases originated, the Courts in which, according 
to law, litigation is supposed to originate. The Court 
of Appeals, sua sponte, injected this issue into the 
cases for the first time while they were supposedly 
“ on appeal”  before it. In view of this procedure, it 
would seem logical to conclude that it is now the in­
tention of the Court of Appeals to take over the func­
tion of the District Courts insofar as these school 
desegregation matters are concerned. Apparently in­
sofar, at least, as cases involving desegregation of 
schools are concerned, litigation may now start at the 
appellate level. I respectfully express my doubt of the 
wisdom of this procedure and agree with Judge Gewin 
when he says . . due process and sound judicial 
administration require, at the very least, an eviden­
tiary hearing . . .  It is unthinkable that matters that 
so vitally affect this phase of the national welfare 
should be decided in such summary fashion.”  Judge 
Bell put it another way in his dissent when he said 
that this decision of the majority amounts to an



57

“ adjudication without any semblance of due process 
of law. It is an unprecedented procedure and a shock­
ing departure from even rudimentary due process.”

The Jefferson decision is apparently the final 
step in the Fifth Circuit Court of Appeals’ determina­
tion to bring about not, as the law clearly requires, 
an end to forced segregation in public schools, but 
instead a complete, forced, total integration of the 
faces in every school. It seems to matter not that the 
Congress has specifically decreed otherwise, and it 
seems to matter not that such a result has never been 
required or suggested under the Constitution or laws 
of the United States as interpreted by the highest 
court of the land. As Judge Gewin says “ . .  . All things 
must yield to speed, uniformity, percentages, and pro­
portional representation. . . .”  The decree of the ma­
jority shows an obvious “ determination . . .  to achieve 
percentage enrollments which will reflect the kind 
of racial balance the [court] seeks to achieve.”

But this racial balance was never contemplated 
by Congress when it passed the Civil Rights Act of 
1964. In explaining the Bill to Congress, the then 
Senator Humphrey said:

“ The Bill does not attempt to integrate the 
schools . . . The fact that there is a racial im­
balance per se is not something which is uncon­
stitutional.”

But in the Jefferson case the majority of the Court 
said:

“ . . . the ‘personal and present’ right of the in-



58

dividual plaintiffs must yield to the overriding 
right of Negroes as a class to a completely in­
tegrated public education.”
This statement is difficult to understand in view 

of the fact that prior to the Jefferson case, this same 
Court, on at least nine different occasions, specifi­
cally approved the holding in the case of Briggs, et 
al v. Elliott, et al, 132 F. Supp. 776 (E.D.S.C. - 1955) 
wherein it was specifically stated that:

“ The Constitution, in other words, does not require 
integration. It merely forbids segregation.”
Now, for some strange and obscure reason, with­

out any change in the law having been made by either 
the Congress or the United States Supreme Court, the 
holding in Briggs suddenly becomes “ dictum” by 
which the Court of Appeals says it is not bound, at 
least insofar as the seventeen Southern and Border 
states are concerned. It is apparently the law else­
where, but not here. In explanation of this “ switch” 
the Court said:

“ However, as this Court’s experience in handling 
school cases increased, the Court became aware 
of the frustrating effects of Briggs.”

And then, in order to avoid the frustration involved in 
following the law as clearly stated by both the Con­
gress and the Supreme Court, the majority of the 
Court in the en banc hearing neatly sidestepped the 
whole affair by simply stating, without any legal justi­
fication whatsoever, that:

“ The Court holds that boards and officials admin­
istering public schools in this Circuit have the af­



59

firmative duty under the Fourteenth Amendment 
to bring about an integrated, unitary school sys­
tem in which there are no Negro schools and no 
white schools— just schools. Expressions in our 
earlier opinion distinguishing between integra­
tion and desegregation must yield to this affirma­
tive duty we now recognize.. . .  To the extent that 
earlier decisions of this Court . . . conflict with 
this view, the decisions are overruled.”
The conclusion now reached by the Court of Ap­

peals that the statement contained in the Briggs case 
that “ The Constitution, in other words, does not re­
quire integration. It merely forbids segregation” is 
merely dictum by which it is not bound is interesting 
indeed. I assume that if the statement in Briggs had 
been to the effect that the Constitution did require 
integration, it would also have been considered to be 
mere dictum. If so, it could, of course, have no prece­
dential value. And if such a statement in Briggs is 
dictum and not binding, then of course it must neces­
sarily follow that a similar statement of another court, 
such as the Fifth Circuit Court of Appeals is mere 
dictum and not binding upon other courts in future 
cases.

When judicial precedent and specific enactments 
of Congress can be so lightly and summarily cast 
aside, and when in their place can be substituted a 
decree whose obvious purpose, as noted by Judge 
Gewin in his dissent, is a “ determination . . .  to achieve 
percentage enrollment which will reflect the kind of 
racial balance the [court] seeks to achieve,” I can 
only say that I wholeheartedly agree with Judge



60

Hutchinson when he said in Denzel Milton Lee v. 
United States of America, 322 F. 2d 770 (CA 5—  
1963):

. . I emphatically condemn and reject the ma­
jority view as simply personal decreeing and, as 
such, alien to this Circuit and to the law generally 
and as completely unauthorized.”

It is far too late for anyone to take issue with the 
fact that the established law of the land now requires 
that there be no forced segregation in public schools. 
But it is equally well established in law that neither 
the Constitution nor the laws of the United States of 
America require forced integration of the races in 
public schools. The law is clear. It requires that public 
schools be maintained and operated, not as Negro 
schools and not as white schools, but as public schools. 
It requires nothing more nor less than that within 
the bounds of proper school administration all students 
have a free and unfettered choice of the school he 
wishes to attend, and that he has the right to be 
assigned to the school of his choice without regard 
to his race, color, religion, or national origin. If the 
plan adopted by a school system employs this criteria, 
and if the freely exercised choice of students or par­
ents results in de facto segregation, that is merely an 
example of freedom of choice in operation. It is just 
as important that one’s freedom to choose a school 
that does not happen to suit the fancy of the Court be 
protected and respected as it is to protect the rights 
of those who elect to attend the schools which the 
Court, in its infinite wisdom, thinks they should at­



61

tend. The majority opinion handed down in this ease 
gives one the impression that the Courts are the guard­
ians of the educational processes employed in this 
country. Search as I may, I have been unable to find 
authority for the assumption by the Court of such a 
duty. The primary function of the Courts is to decide 
cases and controversies— not to administer the local 
school systems. Regardless of how “ frustrated” the 
Court of Appeals may become as its experience in 
handling school cases increases, such frustration is, 
in my humble opinion, no justification for its taking 
over, “ lock, stock and barrel,”  the operation of the 
public school systems. It is one thing to adjudicate 
disputes between litigants, and it is quite another to 
carry the modern day theory of judicial activism to 
the extent demonstrated in this case.

No one will dispute the fact that, in the past, 
Negro children have been short changed when it comes 
to educational opportunity, especially in the South. 
Congress has attempted to alleviate this situation by 
the passage of various pieces of Civil Rights legisla­
tion. It is up to the Courts to interpret those Acts, 
along with the Constitution of the United States, and 
demand compliance therewith. If the legislation passed 
by Congress is inadequate then it is, of course, the pre­
rogative of Congress to change it. If the Constitution 
is inadequate, then it should be amended by proper 
constitutional process. But in neither case should this 
Court, or any other Court, take it unto themselves to 
usurp the powers and functions of Congress and to 
change the law to make it conform to the way they



62

think the law ought to be. That is what has happened 
in this case. If the law providing for an end to forced 
segregation in public schools does not work in such 
a fashion as to give every child, white and negro alike, 
an honest, opportunity to freely choose the school he 
wishes to attend, then the law should be changed by 
proper legislative procedures. It should not be changed 
by the bending and twisting process indulged in by 
the Court in this case.

When, as stated by Judge Gewin, the Constitution 
and laws of the United States can be so easily “bent 
and twisted,” it is difficult to disagree with Judge 
Bell when he says that the type of standards set by 
the Court in this case “ places school systems under 
men and not laws.”

But since the District Courts in the Fifth Circuit 
seem now to have been completely stripped of all 
discretion insofar at least as the cases directly involved 
in the Jefferson decision are concerned, and since, 
even though never consolidated by proper legal proce­
dure the East Baton Rouge Parish school case has 
somehow been included within the ambit of that deci­
sion, this Court now has no alternative but to comply 
with the mandate issued therein. That mandate says:

“ The Court reaffirms the reversal of the judg­
ments below’ and the remand of each case for  
entry of the decree attached to this opinion”

I agree with Judge Gewin when he says the effect of 
this mandate is that:

“ The effectiveness of the District Courts has been



63

seriously impaired . . . Now his (the District 
Judge’s) only functions are to order the enforce­
ment of the detailed, uniform, stereotyped formal 
decree . . . and to receive periodic reports much 
in the same fashion as reports are received by 
an ordinary clerk in a large business establish­
ment.”

So, functioning in that capacity, I herewith enter 
the “ detailed, uniform, stereotyped formal decree” 
that is attached to the majority opinion.

I concur with Judge Beil when he notes that be­
cause of the detailed character of this decree formu­
lated by the Court of Appeals it is doubtful “ that suf­
ficient latitude is left to the District Courts to adjust 
such practical difficulties as may arise under the de­
tails of the decree.”  I can only assume that the Court 
of Appeals, whose decree I enter this day, has also 
assumed the duty of interpreting, applying, and en­
forcing compliance therewith as the need arises. While 
the decree does not specifically so state, I would never­
theless assume that the Court of Appeals does intend 
to retain jurisdiction over this matter for the issuance 
of such future orders and decrees as it may in its 
judgment deem necessary and advisable.

Decree will be entered accordingly.
Baton Rouge, Louisiana, May 8, 1967.

/ s /  E. GORDON WEST 
United States District Judge



65

APPENDIX II

Number of Negroes Registered in Each White School 
For Session 1963-1964

SENIOR HIGH SCHOOLS
Grade 12

Baton Rouge High .................................  14
Glen Oaks H igh ........................................ 6
Istrouma High .......................    3
Robert E. Lee High ...............................  4

TOTAL ...........................................   27

Visiting Teacher Office 
August 21, 1963

Number of Negroes Registered in Each White School 
For Session 1964-1965

SENIOR HIGH SCHOOLS

Baton Rouge High ...

Grade
11

.....20

Grade
12
17

Total
37

Glen Oaks High ...... ..... 12 1 13
Istrouma High ........ ......  2 0 2
Robert E. Lee High ........  4 5 9

TOTAL ............. .... .38 23 61
Visiting Teacher Office 
May 18, 1964



66

Registration Figures

Elementary Schools Grade 1 Grade 2
Banks ___ _________ ...........78 ( 2)* 69 ( 2)
Dufrocq .... ................ ...........37 (13) 27 ( 3)
Lanier ..... .................. ...........71 ( 1) 67
University Terrace ............ 36 ( 6) 26 ( 2)
Westdale __________ .... ......26 ( 2) 32 ( 3)
Wyandotte ________ ...........30 ( 1) 26

TOTAL _______ ........... (25) (10)

Senior High Schools Grade 10 Grade 11 Grade 12
Baton Rouge Senior ......534(44) 450(18) 473(22)
Glen Oaks Senior___....276(10) 259( 6) 217(11)
Istrouma Senior ...... .... 582 557 509( 1)
Robert E. L e e ........... ....245( 5) 260( 1) 224( 5)

TOTAL ............. .....  (59) (25) (39)
Total Number of Negro Registrants in Grades 1, 2, 
10, 11 & 12— 158

*The number in parenthesis is included in the first num­
ber listed.

August 16, 1965-66 
ALW :bt



67

Number of Negroes Registered in Each White School 
For Session 1966-1967

ELEMENTARY
G rade G rade G rad e G rade

I II III IV T ota l

Ranks ............................ ... 3 3 4 1 11
Bufrocq ....................... ...23 14 11 13 61
Lanier .................. ....... ... 0 0 0 0 0
University T errace.... ... 7 4 1 2 14
Westdale Elementary .... 1 1 3 0 5
Wyandotte ___________ 4 4 0 5 13

TOTAL ________ ...38 26 19 21 104

SENIOR HIGH SCHOOLS
G rad e G rade  

10 11

Baton Rouge Senior High —.19 36

G rade  
12  T ota l

20 75
Glen Oaks Senior High ... 5 5 3 13
Istrouma Senior High . ... 0 0 0 0
Robert E. Lee ______ ...26 7 1 34

TOTAL .............. ...50 48 24 122

Visiting Teacher Office 
September 12, 1966



69

APPENDIX III
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 
RATON ROUGE DIVISION

CIVIL ACTION NO. 1662

CLIFFORD DAVIS, ET AL.,
Plaintiffs,

v.

EAST BATON ROUGE PARISH SCHOOL 
BOARD, ET AL.,

Defendants.

BRIEF AMICUS CUMAE

May it please the Court:

The United States Supreme Court in Shuttles- 
worth v. Birmingham Board of Education of Jefferson 
County, Alabama, 358 US 101, 79 S.Ct. 221, by per 
curiam decision, affirmed the decision of the Federal 
District Court, 162 F. Supp. 372, 384, holding that 
the Alabama School Placement Law furnishes “ the 
legal machinery for an orderly administration of the 
public schools in a constitutional manner by the ad­
mission of qualified pupils upon a basis of Individual 
merit without regard to their race or color. We must 
presume that it will be so administered.”

The Court noted that the placement law was 
“ passed in an effort to meet and solve problems pre­



70

sented by the School Segregation Cases.” (Brown v. 
Board of Education, 347 US 483, 74 S. Ct. 686 and 
Brown v. Board of Education, 349 US 294, 75 S. Ct. 
753.)

Act 259 of the Legislature of Louisiana for 1958, 
as amended, was enacted after the Shuttlesworth case 
and contains in almost exact language the factors 
guiding student assignment which were attacked but 
upheld in the Shuttlesworth case.

The Supreme Court did not direct complete and 
universal integration at once, but directed that its 
interpretation of the Constitution be given effect with 
“ all deliberate speed” . The thoughtful consideration 
of those charged with the responsibility is thus neces­
sarily involved and the primary responsibility for the 
conduct of the schools of this Parish is vested in the 
East Baton Rouge Parish School Board.

During the coming summer an election is to be 
held to choose the successors to present school board 
members, including both appointed and elected mem­
bers, and this newly chosen board that will have 
charge of the conduct of the schools for four years 
should be allowed to implement the laws under which 
the schools are to be operated, with a reasonable cer­
tainty that such implementation will stand for the 
ensuing four years instead of being subject to almost 
immediate change.

We regret the decision of the Supreme Court in



71

the Brown Case, supra. We doubt that the Supreme 
Court, having once interpreted the Constitution as 
justifying separate but equal school facilities, ought 
to have felt itself free to strike down that decision 
especially in the face of the vast expenditures made by 
the States to comply with it. Nevertheless we recognize 
the duty of Your Honor to heed the mandate of the 
Supreme Court.

We believe that the mandate to proceed with all 
“ deliberate”  speed precludes the thought that the 
Courts will order desegregation at the uncontrolled 
wishes of Complainants. On the contrary we believe 
that Courts were directed to take into consideration 
the efficiency of the educational process, the ability of 
the student, the maintenance of true educational stan­
dards and other factors of vital importance to the com­
munity. On no other basis could the Supreme Court 
have approved the Shuttlesworth decision.

We believe an attempt to place every student in an 
integrated school without regard to his needs and qual­
ifications would wreck the school system.

We believe that the interests of the community 
and its inhabitants of all races will be served by await­
ing submission of a plan from a fully elected school 
board.

Accordingly, we suggest to the Court that, in keep­
ing with the language and spirit of the Supreme Court 
decision, action herein should be deferred until 60 days



72

after the 1962 election of the East Baton Rouge Parish 
School Board.

Respectfully submitted,
/ s /  C. C. BIRD
/ s /  H. PAYNE BREAZEALE
/ s /  C. V. PORTER
/ s /  L. W. BROOKS
/ s /  BEN R. MILLER
/ s /  CALVIN E. HARDIN, JR.
/ s /  CARLOS G. SPAHT
/ s /  ROLAND C. KIZER
/ s /  F. R. BLANCHE
/ s /  G. T. OWEN, JR.
/ s /  VICTOR A. SACHSE



73

CERTIFICATE
I, one of the attorneys on the foregoing brief 

amicus curiae, certify that copies thereof have been 
served on counsel of record for the plaintiff, namely: 
A. P. Tureaud, Attorney at Law, 1821 Orleans Street, 
New Orleans, Louisiana, and upon Miss Kathleen 
Ruddell, United States Attorney for the Eastern Dis­
trict of Louisiana and also upon District Attorney 
Sargent S. Pitcher, Attorney for the East Baton 
Rouge Parish School Board, and upon Attorney Gen­
eral Jack P. F. Gremillion, Attorney General of the 
State of Louisiana, by mailing a copy thereof with 
postage prepaid to each properly addressed.

Baton Rouge, Louisiana, March 8, 1962.
/ s /  VICTOR A. SACHSE 
Victor A. Sachse



75

APPENDIX IV

Baton Rouge Committee for Public Schools
DECLARATION OF PRINCIPLES

The United States District Court has ordered the 
School Board of the Parish of East Baton Rouge to 
present a plan for the orderly desegregation of public 
schools.

Our School Board has indicated that it will obey 
this order and will present a plan to the Court. How­
ever difficult this task may be, we believe that the 
School Board will be acting wisely, and in the best 
interest of the education and safety of our children, by 
presenting such a plan.

If the School Board should fail to present a plan, 
as ordered by the Court, this would not prevent de­
segregation of the schools. In that event, the Federal 
Judge would have no choice (under established law) 
but to devise a plan for our schools.

Our School Board was elected to direct public edu­
cation and preserve our public school system. We be­
lieve that an acceptable plan, prepared by our own 
well-informed School Board, would be less disturbing 
to our community than a plan provided by the Court.

We support the School Board of this Parish for its 
dedicated and courageous service in this difficult situa­
tion.

*  *  *

Baton Rouge is now faced with the same situation 
that has recently confronted other Southern cities.



76

This Parish must now choose whether or not it will 
follow the path of law and order. What is done here 
now will determine the welfare, and the economy, of 
the entire Baton Rouge area for years to come.

We believe that the course to be followed, by our 
people and by our public officials, should be governed 
by the following principles:

1. Public education must be preserved.

Our children are entitled to a schooling un­
interrupted by violence and danger.

2. Law and order must be maintained.

This requires compliance with the final deci­
sions of our Courts. Any other course would 
result in violence and chaos.

3. The right of parents to send their children to 
private schools should be recognized.

However, we believe that a private school 
system cannot become an adequate substitute 
for the public school system.

We join together in public support of these prin­
ciples.



7 7

A DECLARATION OF PRINCIPLES 
Relative to our Urgent School Problem

Public education in Louisiana must be preserved.
The people of each parish of the State, in accor­

dance with the democratic concept of local self govern­
ment, should be free to determine the basis on which 
their schools should be operated in compliance with the 
orders of the Federal Court.

Preservation of law and order in Louisiana re­
quires compliance with the final decisions of the United 
States Supreme Court; any other course would result 
in chaos.

We believe that public education is reserved to the 
States and steps should be taken to enlist the aid and 
support of citizens throughout the nation with the view 
of eventual amendment of the constitution of the 
United States in order to preserve the right of the 
States in education.

Although the private school system cannot become 
an adequate substitute for the public school system, and 
much less supplant it, the right of parents to send 
their children to private schools should be recognized.

The time has come for the reasonable men and 
women of Louisiana to express their views and to as­
sume positions of leadership in this critical social 
problem in order that unity may be restored to our 
people.

APPENDIX V



79

NOMINATION FORM FOR THE NEA-
THOM McAN SCHOOL BOARD AWARD
Grades are a necessary adjunct to school. Grad­

ing systems come in all kinds— those using grades as 
pinpointed as “ 98”  or “ 62”  and as broad as “ S”  and 
“ U” . Students are the primary targets for grading or 
rating, but the process does not stop with them: also 
graded are schools, school systems and many school 
employees.

And even school boards can be rated.
Few grades of “ U” would be given to school 

boards anywhere, since, being an elected body, signifi­
cant public disapproval would soon result in their un­
seating. The grade given would usually be “ S” : for 
“ satisfactory.”

But some deserve an “ S”  standing for something 
more than “ satisfactory”— for, perhaps, “ special,” or 
“ superior,”  or even “ superb!”

The East Baton Rouge Parish School Board’s “ S” 
mark surely stands for this last-named quality—  
“ superb.”

Twenty-five years ago, the local school board 
represented people of a sleepy little river parish lolling 
on the banks of the Mississippi— an easy-going parish. 
Today East Baton Rouge Parish, is an emerging giant 
made up of 275,000 individuals— increasing at the 
rate of 300 new families a month. In less than a quar­
ter century, the school population has jumped from 
18,000 to 58,000; school properties from $2,600,000 to

APPENDIX VI



80

$70,812,000 in value and instructional school person­
nel from 830 to 2,591 employed.

It is easy, during a time of such tremendous ex­
pansion, for a school board trying to keep up with 
burgeoning needs to feel overburdened. Simply keep­
ing up, under the circumstances, is termed “ satisfac­
tory.”  But consider a school board under such urgent 
necessities not only keeping up with, but outpacing the 
needs. This has been the accomplishment of the East 
Baton Rouge Parish School Board. In planning, In 
administration, in support of consistent betterment 
of each facet of the educational program, they have 
excelled.

Perhaps their most clearly realized accomplish­
ment so far lies in the upgrading of salaries and of 
personnel— both in quality and in number.

Teacher-pay in Louisiana, being lower than the 
national average, results in the loss of many good 
teachers to industry, as well as loss o f good potential 
teachers to colleges other than colleges of education. 
The East Baton Rouge Parish School Board, by doing 
an outstanding job of promoting a local sales-tax in 
support of teacher-pay and various enrichment pro­
grams, in face of great opposition, was instrumental 
in a substantial local salary increase in 1966, making 
the parish a drawing-card for the better teachers in 
the area. In securing passage of the sales-tax proposal, 
board members presented two round-tables on tele­
vision, and had more than thirty individual speaking 
engagements, and also contributed substantially to the 
cost of the campaign as individuals.



81

Our local salary schedule now averages $800.00 
above the state minimum. The sales tax will yield this 
school year $4,700,000 and is expected to yield $5,381,- 
000 in 1968-69. This gives the school board a per­
manent source of revenue for upgrading the number 
and quality of teachers locally employed.

In addition to better pay, school enrichment pro­
grams have been emphasized. In 1966, East Baton 
Rouge Parish elementary schools were WITHOUT 
ONE SINGLE ELEM ENTARY LIBRARIAN. This 
year, TW ENTY-SIX NEW ELEM ENTARY LI- 
BRARIANSHIPS were created, to be followed next 
year by TW ELVE MORE, and ANOTHER TWELVE 
the next to make FIFTY. COUNSELORS increased 
from thirty-nine in 1965-66 to FIFTY-ONE in 1966- 
67, with a planned total of FIFTY ADDITIONAL 
COUNSELORS by 1967-68, several to be placed in 
elementary schools, which in 1965-66 had none.

The parish ELEMENTARY PHYSICAL EDU­
CATION program had NO certified physical educa­
tion personnel previous to 1965, but now has SIX­
TEEN, and plans for a total of FIFTY by 1969.

The ELEMENTARY AND JUNIOR HIGH 
SCHOOL MUSIC PROGRAM “ shared” a few teachers 
of music. A total of TW ELVE additional elementary 
music teachers are planned by 1969.

Additional teachers to be hired by 1968-69 in these 
four areas alone number 162.

Unlike some other states, Louisiana has no man­
datory kindergarten program. A START toward a



82

LOCAL SUMMER KINDERGARTEN program, par­
ish supported, was made in the summer of 1966. A 
SIX-WEEK PROGRAM at centrally-located elemen­
tary schools involved 244 teachers teaching 3400 stu­
dents.

Great strides are also apparent in the local 
ADULT EDUCATION PROGRAM. From 1965-66 
to ’66-67 STUDENTS INCREASED from 412 to 
1,336; TEACHERS, from 19 to 55; and CLASSES, 
from 19 to 55, while the MONEY expenditure rose 
from $4,747 to $40,000.

In order to help get the sales tax passed, the East 
Baton Rouge Parish School Board published a brochure 
explaining “ 59,000 Reasons”  (each reason, a student) 
that the local voters should support their program for 
a progressive school system. A copy is attached. Be­
cause of the tremendous effort and interest of the East 
Baton Rouge Parish School Board the goals listed in 
this brochure are fast becoming realities.

And all of this was done as the East Baton Rouge 
School Board provided leadership for integrated ef­
forts among the teachers. Negroes and Whites worked 
in close association to get this program for enrichment 
enacted. Not once did they consider so limited a goal 
as just a teacher pay raise alone. ALL the goals listed 
in the brochure were backed by ALL the teachers—  
backed not only by moral support but by financial 
support ($12,000 worth) to advertise the program. 
Leading the move toward support of the goals was the 
school board, “ digging down deep” and digging down 
FIRST to spearhead financial support.



8 3

Students— 59,000 of them— were the “ reasons” 
for the school board’s goals. The SALES TAX, in 
large measure because of the actions and interest of 
the East Baton Rouge Parish School Board, IS A 
R E A LITY ; the GOALS, again “because of the actions 
and interest of the East Baton Rouge Parish School 
Board,”  ARE FAST BECOMING REALITIES.



85

St. Landry Parish Teachers Association 
Opelousas, Louisiana

A PROTEST
We, the members of the St. Landry Parish Teach­

ers Association do hereby, protest the discriminatory 
application of guidelines written by HEW and sub­
sequent decree of the U. S. 5th Circuit Court of Ap­
peals imposed by the U. S. District Court, Western Dis­
trict of Louisiana, on the teachers of the St. Landry 
Parish School System, members of the Board, the ad­
ministrative staff and the parents and children of St. 
Landry Parish. We, herewith, set forth the grievances 
committed against us by the aforesaid guidelines and 
courts. We appeal to our governmental agencies, ex­
ecutive, legislative and judicial, and to our citizenry to 
work together to correct or eliminate these grievances:

(1) The constituted authority of the school boards 
has been superceded by HEW ’s guidelines and the 
Court Order, Civil Action 10,912. The educational ob­
jectives of the School Board are and have been nulli­
fied. The court order takes from that body the author­
ity to locate school construction where it is economically 
feasible, freedom to hire the best qualified teacher 
for a specific position, or reassign teachers where 
they can be happy and successful in their work. 
Further, it mandatorily orders that races must be 
mixed on a proportional representation of adminis­
tration, teachers, and pupils.

(2) “ Tenure of teachers in the system shall not

APPENDIX VII



8 6

be used as an excuse for failure to comply with this 
provision.” This portion of the decree summarily de­
stroys the teachers contractual rights and is ex post 
facto with respect to such rights.

(3) The voiding of contractual rights and the 
discriminatory and arbitrary reassignment of tenured 
teachers as stated in the decree, will deprive these 
teachers of financial security through relocation of 
residence, and the ancillary disruption of the families’ 
religious, social and civil connections.

(4) Any implementation of the principles of re­
assignment can only lead to early retirement of our 
most dedicated and experienced teachers, whole­
sale resignation of those not eligible for retirement, 
and the nullification and abortion of our recent re­
cruitment drives for teacher vocations. The present 
shortage of qualified teachers along with the afore­
mentioned conditions will lead to chaos and the com­
plete destruction of our school system.

(5) The purported reasons for these guidelines 
are to eliminate race as a consideration in the opera­
tion of our schools, however, the decree is self im­
molating, in that proportional assignment of teachers 
and students are mandatory.

(6) The unilateral application of non-statutory 
guidelines as issued by HEW and subsequently en­
compassed in the decree of the Fifth Circuit Court 
of Appeals is without legislative origin and the carte 
blanche extension of such guideline authority in the 
future destroys the principle of “ government insti­



87

tuted among men, deriving their just powers from the 
consent of the governed” upon which the very founda­
tion of our government was laid.

In conclusion we hold that the 14th amendment 
to the United States constitution applies to all men of 
all races and of all creeds, and regardless of previous 
condition of servitude (including teachers) and that 
our rights as employees and citizens should not be 
abrogated in an attempt to secure privileges of a partic­
ular group.



89

APPENDIX VIII

KU KLUX KLAN REPORT

ST. ANTHONY HIGH SCHOOL HAS 
WATER CUTOFF

A heart-broken integrationist priest recent­
ly announced closure of St. Anthony High 
School in Baton Rouge due to a sudden fi­
nancial crisis—responsible minded Catholics 
rejected their priest’s mixing plans and with­
drew financial support from the school. Know­
ing this action will deter mixing plans in other 
schools as well, the KKK commends those 
parents who had the fortitude to standup and 
be counted.

VIC BUSSIE DEFEATED ONCE MORE 
The AFL-CIO carpet bagger, who represents him­

self and not the men of his union, has been dealt 
another bitter defeat (along with McKeithen, Schiro, 
and Dumas) as the conservative state legislature 
turned thumbs down on urban renewal. Some repre­
sentatives say that if you want a bill defeated just 
get “ kiss-of-death”  Bussie to support it.

RED CHINA AND THE NUCLEAR BOMB 
Of the 14 Chinese scientists associated with the 

development of Red China’s nuclear bomb, 12 received 
their scientific training in foreign universities. Among 
those universities are Cambridge, University of Cali­
fornia, California Institute of Technology, Massachu­
setts Institute of Technology and Princeton.



90

A GOOD IDEA
It has been suggested that Mr. Robert Aert- 

ker, East Baton Rouge Parish Superintendent 
of Education, and his flunky school board 
members resign their positions and teach at 
Scotlandville High School this fall. The KKK 
agrees and feels sure that they will be well 
qualified. Mr. Aertker resides at 8 8 6 4  Trinity 
Avenue, Baton Rouge; his phone number is 
WA 4-1845.

TWO-TERM AMENDMENT 
It is estimated that of the total votes recently cast 

for Amendment No. 1 only 27% were actually casted 
in support of our present governor. Total cost of that 
preliminary campaign: $550,000.00, a large fraction 
of the more than $1,800,000.00 which backers have in­
vested in McKeithen.

McKEITHEN-AYCOCK DEAL 
Many conservatives were amazed and disgusted 

upon learning that Taddy Aycock was withdrawing 
from the governor’s race. Many conservatives wonder 
why Mr. Aycock was withdrawing. Could it possibly 
be for $100,000.00 cash and the understanding that 
Big John would step down in 1970 and run against 
Ellender for the U.S. Senate seat?

PREDICTION
Watch for once a week segregationist Russell Long 

to come out 100% against Big John in the governor’s 
race. Many doubt that this would help him in his own 
endeavors— he’s too far gone.
B-968, 6-67