Order to Draft Injunction

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION 

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EARL BENJAMIN BUSH, et al, 

Plaintiffs 

No, 3630-B 
versus 

CIVIL ACTION 

ORLEANS PARISH SCHOOL BOARD, et al. 

Defendants 

CONNIE REED, a minor, by Gerald Rener, 

her guardian and next friend, et al. 

Plaintiff-Intervenors 

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Jack Greenberg 

A, P, Tureaud 

Ernest N. Morial 

James M., Nabrit, III 

Attorneys for Plaintiffs and Plaintiff-Intervenors 

Samuel I. Rosenberg 

Attorney for Orleans Parish School Board 

WRIGHT, District Judge: 

Plaintiffs, now supported by 101 additional intervenors, petition this 

court for further relief in this tone pending Vitigation. The further relief 

requested is based on plaintiffs' allegations that the defendant, Orleans Parish 

School Board, has not complied with this court's order of May 16, 1960, with 

respect to desegregation of the public schools of New Orleans. In addition, they 

maintain that the segregated schools operated for negroes by the Board cannot 

pass the separate but equal test of Plessy v, Ferguson, 163 U,S, 537. 

For the prior history of this litigation, see Bush v, Orleans 

Parish School Board, E,D, La,, 138 F.Supp. 337, affirmed, 5 Cir., 

242 F,2d 156; id., 163 F.Supp. 701, affirmed, 5 Cir., 268 F.2d 
78; id., 187 F.Supp. 42, affirmed, 365 U.S, 569; id., 188 F.Supp. 
916, affirmed, 365 U.S. 569; id., 190 F.Supp. 861, affirmed, 
365 U.S. 569; id., 191 F.Supp. 871, affirmed, 367 U.S, 908; 
id,, 194 F.Supp. 182, affirmed, 368 U.S, 11. 



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On May 16, 1960, when the defendant failed to file a plan of desegrega- 

tion’ of the Orleans Parish schools as ordered by this court, this court filed one, 

The court's plan simply provides that beginning September, 1960, all children 

entering the first grade ney attend either the formerly all white public schools 

nearest their homes or the formerly all negro schools nearest their homes, at their 

option, There is a further provision for transfers not based on consideration of 

mRage 
The Orleans Parish School Board maintains a dual system of segregated 

schools based on Yoru. > This segregation is accomplished by dividing the city 

I geographically into negro school districts and white school districts based upon a 

the residence and race of the children attending such schools. (Gn the opening of | 

school in September, 1960, instead of complying with the court's desegregation 

order, the Board announced a testing ProTar for any first grade child electing 

a school other than the one to which he would be automatically assigned under the 

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Board's segregated system, This program involved four steps consisting of 

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On. February 15, 1956, this court ordered the School Board to desegre- 

gate the Orleans Parish public schools "with all deliberate speed." 

On July 15, 1959, after no action in compliance had been taken, the 

Board was ordered to file a desegregation plan, To date no Board plan 

has been filed and it was admitted at the hearing that submission of 

a plan is not in contemplation. This court will, therefore, continue 

to order desegregation on an ad hoc basis until an acceptable plan for 

integration of the Orleans Parish schools is forthcoming. 

The order reads: 

"IT IS ORDERED that beginning with the opening of school in 

September, 1960, all public schools in the City of New Orleans 

shall be desegregated in accordance with the following plan: 

"A, All children entering the first grade may attend either 

the formerly all white public school nearest their homes, or 

the formerly all negro public school nearest their homes, at 

their option, 

1" 

B. Children may be transferred from one school to another, 

provided such transfers are not based on consideration of 

race, 
4 

Enrollment in the Orleans Parish schools as of October 18, 1961, is 

as follows: White 37,845; Negro 55,820, 

This testing program was promulgated pursuant to the Louisiana Pupil 

Placement Act. La.R.S. 17:101 et seq. The constitutionality of the 

Act is not attacked in these proceedings. 

6 

The testing program applied only to the first grade and there only 

to children requesting "transfer.' 
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(1) a review of the "transfer' application form and verification of the informae 

tion contained therein, (2) testing of the petitioning pupils to determine 

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99.9% "scholastic aptitude, intelligence or ability" and "adequacy of pupil's academic 

preparation or readiness for admission to school or curricula," (3) "test inter- 

pretation and personal evaluation to consider’ ten listed criteria relating 

generally to education, psychology, home environment and health, and (4) a "gen- 

eral administrative review and preparation of recommendation to Orleans Parish 

School Board to consider' all of the information collected, the ''choice and 

interests’ of pupil, as well as the possibility or threat of friction or disorder 

among pupils or others, and the possibility of breach of peace or ill will or 

economic retaliation within the commnity The bulletin announcing the program ile 

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further provides that pupils permitted to transfer under these procedures and 

criteria "may be reassigned to the school to which they are assigned by virtue of 

their place of residence by order of the Orleans Parish School Board if they 

yore?” 

The announce- 
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not make satisfactory adjustment to the newly assigned situation,’ 
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ment further requires the separation of pupils by sex in each class desegregated 

under this program, 

An analysis of the test program demonstrates that the Board, instead of 

allowing children entering the first grade to make an election as to the schools 

they would attend, assigned all children to the racially segregated schools in 

their residential areas, Then, after being so assigned, each child wishing to 

exercise his right to elect pursuant to the court's plan of desegregation was sub- 

jected to the testing program. No children other than first grade were required 

7 

While these broad criteria were upheld as valid elements of a 

pupil placement law, Shuttlesworth v., Birmingham Board of 

Education, N,D, Ala,, 162 F.Supp. 372, affirmed, 358 U.S, 101, 

the application of such criteria to deny admittance or trans- 

fer on the ground of potential racial disturbance would be 

improper. Cooper v., Aaron, 358 U,S, 1, 16. See Buchanan v,. 

Warley, 245 U.S, 60, 81. 

8 

This portion of the program in effect ''repeals’ the statutory 
criteria since it leaves ultimate pupil assignment in the un- 

fettered discretion of the Board. This absence of permissible 

standards for placement sealed the fate of Louisiana's first 

pupil placement law, Bush v. Orleans Parish School Board, 

E.D, La., 138 F.Supp. 337, 341, affirmed, 5 Cir., 242 F.2d 156. 

See Thompson v. County School Board of Arlington County, E.D, 

Va., 159 F.Supp. 567, affirmed, 4 Cir., 252 F.2d 929. 



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to take the tests. Pursuant to this testing program, four negro first grade 

children out of 134 applicants were allowed to "transfer to the white schools 

nearest their homes during the school year 1960-61, and eight negro children of 

66 applying successfully overcame the hurdles of the 1961-62 testing program, 

Consequently, 12 of the 13,000~-odd negro children entering the first grade in the 

years 1960-61 and 1961-62 were admitted to and are attending 'white' schools. 

The Board maintains that it was justified in applying the pupil place- 

ment law to the desegregation order of this court in an effort to make certain 

that the children applying to "transfer'' were intellectually and psychologically 

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acceptable in the schools they sought to attend./ The Board makes no explanation { \ 
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for its failure to test all children seeking to enter the first grade, or any z 

other grade, in an effort to determine whether or not they were intellectually | VD 

and psychologically acceptable in the segregated schools to which they were auto+ 
A —— pa e 

matically assigned. This failure to test all pupils is the constitutional vice 

in the Board's testing program. However valid a pupil placement act may be on 

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its face, it may not be selectively applied. Moreover, where a school system 

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is segregated, there is no constitutional basis whatever for using a pupil 

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placement law, A pupil placement law may only be validly applied in an inte- jo 

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grated school system, and then only where no consideration is based on race. Jet 

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"The admission of thirteen Negro pupils, after a scholastic test, 
which the white children did not have to take, out of thirty-eight 

who made application for transfer, is not desegregation, nor is 

it the institution of a plan for non-racial organization of the 

Memphis school system." Northcross, et al. v. Bd. of Educ., et all 
6 Cir., F.2d (2/23/62), p.10, slip opinion, See also 

J n——— 

Mannings v., Board of Public Instruction, 5 Cir., 277 F.2d 370, 374; 
Jones v. School Board of City of Alexandria, Virginia, 4 Cir., V/ 
278 F.2d 72, 77; Dove v. Parham, 8 Cir., 282 F.2d 256, 258, 

10 

"Obviously the maintenance of a dual system of attendance areas 

based on race offends the constitutional rights of the plaintiffs 

and others similarly situated and cannot be tolerated. * * * * 

In order that there may be no doubt about the matter, the enforced 

maintenance of such a dual system is here specifically condemned. 

Jones v. School Board of City of Alexandria, Virginia, supra, 76. 

11 

Compare Gibson v, Board of Public Instruction of Dade County, 5 Cir., 

246 F.2d 913, 914; id., 272 F.2d 763, 767. 

12 
"The Pupil Assignment Law might serve some purpose in the administra- 

tion of a school system but it will not serve as a plan to convert 

a biracial system into a non-racial one," Northcross, et al. v. Bd, 

of Educ., et al.,, supra, p.6, slip opinion. See also id., P.8: 

"Since that decision [Brown v. Board of Education, 347 U.S, 483], 
there cannot be 'Negro' schools and 'white' schools. There can now 

be only schools, requirements for admission to which must be on an 

equal basis without regard to race." 

Weiler 



To assign children to a segregated school system and then require them to pass 

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muster under a pupil placement law is discrimination in its rawest form. 
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The plaintiffs, together with intervenors, also complain of the crowded 

conditions in the defendant's negro schools, as compared to the white The evi- 

dence shows that 5,540 negro elementary school children are on platoon, but no 

white. The evidence shows further that the average class size in the negro 

elementary schools is 38.3 pupils compared to 28.7 in the white, FS that the pupil-~- 

teacher ratio in the elementary schools is 36.0 to 1 for negro, 26.1 to 1 for 

white, and that negro classes are conducted in classrooms converted from stages, 

custodians' quarters, libraries and teachers' lounge rooms, while similar class- 

roo conditions do not exist in the white schools. Even under the separate but 

equal test, these inequalities may not be maintained. It would be unconscionable 

to compel negroes, 67 years after Plessy v. Ferguson, supra, to continue to submit 

14 
to these conditions, 

The Board states that in the next two or three years, when its present 

building program is completed, most of the platooning and the crowded conditions 

in the negro schools will be eliminated, But the Board's projection gives no 

facts or figures, nor does it make allowance for the increase in the school popu- 

lation to be anticipated, based on the current birth rate. The Board also sug- 

gests that in two successive elections property owners of New Orleans have voted 

down proposals for tax increases to defray the increased cost of operating the 

public schools in New Orleans, and that this failure has caused the crowded con- 

ditions in the negro schools. Whether New Orleans will have adequate public 

schools is, of course, the responsibility of her taxpayers. But whatever is 

provided, inadequate as it is, must at least be made available on an equal basis 

to all school children. 

Generations of negroes have already been denied their rights under the 

The maximum class size for elementary schools prescribed by 

the Louisiana State Board of Education is 35 pupils. As of 

October 18, 1961, in the white elementary schools 7.4 per 

cent of the regular classes had over 36 pupils, while in the 

negro elementary schools 75.6 per cent of the classes had over 

36 pupils. 

14 

See Sweatt v, Painter, 339 U.S, 629; Wilson v. Board of Super- 

visors, E,D, La., 92 F.Supp. 986, affirmed, 340 U.S. 909. 



separate but equal doctrine of Plessy v. Ferguson, supra, and, at the present pace 

Zz" 

in New Orleans, generations of negroes yet unborn will suffer a similar fate with 

respect to their rights under Brown unless desegregation and equal protection are 

secured for them by this court. 

The School Board here occupies an unenviable position, Its members, 

elected to serve without pay, have sought conscientiously, albeit reluctantly, to 

comply with the law on order of this court. Their reward for this service has 

been economic reprisal and personal recrimination from many of their constituents 

who have allowed hate to overcome their better judgment. But the plight of the 

Board cannot affect the rights of school children whose skin color is no choice 

of their own. These children have a right to accept the constitutional promise 

of equality before the law, an equality we profess to all the world, 

IT IS ORDERED that the order of this court dated May 16, 1960, be, and 

the same is hereby, amended to read as follows: 

(A) Beginning with the opening of school in September, 1962, all 

children entering, or presently enrolled in, the public elementary 

schools of New Orleans, grades 1 through 6, may attend either the 

formerly all white public schools nearest their homes or the formerly 

all negro public schools nearest their homes, at their option. 

(B) Children may be transferred from one school to another, pro- 

vided such transfers are not based on considerations of race. 

(C) As long as the defendant, Orleans Parish School Board, operates 

a dual school system based on racial segregation, the Louisiana Pupil 

Placement Act shall not be applied to any pupil. 

Injunction to be drafted by the court. 

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UNITED STATES DISTRICT JUDGE 

New Orleans, Louisiana 

April 3, 1962