League of United Latin American Citizens (LULAC) v. The Attorney General of the State of Texas Supplemental Appendix to the Petition for a Writ of Certiorari

    iatpriw (ta rt nf tljr Huitrii i>tatrB
O ctober T erm, 1960 

No. 589

1st th e

Orleans Parish S chool B oard, et al.,

Appellants,
— v .-

E arl Benjam in  B hsh , et al.,
Appellees.

a p p e a l  p r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t  p o r  t h e

EASTERN DISTRICT OP LOUISIANA, NEW ORLEANS DIVISION

MOTION TO AFFIRM

A. P. T ureaud 
A. M. T rudeau, Jr. 
E rnest M. M orial 
T hurgood M arshall 

Attorneys for Appellees

E lwood H. Chisolm 
Of Counsel



I n  the

(Hxmxt of flj? Unltxb
O ctober T eem , 1960 

No. 589

Orleans P aeish  S chool B oaed, et al.,
Appellants,

E ael B e n ja m in  B u sh , et al.,
Appellees.

APPEAL FBOM THE UNITED STATES DISTBICT COURT FOE THE 
EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS DIVISION

MOTION TO AFFIRM

Appellees move to affirm the judgment below on the 
ground that it is manifest that the questions on which the 
decision of the cause depends are so unsubstantial as not to 
need further argument.

Questions Presented

For the purposes of this motion, appellees adopt the 
questions presented by appellants at pages 3-4 of their 
Jurisdictional Statement.

Statement o f the Case

The complete history of this protracted litigation, in­
cluding a full statement of the proceedings giving rise to



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this appeal, is set out in the opinion of the court below. 
See Appellants’ Jurisdictional Statement, Appendix A 
(pp. 17 et seq.).

Reasons for Granting the Motion

Appellants, the Orleans Parish School Board, four of 
its five elected members and the Parish Superintendent 
of Schools, formally tender five questions on this appeal. 
Although the validity of “ a packet of segregation measures” 
has been variously drawn in question by four of the five 
questions presented, appellants nonetheless concede that 
“ all of the[se] statutes and resolutions . . . are patently 
unconstitutional and pose no substantial constitutional 
question” (Juris. Statement, pp. 10, 11). Such concession, 
appellees agree, is compelled by Brown v. Board of Edu­
cation, 347 U.S. 483; Id., 349 U.S. 294, 298; Cooper v. 
Aaron, 358 U.S. 1; United States v. Louisiana, 29 U.S. L. 
Week 4061 (U.S. December 12, 1960); Aaron v. McKinley, 
173 P.Supp. 944 (E.D. Ark. 1959), affirmed sub nom. 
Faubus v. Aaron, 361 U.S. 197; James v. Almond, 170 
F.Supp. 331 (E.D. Va. 1959), dismissed 359 U.S. 1006; 
James v. Duclavorth, 170 F.Supp. 342 (E.D. Va. 1959), 
affirmed 267 F.2d 224 (4th Cir. 1959), cert, denied 361 
U.S. 835.

“However,” appellants assert, “ the denial of the District 
Court of Appellants’ motion to allow it to continue the 
operation of segregated schools in the Parish of Orleans, 
while the State of Louisiana pursues its attempt to assert 
the supremacy of its sovereignty over the Federal Courts, 
does present questions which are so substantial as to re­
quire plenary consideration” (Juris. Statement, p. 11). 
Appellees submit that this question has already been settled 
by this Court in Cooper v. Aaron, supra, and therefore, is,



3

so devoid of merit that the decision below on this aspect 
of the case should also be allowed to stand without plenary 
consideration. Moreover, appellees adopt the following sec­
tion of the opinion below (Juris. Statement, Appendix A, 
pp. 37-38); and we suggest that it fully disposes of the 
argument renewed here by appellants:*

M o t io n  to  V a c a t e

The last matter presented for our consideration is 
the School Board’s plea that we postpone the effective 
date of the order compelling desegregation of first 
grade classes by November 14. The Board suggests 
that local conditions are so disturbed that orderly com­
pliance is difficult at this time, especially in view of 
its own precarious legal and financial position. All 
this may be true, but the history of this litigation 
leaves some doubt about the advisability of further 
postponing an inevitable deadline. Indeed, the date 
originally set for making a start in the direction of 
desegregation has already been postponed two months 
and it is far from clear that this delay improved con­
ditions. But, in any event, though we be persuaded of 
the School Board’s good faith, there can be no question 
of delaying still longer the enjoyment of a constitu­
tional right which was solemnly pronounced by the 
Supreme Court of the United States more than six 
years ago. As that Court itself said in rejecting a 
similar plea in Cooper v. Aaron, supra, 15-16;

“ One may well sympathize with the position of the 
Board in the face of the frustrating conditions 
which have confronted it, but, regardless of the 
Board’s good faith, the actions of the other state 
agencies responsible for these conditions compel us

* See also Bush v. Orlans Parish School Board, Civ. No. 3630, E. D. La., 
December 21, 1960.



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to reject the Board’s legal position. Had Central 
High School been under the direct management of 
the State itself, it could hardly be suggested that 
those immediately in charge of the school should 
be heard to assert their own good faith as a legal 
excuse for delay in implementing the constitutional 
rights of these respondents, when vindication of 
those rights was rendered difficult, or impossible by 
the actions of other state officials. The situation 
here is in no different posture because the members 
of the School Board and the Superintendent of 
Schools are local officials; from the point of view of 
the Fourteenth Amendment, they stand in this liti­
gation as the agents of the State.

“ The constitutional rights of respondents are not 
to be sacrificed or yielded to the violence and dis­
order which have followed upon the actions of the 
Governor and Legislature. As this Court said some 
41 years ago in a unanimous opinion in a case in­
volving another aspect of racial segregation: ‘It is 
urged that this proposed segregation will promote 
the public peace by preventing race conflicts. Desir­
able as this is, and important as is the preservation 
of the public peace, this aim cannot be accomplished 
by laws or ordinances which deny rights created or 
protected by the Federal Constitution.’ Buchanan 
v. Warley, 245 H.S. 60, 81. Thus, law and order are 
not here to be preserved by depriving the Negro 
children of their constitutional rights. The record 
before us clearly establishes that the growth of the 
Board’s difficulties to a magnitude beyond its un­
aided power to control is the product of state action. 
Those difficulties as counsel for the Board forth­
rightly conceded on the oral argument in this Court, 
can also be brought under control by state action.”



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CONCLUSION

For the foregoing reasons, the questions presented by 
appellants are clearly unsubstantial and this motion to 
affirm should be granted.

Respectfully submitted,

A. P. T ureaud 
A. M. T rudeau, Jr. 
E rnest M. M orial 
T hurgood M arshall 

Attorneys for Appellees

E lwood H. Chisolm 
Of Counsel



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