Orleans Parish School Board v. Bush Brief for Appellees

    lulled flutes CEnurl of Appeals
Fifth Circuit

No. 16190

ORLEANS PARISH SCHOOL BOARD,
Appellant,

versus

EARL BENJAMIN BUSH, ET AL„
Appellees.

A ppeal from the District Court of the United States, 
E astern D istrict of L ouisiana

BRIEF FOR APPELLEES

A. P. T ureaud,
A. M. Trudeau, Jr.,

1821 Orleans Avenue 
New Orleans, Louisiana

R obert L. Carter,
T hurgood Marshall,

107 West 43rd Street 
New York 36, New York

Attorneys for Appellees

S upreme P rinting Co., I nc., 114 W orth Street, N. Y„ BE ekm an  3-2320



States ©nurt ni Appeals
Fifth Circuit

No. 16190

----- ------- ----------o------------------ -—
Orleans Parish School B oard,

Appellant,

versus

E arl Benjamin B ush Et Al.,
Appellees.

A ppeal from the D istrict Court of the United States, 
E astern D istrict of L ouisiana

-----------——---- o---------------------

BRIEF FOR APPELLEES

Statement

The constitutional and legal questions in this ease are 
quite uncomplicated, and there is no question hut that the 
concepts of law which must be applied to their determina­
tion make it mandatory that the judgment of the court 
below be affirmed.

Appellant seeks in its comprehensive brief to transform 
the elementary questions inherent in this case into com­
plex problems of formidable proportions. But the issues 
are just not susceptible to treatment of that sort. All that 
is involved in this case is whether the principles enunciated 
by the United States Supreme Court in its two decisions 
in Brown v. Board of Education, 347 U. S. 483, and 349 
IT. S. 294, are applicable to the Orleans Parish Public School



System when the equitable jurisdiction of the court below 
is invoked by residents of Louisiana claiming an invasion 
of rights and privileges secured under the Constitution of 
the United States. That and that alone is all this case 
is about.

In November, 1951, appellees had petitioned the appel­
lant school board to reorganize the public schools of the 
Parish so as to discontinue discrimination on account of 
race (R. 44-45). This was denied (E. 45), and an appeal 
was taken to the State Board of Education where it was 
also denied (E. 46).

A complaint against the school board was filed in the 
court below in 1952. Contrary to appellant’s assertion, an 
examination of the original complaint discloses that it 
raised questions concerning the constitutionality of segre­
gation per se, as well as alleged a denial of constitutional 
rights by virtue of the various inequalities in physical 
facilities which appellant permitted to exist in respect to 
its operation of segregated schools for Negro children. 
Pursuant to agreement among counsel the cause was held 
without further action, pending the United States Supreme 
Court decision in Brown v. Board of Education, supra.

After the second decision in Brown v. Board of Educa­
tion, and specifically on June 27, 1955, appellees appeared 
before the school board and again requested that it reor­
ganize the public schools on a nondiscriminatory basis 
(R. 46). A further petition was filed on July 10 (R. 47). 
On August 29, 1955, appellant reaffirmed its present policy 
of racial segregation and appointed counsel now handling 
this appeal to defend it in this case and to act as its counsel 
in any suit brought by or against the Board involving segre­
gation (R. 48-51). On August 18th, having heard nothing 
from appellant in respect to their petitions of June 27 and 
July 10, appellees filed an amended complaint (R. 19) in 
the court below attacking' the constitutionality of Sec­
tion 81.1 and 331 of Title 17, Louisiana Revised Statutes



3

(Acts of 1954, No. 555 and 556), as well as Section 1, Article 
12 of the Constitution of Louisiana on the grounds that 
these provisions were in fatal conflict with the Constitution 
of the United States. Injunctive relief against enforcement 
of this state policy was requested in a motion for a tem­
porary injunction filed the same day (R. 16). The statutes 
in question had been enacted in 1954 after the first decision 
of the Supreme Court in the School Segregation Cases 
(Brown v. Board of Education) and were openly designed 
to circumvent and avoid compliance with that decision.

On December 2, 1955, hearing was held on appellees’ 
application for preliminary injunction and on all other 
motions (R. 43) before a statutory district court of three 
judges. On February 15,1956, that court filed a per curiam 
opinion in which it stated it had found no serious constitu­
tional questions presented in this case not heretofore de­
cided by the United States Supreme Court in Brown. 
Hence it dissolved the three-judge court and turned the 
matter over to the regular district court in which cause 
had been filed (R. 122-124). The latter court disposed of 
the case that same day by holding racial segregation in 
public schools in Orleans Parish invalid on the basis of the 
Brown decision (R, 125-131), and by issuing a decree re­
straining' and enjoining appellant “ from requiring and 
permitting segregation of the races in any school under 
their supervision, from and after such time as may be 
necessary to make arrangements for admission of children 
to such schools on a racially nondiscriminatorv basis with 
all deliberate speed . . . ”  (R. 132-133).

Appellant filed a motion for leave to file a petition for 
writ of mandamus in the United States Supreme Court 
attacking the ruling and decree now before this Court on 
the ground that Title 28, United States Code, Sections 2281- 
2284 required the questions here in issue to be disposed of 
by a three-judge court. This motion was denied, 100 L. ed. 
(Adv. p. 690) decided May 28, 1956. Thereupon, appel­
lant brought the matter here.



4

ARGUMENT

The Judgment of the Court Below Is Clearly Cor­
rect and Should Be Affirmed.

Much of appellant’s brief is taken up with exhaustive 
argument on questions which are foreclosed. Appellant 
seeks to reopen and relitigate here basic principles of 
federal jurisdiction and constitutional law which the 
United States Supreme Court has heretofore decided con­
trary to appellant’s contentions. If the law is to change 
with respect to federal jurisdiction, class action, procedural 
requirements for litigation in the federal courts, that 
change cannot be made in this forum. Yet, all of appel­
lant’s argument is devoted to these questions and those in 
a similar category.

The court below has given adequate answer to appel­
lant’s contention that this is a suit against the state (R. 126- 
127), and has cited Georgia R. Co. v. Redwine, 342 U. S. 
229, and the cases there collected in Notes 14 and 15 at 
page 304. In Ex parte Young, 209 U. S'. 123, the Supreme 
Court reviewed and restated its position that suits to en­
join state officers from acting illegally are not suits against 
the state. Since that time this has become accepted as a 
basic principle of law.

The long series of cases dealing with racial discrimina­
tion as a denial of rights secured under the Fourteenth 
Amendment have necessarily involved state officers as 
defendants, see Smith v. Allwright, 321 U. S. 469; McLaurin 
v. Oklahoma State Regents, 339 U. S. 637. Yet federal 
jurisdiction was found. In several eases of this kind, objec­
tion was made to the exercise of federal jurisdiction on 
the ground that the suit constituted a suit against the 
state and one, therefore, over which federal jurisdiction 
was lacking—the argument appellant makes here. These



5

objections were found to be either so frivolous or lacking 
in merit that almost uniformly federal jurisdiction was 
sustained without even a mention of this objection. That 
issue was raised in this Court as recently as Board of 
Supervisors v. Tureaud, 225 F2d 434, (1956), reversed, 226 
F2d 714, vacated en lane and order in 225 F2d 434, rein­
stated, 228 F2d 895, but again decision was reached without 
mention of this question. And it is, of course, clear that 
Brown v. Board of Education and this case are identical 
in that both cases seek injunctive relief in a federal court 
against the allegedly unconstitutional action of public 
school officials.

In short, appellant has no support in any of the cases 
decided in the past 50 years for the doctrine they have pre­
sented so extensively in their brief. Indeed, appellant is 
arguing for a policy which would deny jurisdiction to the 
federal courts over any controversy between public officials 
and residents of the same state in respect to the enforce­
ment of any discriminatory state policy in violation of 
rights secured under the Constitution of the United States. 
Undoubtedly this is the reason the law is so universally to 
the contrary.

That this is an actual controversy, that appellees are 
threatened with irreparable injury and that this is proper 
class action is unquestioned. To reach any other conclu­
sion would be to forget that such cases as Swecitt v. Painter, 
339 U. S. 629; Brown v. Board of Education, supra; Wilson 
v. Board of Supervisors, 92 F. Supp. 986 (E. D. La. 1950), 
aff’d, 340 U. S. 909, had ever been decided.

Appellant objects to the form in which the cause was 
brought in that suit was filed by the “ next friend”  of 
infant appellees. There is no question but that this form 
complies with the procedural requirements of the federal 
courts. See Rule 17 of the Federal Rules of Civil Proce­
dure. In this case the real parties in interest are the 
children who desire to attend nonsegregated schools.



6

Under Article 108, Louisiana Code of Practice (See p. 64 
and pp. 59-68 of appellant’s brief), if this action had been 
brought in state courts, it would have been necessary for 
it to have been brought on behalf of the children by their 
tutors. But there is no such requirement in respect to fed­
eral practice. Rule 17(c) provides as follows:

Infants or Incompetent Persons. Whenever an 
infant or incompetent person has a representative, 
such as a general guardian, committee, conservator, 
or other like fiduciary, the representative may sue 
or defend on behalf of the infant or incompetent 
person. If an infant or incompetent person does not 
have a duly appointed representative he may sue 
by his next friend or by a guardian ad litem. The 
court shall appoint a guardian ad litem for an infant 
or incompetent person not otherwise represented in 
an action or shall make such other order as it deems 
proper for the protection of the infant or incompe­
tent person.

Rule 17(c) above sets forth the procedural requirements 
for the prosecution of suits involving minors in the federal 
courts. Since this is merely a question of procedure, the 
rules of the forum in which suit is brought are controlling. 
See Montgomery Ward <& Co. v. Callahan, 127 F2d 32 (10th 
Cir. 1942); Constantine v. Southwestern Louisiana Insti­
tute, 120 F. S'upp. 417 (W. I). La. 1954). No state may 
abridge or prescribe the procedural requirements which 
obtain in a federal court. As it was said in Constantine 
v. Southwestern Lousiana Institute, supra, at 418:

Rule 17(c) of the Federal Rules of Civil Proce­
dure, 28 U. S. C., provides that where an infant or 
incompetent person does not have a duly appointed 
representative he may sue by his next friend. This 
right cannot be abridged by a State statute.



7

As was hereinabove indicated, appellees have more 
than exhausted their administrative remedies. They have 
made several unsuccessful appeals to appellant-board and 
the superintendent of schools to conform to the require­
ments of the law. Instead of taking steps to eliminate racial 
discrimination in the public schools under its control, appel­
lant stubbornly stood fast and employed special counsel to 
defend its unconstitutional policy in any litigation brought 
against it.

The statutes held unconstitutional (No, 555 and 556 
of the Acts of 1954) by the court below are a part of 
a plan designed by the legislature to maintain segregated 
schools despite the Supreme Court decision. These Acts 
and any similar legislation designed to maintain segregated 
schools fall under the ban of the Brown decision. Indeed, 
this case is on all fours with Brown v. Board of Education, 
and its disposition, as held by the court below, is controlled 
by that decision.

Beginning at page 84 of its brief, appellant seeks to 
relitigate Brown v. Board of Education, supra, on the 
merits. Whatever rationale impressed the Supreme Court 
in reaching its decision that enforced segregation in public 
schools is at variance with constitutional requirements, that 
decision is now the law of the land and must be followed 
and applied by inferior courts. Whether the rationale 
utilized by the Court is sound or should be reconsidered is 
an argument which appellant may properly address to the 
United States Supreme Court but not to this forum.



8

The decision of the court below is, Ave submit, a proper 
and correct application of controlling principles of law in 
both their substantive and procedural aspects, and as such, 
the judgment of the court beloAv should be affirmed.

Respectfully submitted,

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

1821 Orleans Avenue 
New Orleans, Louisiana

R obert L. Carter,
T hurgood Marshall,

107 West 43rd Street 
New York 36, New York

Attorneys for Appellees