Plaintiffs' Memorandum in Opposition to the Convening of a Three Judge District Court

     [||a71bb981-9fb7-4961-966b-1f2955926b24||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

  

DELORES NORWOOD, et al., 

Plaintiffs, 

v, CIVIL ACTION 

D. L. HARRISON, .SR., et al., NO. WC70-53-K 

(Three Judge District 
Court) : 

Defendants. 

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PLAINTIFFS! MEMORANDUM IN OPPOSITION 
TO THE CONVENING OF A THREE 

JUDGE DISTRICT COURT 

The convening of a three judge district court entails 

‘a wrenching of district and appellate court structures, 

procedures and relationships. It is a cumbersome and 

burdensome hybrid since it requires district courts to 

convene as a tribunal and requires direct appeals to 

the Supreme Court, by~passing or side-stepping the 

intermediate courts of appeals, The Three-Judge Court 

Act is therefore not to be viewed "z3 a measure of 

broad social policy...but as an enactment technical 

in the strict sense of the term...to be narrowly Cons 

  

ap strued." Philips v, United States, 312 U.S. 246; 

Bailey v, Patterson, 369 U.S. 31,33 (19562). 
  

In addition, courts are to be guided by the following 

overview which clearly implies that three judge courts 

should not be convened except in rare cases: 

The legislative history of $2282 and its 
compliment, §2281, requiring three judges 
to hear injunctive suits directed ~galnst 
federal and state legislation, respective- 
ly, indicate<« that these sections were 

 



  

enacted to prevent a single federal judge 
from being able to paralyze totally the 
operation of an entire regulatory scheme, 
state or federal, by issuance of a broad 
injunctive order.... 'The crux of the busi- 
ness is procedural protection against an 
improvident state-wide doom by a federal 
court of a state legislative policy, 

  

  

  

Kennedy v, Mendoza-Martinez, 372 U.S. l44, 
154 (1963) (Emphasis Added). 
  

It is, therefore, not surprising that several 

distinctions have been drawn by the federal judiciary 

which have led to a reduction in the number of cases 

and issues subject to three-judge district court 

resolution, Plaintiffs depend upon three distinctions 

which support remand of this case to a single district 

1/ court judge.=’ First, we do not challenge the textbook 

statute in its entirety, but rather we challenge aid to 

a limited and clearly defined class of schools; i.e., 

we do not attack an "entire regulatory [or statutory] 

scheme," Kennedy, supra. Secondly, defendants have 
  

interpreted the state textbook law as permitting the 

withholding of textbook aid to certain schools, and 
  

therefore at issue in this case is an administrative 

decision to grant textbook aid to a certain class 

of schools; there is no meed to hold the statute un- 

constitutional. Finally, we ask this Court to recognize 

that " a distinction exists between That de sought as a 

form of relief within the power of a court of equity and 

what 1s sought as a matter of primary constitutional 

right irrespective of the legality of past conduct by 

the parties sued," Bradley v, School Board of the City 
  

  

1/ 
“In this Circuit it is necessary to convene a three- 

judge district court which conditionally determines whether 
the matter is properly before the special tribunal. Irrespective 
of the outcome of that threshold inquiry, it is necessary 
for a single district court judge and the three judge court 
to separately determine the case on the merits. Jackson v. 
Choate, 404 7,24 910, 912," 913 (5th Clr. 19638), 

Plaintiffs never maintained that a three-judge court 
was required in this case; our Complaint makes no mention 
of such a court. Rather we subsequently moved for the 
special tribunal because we understand Jackson to hold 
that, whenever there is the slightest doubt, only a three- 
judge district court can determine whether a three-judge 
district court is necessary. 

  

 



  

of Richmond, Va,, 324 7. Supp. 396, 400 (E.D. Va. 1971). 
  

Plaintiffs paramount theory is that this Court should 

enjoin any and all state aid to private academies formed 

in the wake of public school desegregation and in competition 

with public schools for students and teachers as part 

of an equity court's broad power to fashion an effective 

remedy for the state's past dual racial system of public 

education. Essentially we ask this Court to protect 

the integrity of its orders establishing unitary school 

systems and eliminating state support for racial 

segregation. (Plaintiffs! Brief, Argument II, pp.27-29.) 

I 

The Statute is Not Challenged 
in its Entirety. 
  

  

The courts have been relunctant to convene three- 

judge district courts whenever plaintiffs may be 

accorded relief without the necessity for undermining 

the broad framework of state legislative enactments. 

This approach to the issue has appeared in a variety 

of cases. 

  

In Maison v., Confederated Tribes, 314 F.2d. 169 

(9th Civ. 1063). the Oregon State Game Commission 

had promulgated regulations prohibiting fishing 

on certain rivers out of season, Plaintiffs were 

indians who were admittedly fishing in violation 

of the Commission's regulations, But plaintiffs 

claimed that the regulations were inconsistent with 

an 1855 Indian Treaty assuring unimpeded fishing rights 

in the rivers, The Court held that the regulation was 

admittedly valid and that the real issue was whether 

the statute could be invoked against plaintiffs' class. 

Since the statute could be left essentially in tact 

while providing plaintiffs relief, there was no 

need to convene a three-judge court. 

3 

 



  

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. case, plaintiffs sought admission to a white junior 

college arguing that the exclusion of blacks violated 

Equal Protection. Plaintiffs sought a three-judge district 

court arguing that Texas statutes, requiring racial 

segregation, were at issue. The trial court refused 

to convene a three-judge court. The Fifth Circuit 

affirmed, noting that the issue was whether, in the 

particular locality; hinch and white junior colleges 

were in all respects "separate but equal." When 

the district court held that black and white facilities 

were not equal, and granted plantiffs admission to 

to the white junior college, the court was not 

‘holding the Texas statutes unconstitutional but rather 

was merely resolving a factual question; and a three- 

judge district court was not necessary or proper. 

Witchita Falls Junior College v. Battle, 204 F,2d 
  

832° (5th Cir. 1933), cert, den. 347 U.S, 974. Blacks 

were admitted to a white junior college in Witchita 

Falls, but Texas racial segregation statutes were 

otherwise left intact. 

The same principle with a different twist was 

announced in Benoit v, Garder, 351 F.2d 846 (1st Cir. 
  

1965). There plaintiff sought an injunction enjoining 

the Massachusetts Crime Commission from further activi- 

ties directed against him and argued that the legislation 

creating the Commission violated Sie process and equal 

protection. The Court held that a three-judge district 

court was not required because the suit was not a challenge 

to the constitutionality of the statute but rather 

involved a charge that a "valid statute or order 

«oo|was| being executed in a manner prejudicial to 

constitutional rights." 

 



  

. 

And still another variation on what we believe to be 

the same theme, can be found in Philips v. United States, 
  

312 U.8.. 245 (1941). There the Governor of Oklahoma, 

acting under authority of a state statute, declared 

martial law in an effort to frustrate the construct fon 

of a federally Fintonaed Dam, A unanimous court, speaking 

through Justice Frankfurter, held that an injunction 

enjoining the Governor from interfering with the pro- 

ject should be issued by a single district court judge. 

The statute did indeed confer authority upon the Governor 

to declam martial law, But the issue before the trial 

court was whether a constitutional statute could be 

exploited by the Governor to accomplish an unlawful 

end. Again, the thrust of the state statute cculd 

be essentially left in tact, and the Governor enjoined, 

and so a three judge district court was not hotens ry. 

Some courts and commentators have svtuned these 

cases as exceptions to §2281 and have emphasized that 

an unconstitutional result differs from an unconstitu~ 

tional statute; or that in some cases the controversy 

is factual and not related to the constitutionality of 

a state statute. They foie that these distinctions are 

"sometimes difficult fo apply.” Amo, 15 1, B4 24d, 

904, 917. But in plaintiffs view the essential and 

Will an injunction issued by the court "paralyze totally 

the operation of an entire regulatory scheme;" if the 

answer is "no%, if relief can De afforded plaintiffs 

without seriously undermining a legislative scheme 

or policy, then there is no need f 

district court. This is the thread which runs through 

19)
 11 of ‘the cases. 

sc 

 



  

It is easy to apply these principles to the case 

at bar. There are 154 public school districts, over 

1000 public schools and over 40 private schools un- 

touched by this litigation. The state's textbook 

program is only challenged insofar as it has resulted 

in the distribution of textbooks to 107 schools enrolling 

only a small fraction of the state's one-half million 

students. In addition, it is clear that the 1940 legis- 

lature contemplated free textbooks to public, Catholic 

and other true parochial schools; those were the 

only schools in existence at the time. For these 

reasons it is apparent that an order of this Court 

enjoining state textbook aid to a limited and clearly 

defined class of schools, not even in existence at 

the time the statute was enacted, would leave the 

state's textbook program essentially in tact: a three- 

judge district court is without Surtsdionton to deter=- 

mine this controversy. 

11. 
An Administrative Decision of the 
Textbook Board, and not the Statute, 
1s under Attack. 

  

  

  

Admittedly, Section 6656 of the Miss, Code, 1942, 

provides that state owned textbooks "shall be" 

distributed to pupils in "all elementary and high 

schools of Mississippi." The statute appears to 

mandate distribution subject only to the limitation 

that only schools "which maintain standards equivalent 

to the standards established by the state department 

of education" are eligible for aid under the program. 

However, defendant Textbook Board has read the 

statute as permitting the exclusion of certain schools 

from the program notwithstanding the statute. The Board 

 



  

has excluded the Gulf Coast Military Academy from the 

program primarily Yecoiase it operates at a profit, 

(See Plaintiffs' Brief, p. 13). The Executive 

Secretary to the Board, Mr. Snowden, testified 

at a deposition taken subsequent to the filing 

of plaintiffs! brief, that the Textbook Board has 

a policy against providing aid to schools which 

operate at a profit despite the clear language 

of the statute making such schools eligible, 

With this in mind, plaintiffs maintain that the. 

decision of the Textbook Board to afford private racist 

academies with free textbooks, primarily entails an 

administrative decision under a state statute which 

affords the Board considerable latitude in deter- 

mining eligibility under the program. Administrative 

decisions, not mandated by statute, are reviewable 

before a single district court judge. Sweeny v. 
  

State Board of Public Assistance, 36 F. Supp. 
  

171,172 (M.D, Pa, 1940); Fx Parte Branford, 310 
  

  

U.S. 354 (1940); Philips v. United States, supra. 

aC 111 
This is an Action to Assure 
A Remedy for Past Discrimin- 
ation, 

  

  

A three-judge district court should not be 

convened when the state statute at issue has been 

interposed to frustrate Equity's duty to remedy 

past racial discrimination or is at odds with 

a judgment or decree previously entered by a 

single district court judge. The distinction relied 

upon is between what is sought "as a form of relief 

within the power of a court of equity and what is sought 

as a matter of primary constitutional right..." 

Bradley, supra, 324 F, Supp. at 400. 

¥y 

 



  

In Cooper v. Aaron, 261 F.2d 97, 106 (8th Cir. 
  

1958), defendants, members of the Board of Education 

and Superintendent of the Little Rock School System, 

were enjoined to open Little Rock High School to 

black applicants. The Arkansas legislature thereupon 

enacted measures which resulted in Little Rock High 

becoming a private school. Defendants then claimed 

that state statutes prevented the integration of 

the high school. The court held that a three judge 

district court was not required to determine the 

constitutionality of the state statutes: 

The propriety and legality of the [School 
Board's | acts and threatened actions have 
been viewed simply in relation to the ob- 
ligation imposed upon them by the previously 
existing federal court decree, without re- 
gard to whether the statutes mentioned are 
in themselves constitutional or unconstitu- 
tional. 

A similar approach was taken by the court in 

another Little Rock episode. Governor Fgubus was 

suclned by the district court from using the National 

Guard to preserve segregation at Little Rock High, 

Faubus argued in the Eighth Circuit that the 

district court was without jurisdiction to enter 

the injunction except as a three judge court. The 

appeals court disagreed holding, in part, that a 

single district court judge had authority to protect 

the integrity of its orders requiring the integration 

of Little Rock High School; the injunction entered against 

the Governor was part of the remedy for racial segregation, 

Fagbus v. United States, 254 F, 24 797, 805 (8th Cir. 
  

1958). 

In the same vein are decisions of the Fifth Circuit 

holding that state statutes which interfere with the 

disestablishment of dual racial faculty assignments must 

yield when a remedy for past discrimination is in the 

balance. No mention of three-judge district courts is 

“Gm 

 



  

made in any of these opinions. United States v. Greenwood,   

406 F, 24 1086, 1094; U.S, v, Indianola Municipal 
  

Separate School District, 410 F.2d 626,630 (5th Cir. 
  

1969); United States v. Bessemer Board of Education, 
  

396 F.2d 44, 51. (5th Cir, 1968). Rather the 

side-stepping of state statutes occurs as a result 

of the district court's duty to fashion a remedy 

which will "eliminate the discriminatory effects 

of the past as well as bar like discrimination in 

the future." Louisiana v. United States, 380 U.S. 
  

145 (1965). And under such circumstances a three= 

judge district court is not required. 

Plaintiffs! Complaint makes it clear that our 

primary objective is to protect the integrity of 

orders entered by the district courts of the state 

establishing unitary public school systems. The 

relief we seek is a facet of the remedy for the 

state's past policies of racial discrimination 

and as such, the case falls squarely within the 

  

principle announced in Louisiamv., United States, 

and Cooper v. Aaron, supra. 
  

The named plaintiffs herein...are students 
in attendance at the public schools of the 
Tunica County School District. Their right to 
a racially integrated and otherwise non- 
discriminatory public school system, vindi=- 
cated by order of this Court dated January 
23,1970, ...20d their right to the elimination 
of state support for racially segregated 
schools, [have] been frustrated and/or abridged 
by the creation of the racially segregated 
Tunica Institute of Learning and the policies 
and practices of defendants as set forth be- 
low. (Complaint, paragraph 3) 

The defendants have provided these racially 
segregated schools and academies and the 
students attending such schools, ...textbooks 
purchased and owned by the State of Mississ~- 
ippi ...and have thereby impeded the establish- 
ment of racially integrated public schools in 
violation of plaintiffs! rights assured and 
protected by the Fourteenth Amendment to the 
Constitution of the United States, (Complaint, 
paragraph 9) 

 



  

CONCLUSION 
  

For the foregoing reasons this Court of three 

judges should hold that Er without jurisdiction 

to hear this case. Similarly, a single district court 

judge should determine that the matter is properly before 

him alone. Thereafter, both the three judge court and 

the single district court judge should enter an 

opinion and order on the merits. 

Respectfully submitted, 

nts 
MELVYN R. LEVENTHAL 
FRED 1. BANKS, JR. 

538% North Farish St. 
Jackson, Miss. 39202 

  

ROBERT J. KELLY 

113 Wood Street 
Batesville, Miss. 38606 

JACK GREENBERG 
NORMAN CHACHKIN 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Counsel for Plaintiffs. 

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