Certificate of Service RE: Petition for Writ of Certiorari
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December 2, 1972

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Brief Collection, LDF Court Filings. Hudson v. Brooks Brief for Plaintiff-Appellant, 1969. 97289191-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/008ae078-48c3-4b6a-8570-e36995030b01/hudson-v-brooks-brief-for-plaintiff-appellant. Accessed July 30, 2025.
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luttefc Bintm (Emtrt of Appeals F ob the F ifth Circuit No. 26953 I n the J ames L. H udson, etc., Plaintiff-Appellant, Gray Brooks, et at., Defendants-Appettees. APPEAL FROM T H E U N IT E D STATES DISTRICT COURT FOR T H E NO RTH ERN DISTRICT O F M IS SIS SIPP I BRIEF FOR PLAINTIFF-APPELLANT J ack Greenberg Melvyn Zarr 10 Columbus Circle New York, New York 10019 Reuben Y. A nderson 538% North Farish Street Jackson, Mississippi 39202 Attorneys for Plaintiff-Appellant I N D E X PAGE Issue Presented............................................................... 1 Statement of the Case................................... ................. 1 Argument I. Plaintiff Stated a Claim for Relief Under 42 U. S. C. §1985(3) ........................................ 6 II. Plaintiff Stated a Claim for Relief Under 42 U. S. C. §1985(2) ...... 20 Conclusion .......................................................................... 22 T able of Cases Brewer v. Hoxie School District No. 46, 238 F. 2d 91 (8th Cir. 1956) ........................................................... 18 Bullock v. United States, 265 F. 2d 683 (6th Cir. 1959), cert, denied, 360 U. S. 909 (1959) ............................. 19 Collins v. Hardyman, 341 IT. S. 651 (1951) ................6, 7, 8 Congress of Racial Equality v. Clemmons, 323 F. 2d 54 (5th Cir. 1963), cert, denied 275 U. S. 992 (1964) ................................................................. 3,9,17,18 Cunningham v. Grenada Municipal Separate School District, ----- F. Supp. ----- , C. A. No. WC 6633 (1966) 2,3 11 PAGE Farkas v. Texas Instrument, Inc., 375 F. 2d 629 (5th Cir. 1967) ............................. ....................................... 9 Jones v. Mayer, 392 U. S. 409 (1968) ....10,12,13,14,17, 21 Kasper v. Brittain, 245 F. 2d 92 (6th Cir. 1957), cert. denied 355 U. S. 834 (1967) .......... ............................. 19 Katzenbach v. Morgan, 384 U. S. 641 (1966) ................ 17 Mitchell v. Greenough, 100 F. 2d 184 (9th Cir. 1938), cert, denied 306 U. S. 659 (1939) ................................ 21 Monroe v. Pape, 365 IT. S. 167 (1961) ...........................7,12 Paynes v. Lee, 377 F. 2d 61 (5th Cir. 1967) ............... 7 United States v. Guest, 383 U. S. 745 (1966) ............. 16,17 Van Meter v. Sanford, 152 F. 2d 961 (5th Cir. 1946) .... 21 F ederal S tatutes Act of April 9, 1866, c. 31, 14 Stat. 2 7 .......... ................ 13 Act of April 20, 1871, c. 22, 17 Stat. 13 .......................10,11 Rev. Stat. §1978 (1874) .................................................. 13 Rev. Stat. §1980 (1874) ... ............................................... 10 18 TJ. S. C. §242 .............................................. 13 28 U. S. C. §1343 ............................................ 3 42 U. S. C. §1982 ............................................. 13 42 U. S. C. §1983 ............................................ 12 42 U. S. C. §1985(2) . Passim 42 U. S. C. §1985(3) ................................. Passim Other Authorities p a g e Cong. Globe, 42d Cong., 1st Sess. (1871) ................... 14,15 Cox, Constitutional Adjudication and Promotion of Human Eights, 80 Harv. L. Eev. 91 (1966) .............. 16 Note, Federal Civil Action Against Private Individuals for Crimes Involving Civil Eights, 74 Yale L. J. 1462 (1967) .......................................................................... 15 Eeport of the United States Commission on Civil Eights, Southern School Desegregation, 1966-67, pp. 74-108 (July, 1967) ............................................. 20 I n' the Hmti'ii States Court of Appeals F or the F ifth Circuit No. 26953 J ames L. H udson, etc., Plaintiff-Appellant, Gray Brooks, et al., Defendants-Appellees. APPEAL PROM T H E U N ITED STATES DISTRICT COURT FOR T H E NO RTH ERN DISTRICT OF M ISSISSIPPI BRIEF FOR PLAINTIFF-APPELLANT Issue Presented Did plaintiff-appellant sufficiently state a claim for relief under 42 U. S. C. §§1985(2) and 1985(3)! Statement of the Case This is an appeal from an order of the United States District Court for the Northern District of Mississippi dis missing plaintiff-appellant’s complaint for failure to state a claimed denial of federal civil rights for which relief 2 could be granted pursuant to 42 U. S. C. §§1985(2) and 1985(3). The following facts were taken to be true by the court below in rendering its decision. Plaintiff James Hudson is a Negro high school student in Grenada, Mississippi who, prior to the 1966-67 school year, was required by law to attend a segregated public school (A. 2-3). On July 26,1966, the court below ordered the Grenada school board to de segregate and, on August 26, 1966, it accepted the board’s “freedom of choice” plan (A. 2). Cmmingham v. Grenada Municipal Separate School District, ----- F. Supp. ——, Civil Action No. WC 6633. Plaintiff chose to attend the formerly all-white John Bundle High School and enrolled on or about September 14, 1966 (A. 2-3). By November 8, 1966, conditions in the Grenada public schools had become such as to require the court below to order the school board to protect Negro children attending desegregated schools “from violence, intimidation or abuse” (A. 2). Cunningham v. Grenada Municipal Separate School District, supra. On December 9, 1966, in a classroom at the John Bundle High School, defendant Gray Brooks, a white student, pur suant to a conspiracy with other white students, threw a metal object at plaintiff and fractured his skull (A. 3-5). The purpose of the conspiracy was to injure the plaintiff and other Negro students for lawfully attempting to enforce their right to attend a desegregated school and to prevent and hinder the school board officials from securing to the plaintiff and other Negro students a desegregated educa tion (A. 25-26). Because of his injury, plaintiff was forced 3 to withdraw from school for the remainder of the school year (A. 4).1 2 Plaintiff’s complaint was filed March 30, 1967 by his mother as next friend against Gray Brooks and his parents, claiming, inter alia/ a violation of his rights under 42 U. S. C. §1985 (A. 1-6). Defendants moved to dismiss the complaint on the ground that no claim for federal relief had been stated.3 On October 2, 1967, (then) District Judge Claude F. Clayton dismissed the complaint for failure to state a claim for federal relief holding, inter alia, that plaintiff failed to state a claim under 42 U. S. C. §1985 because there was no allegation of state action (A. 22-24). Judge Clayton granted plaintiff leave to file an amended complaint within 30 days of the order (A. 24-25). 1 Sixty-two Negroes had elected to attend the John Bundle High School for the 1966-67 school year (together with approximately 650 white students). That number dwindled to 37 by the 1967- 68 school year and to 20 by the 1968-69 school year. Cunningham, supra. 2 The complaint also claimed violations of rights under the Fourteenth Amendment and 42 U. S. C. §1983, the federal court orders in Cunningham, Title VI of the Civil Rights Act of 1964 and the Mississippi assault and battery statute. A further claim under 18 U. S. C. §1509 was added by amendment on May 11, 1967 (A. 8-9). 3 Defendants also moved to dismiss on jurisdictional grounds, claiming that there was neither federal question nor diversity jurisdiction. Diversity jurisdiction was not invoked by the plain tiff and the court below correctly found that it had federal question jurisdiction (A. 16-17). Plaintiff also invoked, and the district court had, jurisdiction under 28 U. S. C. §1343 (A, 1, 9). Congress of Racial Equality v. Clemmons, 323 F. 2d 54, 58-60 (5th Cir. 1963), cert, denied 275 U. S. 992 (1964). 4 In an amended complaint filed October 17, 1967, plaintiff claimed with greater particularity the violation of his rights under 42 U. S. C. §1985, alleging a conspiracy in violation of 42 U. S. C. §1985(2) “to injure plaintiff and other Negro students in their persons and property for lawfully en forcing and attempting to enforce their rights to the equal protection of the laws” (A. 25-26) and a conspiracy in vio lation of 42 U. S. C. §1985(3) to “ [prevent and hinder] the officials of the Grenada Municipal Separate School District from giving and securing to plaintiff and other Negro students the equal protection of the laws, by punish ing plaintiff and other Negro students for choosing to attend and attending John Bundle High School and coercing them to withdraw from that school” (A. 26).* 2 3 4 442 U. S. C. §§1985(2) and 1985(3) provide as follows: (2) If two or more persons in any State or Territory con spire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indict ment of any grand or petit juror in any such court, or to in jure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal pro tection of the laws; (3) If two or more persons in any State or Territory con spire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or in directly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the con stituted authorities of any State or Territory from giving or 5 Defendants again moved to dismiss for failure to state a claim for federal relief (A. 27). Circuit Judge Clayton having become physically disabled, the case was reassigned to District Judge William C. Keady who, on October 2, 1968, dismissed the complaint as amended “for jurisdictional failure to state a claim upon which relief can be granted” (A. 31-32). Judge Keady agreed with Judge Clayton “that there exists no such an cillary right as that asserted here to money damages from an individual, absent any claim of state action of any kind” (A. 31). Plaintiff’s timely appeal to this Court followed (A. 32). securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons con spire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on ac count of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. 6 A R G U M E N T I. Plaintiff Stated a Claim for R elief Under 42 U. S. C. § 1 9 8 5 (3 ) . As analyzed by the Supreme Court of the United States in Collins v. Hardyman, 341 U. S. 651, 660 (1951), 42 U. S. C. §1985(3) proscribes each of the following four classes of conspiracies: (1) For the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law; or (2) For the purpose of preventing or hindering the constituted authorities from giving or securing to all persons the equal protection of the laws; or (3) To prevent by force, intimidation, or threat, any citizen entitled to vote from giving his support or advocacy in a legal manner toward election of an elector for President or a member of Congress; or (4) To injure any citizen in person or property on account of such support or advocacy. Collins v. Hardyman dealt solely with an alleged con spiracy of the first class. There, the plaintiffs’ political club meeting was broken up by a gang of toughs; the inci dent giving rise to the suit was characterized by the Su preme Court as “a lawless political brawl, precipitated by a handful of white citizens against other white citizens” (341 U. S. at 662). The plaintiffs claimed a denial of their “equal privileges and immunities under the laws” ; for all 7 that appears, they did not claim a denial of equal protec tion of the laws (341 U. S. at 654-55). The Supreme Court held that the complaint failed to sufficiently state a claim for relief under §1985(3) because it lacked the essential allegation of the denial of a right to equality, stating (341 IT. S. at 661): The only inequality suggested is that the defendants broke up plaintiff’s meeting and did not break up meet ings of others with whose sentiments they agreed. To be sure, this is not equal injury, but it is no more a deprivation of ‘equal protection’ or of ‘equal privileges and immunities’ than it would be for one to assault one neighbor without assaulting them all, or to libel some persons without mention of others.5 6 A conspiracy involving class 3 or 4, i.e., involving fed erally protected voting rights, was before this Court in Paynes v. Lee, 377 F. 2d 61 (5th Cir. 1967).6 This case involves a conspiracy of class 2. 5 In dictum, the Court went on to say that, even if a right to equality had been alleged, it would have had to be of massive pro portions (341 U. S. at 662) : We do not say that no conspiracy by private individuals could be of such magnitude and effect as to work a depriva tion of equal protection of the laws, or of equal privileges and immunities under laws. Indeed, the post-civil war Ku Klux Klan, against which this Act was fashioned, may have, or may reasonably have been thought to have, done so. Whatever the validity of this dictum as to a class 1 conspiracy, its implied limitation cannot properly be imposed upon a class 2 conspiracy. See Monroe v. Pape, 365 U. S. 167, 200, note 9 (1961) (concurring opinion of Justices Harlan and Stewart). See also note 12, infra. 6 In dictum, this Court stated (377 F. 2d at 63) : The denial of a Federal remedy against persons not acting under color of state law is only in cases where the asserted 8 Plaintiff alleged that the conspiracy was “for the pur pose of preventing and hindering the officials of the Grenada Municipal Separate School District from giving and se curing to plaintiff and other Negro students the equal protection of the laws, by punishing plaintiff and other Negro students for choosing to attend and attending John Bundle High School and coercing them to withdraw from that school” (A. 26). Since the constituted school authorities had elected to employ the “freedom of choice” method of desegregation, and since the alleged conspiracy was utterly destructive of free choice and of desegregation, plaintiff clearly appeared to allege a class 2 conspiracy. Put another way, plaintiff clearly appeared to state a claim under the following pro vision of §1985(3): If two or more persons in any State or Territory conspire or go in disguise on the highway or on the. premises of another . . . for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such state or territory the equal protection of the laws . . . ; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and right stems from the Fourteenth Amendment and the claim is for damages resulting from an abridgment of privileges or immunities or a denial of equal protection of the laws. Such was the case of Collins v. Hardyman, supra. For reasons previously stated, this is not a correct statement of Collins v. Hardyman, nor, for reasons hereinafter to he developed, is it a correct statement of the law. 9 exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. However, the court below ruled otherwise, holding that a claim under §1985(3) could not be stated absent an allegation of state action (A. 22-23, 31). The court below relied upon the following language from this Court’s alter native holding in Congress of Racial Equality v. Clem mons, 323 F. 2d 54, 62 (5th Cir. 1963), cert, denied 275 U. S. 992 (1964): A fatal third weakness in the plaintiffs’ case is that the defendants are private persons. It is still the law that the Fourteenth Amendment and the statutes en acted pursuant to it, including 42 U. S. C. A. §1985, apply only when there is state action. Collins v. Hardy- man.1 Plaintiff submits that this language from the alternative holding in Congress of Racial Equality v. Clemmons is not a correct statement of the law insofar as it refers to a conspiracy of class 2 under §1985(3). Specifically plaintiff submits: 1. On its face, the invoked portion of §1985(3) reaches conspiracies by private individuals, absent any claim of state action; 7 7 This language was repeated in Farkas v. Texas Instrument, Inc., 375 F. 2d 629, 634 (5th Cir. 1967), also cited by the court below (A. 23). Farkas claimed a conspiracy of the first class, alleging that his former employer and a potential employer had conspired to deny him employment because of his national origin. 1 0 2. Congress meant what it said; 3. Congress had the power under §5 of the Fourteenth Amendment to enact it, as construed; 4. The 'principal holding of Congress of Racial Equality v. Clemmons supports plaintiff’s right to relief; and, 5. “The fact that the statute lay partially dormant for many years cannot be held to diminish its force today” {Jones v. Mayer, 392 U. S. 409, 437 (1968)). Jones v. Mayer, 392 U. S. 409 (1968), teaches that courts must be extremely hesitant to find an implied limitation on federal civil rights legislation where none appears on its face. On its face, the invoked provision of §1985(3) is not limited to conspiracies in which officials participate. In deed, to be blunt, such a reading makes little sense. State officials skulking along the highway to harass other state officials cannot have been the sole concern and object of this legislation. Nor was it. §1985(3) was enacted as part of the Ku Klux Act of 1871. Act of April 20, 1871, c. 22, 17 Stat. 13; codified as §1980(3) of the Revised Statutes of 1874. The Ku Klux Act, as its name implies, was enacted in reaction to the wave of Klan terror sweeping the South. See, e.g., Jones v. Mayer, supra, 392 TJ. S. at 435. The structure of the Ku Klux Act is crucial to its con struction. §1985(3) was enacted as part of §2 of the Ku Klux Act.8 Section 1 of that Act, which became the present 8 §2 provided, in relevant p a r t: That if two or more persons within any State or Territory of the United States shall conspire together . . . by force, in- 11 42 U. S. C. §1983, specifically proscribed conduct taken “under color of law.” 9 The comparison is extremely sig- timidation, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such juror, or shall con spire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall eonspire together for the pur pose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giv ing his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy. . . . And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such con spiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy. 9 §1 provided: That any person who, under color of any law, statute, ordi nance, regulation, custom, or usage of any State, shall subject, 1 2 nificant: when Congress intended to limit civil rights legislation to deal only with conduct under color of state law, it did so in unmistakable terms. In comparing §§1 and 2 of the Ku Klux Act of 1871, Justices Harlan and Stewart, concurring in Monroe v. Pape, 365 U. S. 167, 200 (1961), expressed their belief that a class 2 conspiracy can encompass wholly private action: Indeed it is difficult to attribute to a Congress which forbade two private citizens from hindering an offi cial’s giving of equal protection an intent to leave that official free to deny equal protection of his own ac cord.7 7 Compare the statement of Representative Burchard: “If the refusal of a State officer, acting for the State, to accord equality of civil rights renders him amenable to pun ishment for the offense under United States law, conspirators who attempt to prevent such officers from performing such duty are also clearly liable.” Cong. Globe, 42d Cong., 1st Sess. App. 315. This conclusion is made inescapable by the Supreme Court’s decision in Jones v. Mayer, supra. There, the or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privi leges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . Present §1983 provides: Every person -who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, sub jects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 13 Court was called upon to construe 42 U. S. C. §1982/° which had been enacted as part of §1 of the Civil Rights Act of 1866. Act of April 9, 1866, c. 31, §1, 14 Stat. 27, re-enacted by §18 of the Act of May 31, 1870, c. 114, §18, 16 Stat. 140, 144; codified in §§1977 and 1978 of the Re vised Statutes of 1874. There was no limitation to govern mental action on the face of §1982, and the Court held that none was to be implied (392 U. S. at 420-436). This con clusion was held compelled by the fact that §2 of the Civil Rights Act of 1866, which became 18 U. S. C. §242,“ ex plicitly contained a “color of law” requirement. The Court held: “Indeed, if §1 had been intended to grant nothing more than an immunity from governmental interference, then much of §2 would have made no sense at all” (392 U. S. at 424). (Emphasis Court’s). The Court continued; “Hence the structure of the 1866 Act, as well as its lan guage, points to the conclusion urged by the petitioners in this case—that §1 was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute, although only those deprivations perpetrated ‘un- 10 11 10 §1982 provides: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. 11 §242 provides: Whoever, under color of any law, statute, ordinance, regula tion, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privi leges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both. . . . 14 der color of law’ were to be criminally punishable under §2” (392 U. S. at 426) (Emphasis Court’s). The relevant legislative history supports the conclusion that Congress intended to reach nongovernmental con duct. The Act was entitled “An Act to Enforce the Pro visions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes.” As origi nally introduced, §1985(3) was not limited to protect sim ply rights to equality. Accordingly, it was complained that the provision, as drafted, would subvert the entire criminal jurisdiction of the States. In order to meet this criticism, the provision was amended to protect only rights to equal ity. Representative Shellabarger, the floor leader, ex plained the amendment in these terms (Cong. Globe, 42nd Cong., 1st Sess., 478 (1871)) : The object of the amendment is . . . to confine the au thority of this law to the prevention of deprivations which attack the equality of rights of American citi zens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens’ rights shall be within the scope of the remedies of this section. This amendment satisfied an earlier critic, Representa tive Poland, who endorsed the amended bill in these terms (Cong. Globe, 42nd Cong., 1st Sess., 514 (1871)): But I do agree that if a State shall deny the equal protection of the laws, or if a State make proper laws and have proper officers to enforce those laws, and somebody undertakes to step in and clog justice by preventing the State authorities from carrying out this constitutional provision, then I do claim that we have the right to make such interference an offense against the United States; that the Constitution does empower us to aid in carrying out this injunction, which, by the Constitution, we have laid upon the States, that they shall afford the equal protection of the laws to all their citizens. When the State has provided the law, and has provided the officer to carry out the law, then we have the right to say that anybody who under takes to interfere and prevent the execution of that State law is amenable to this provision of the Con stitution, and to the law that we may make under it declaring it to be an offense against the United States.12 This amendment also satisfied a majority of Congress. The legislative debates are traced in Note, Federal Civil Action Against Private Individuals for Crimes Involving Civil Bights, 74 Yale L. J. 1462, 1467-70 (1965). The Note concludes that “Congress wished to act to the full extent of its constitutional power [under §5 of the Fourteenth 12 An opponent of the provision was, if anything, even clearer in expressing his understanding of the coverage of the provision: . . . It does not requii'e that the combination shall be one that the State cannot put down; it does not require that it shall amount to anything like insurrection. If three persons combine for the purpose of preventing or hindering the con stituted authorities of any State from extending to all persons the equal protection of the laws, although those persons may be taken by the first sheriff who can catch them or the first constable, although every citizen in the country may be ready to aid as a posse, yet this statute applies. It is no case of domestic violence, no case of insurrection, and no case, there fore, for the interference of the Federal Government, much less its interference where there is no call made upon it by the Governor or the Legislature of the State. Id, at App 218 (Senator Thurman); see also id, at 514 (Rep Farnsworth). 16 Amendment] in order to satisfy the Radical Republicans.” (Id. at 1469.) Any doubt as to the constitutional power of Congress to do what it did in enacting §1985(3) has been dispelled by the statement of views of Mr. Justice Brennan, speaking for 6 members of the Court, in United States v. Guest, 383 U. S. 745, 782-84 (1966): A majority of the members of the Court expresses the view today that §5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy. Although the Fourteenth Amendment itself, according to estab lished doctrine, ‘speaks to the state or to those acting under the color of its authority,’ legislation protect ing rights created by that amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, §5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is neces sary to its full protection. In his foreword to the review of the Supreme Court’s 1965 Term, former Solicitor General Archibald Cox put the matter in practical terms (Cox, Constitutional Adjudi cation and the Promotion of Human Bights, 80 Harv. L. Rev. 91, 112 (1966)) : 17 It makes little difference to the Negro child or his parents whether white thugs overwhelm the janitor and bar the child at the schoolhouse door or stand a block down the street threatening violence to children on the way to school. The case is the same when parents are threatened with loss of their homes, credit or em ployment if their child attends a desegregated school. The practical objective of the constitutional guarantee is that Negroes should receive equal opportunities for the use of facilities that the State provides. The na tional interest is equally in the provision and enjoy ment of the state facilities. From this standpoint, there is just as much reason for Congress to have power to deal with conspiracies and other private ac tivities aimed at defeating enjoyment of the constitu tional right as there is for it to proscribe private interference with the State’s performance of its duty. And Jones v. Mayer, supra, which gave wide scope to the Enabling Clause of the Thirteenth Amendment, cer tainly ratifies the view of the Enabling Clause of the Four teenth Amendment expressed in United States v. Guest, supra. See also Katsenbach v. Morgan, 384 IT. S. 641, 648-51 (1966). The principal holding of Congress of Racial Equality v. Clemmons, supra, supports plaintiffs right to relief. There, the Mayor and law enforcement officials of the City of Baton Rouge, Louisiana brought suit against C. 0. R. E. under §1985(3), on the theory that C. 0. R. E.’s protest demonstrations required so much police involvement that other citizens received diminished police protection and therefore were denied equal protection of the laws. This Court replied (323 F. 2d at 61): “The contention has the 18 earmarks of a bad pun.” This Court went on to hold (323 F. 2d at 61): The absence of a purpose on the part of the defen dants to deprive anyone of rights to equal protection of the laws distinguishes this case from Brewer v. Hoxie School District, 8 Cir., 1956, 238 F. 2d 91. In Brewer v. Hoxie, an Arkansas school district, which had desegregated, was forced to close its schools be cause of the activities of the defendants, who had en gaged in a campaign of violence and intimidation. The school district, its directors, and superintendent ob tained an injunction in the federal district court against the White Citizens Council and other organiza tions and individuals from continuing interference with their desegregation efforts. On appeal, the Eighth Circuit refused to order the action dismissed. In the Arkansas case the defendants made no bones about their purpose. Their avowed object was to close the Hoxie School in order to deprive the Negro children of their right, under the Equal Protection Clause, to attend a desegregated school. Here, unlike Brewer v. Hoxie, there is no allegation in the complaint and no evidence to suggest that the defendants purposefully deprived others of their right to equal protection of the laws. In Brewer v. Hoxie School District No. 46, 238 F. 2d 91 (8th Cir. 1956), the desegregating school board sued the members of private segregationist vigilante groups such as “White America, Inc.,” “Citizens’ Committee Representing Segregation in the Hoxie Schools” and “White Citizens’ Council of Arkansas.” There was no claim made that these 19 groups operated with any official participation.13 Among other things, the school board alleged and proved that the defendants “attempted by fear and persuasion to deter the children from attendance at schools of the district” (238 F. 2d at 94). The Court of Appeals approved an injunction restraining the defendants “from in any manner deterring the attendance at school of children within said school dis trict” (238 F. 2d at 94). In holding that the action was properly brought under §1985(3), the Court of Appeals held that the school board could sue to protect the rights of the children (238 F. 2d at 104): Action taken by private individuals against a school board to prevent it from according equal protection of the laws to the school children would result in a deprivation of the school children’s rights under the Fourteenth Amendment. . . . # * # * # The school board having the duty to afford the chil dren the equal protection of the law has the correlative right, as has been pointed out, to protection in per formance of its function. Its right is thus intimately identified with the right of the children themselves. A fortiori, a child can sue to protect his own rights. This is made clear by the language of §1985(3) itself: The right of action is broadly given to “the party so injured or deprived,” not simply to the “constituted authorities of any State or Territory.” 13 See also Kasper v. Brittain, 245 F. 2d 92 (6th Cir. 1957), cert, denied, 355 U. S. 834 (1957) and Bullock v. United States, 265 F. 2d 683 (6th Cir. 1959), cert, denied, 360 U. S. 909, 932 (1959). 2 0 Finally, it should be observed that the past inutility of the statute stands in sharp contrast to the continuing need to protect the citizen’s right to equal protection of the laws —and particularly his right to a desegregated education— from private violence. Anyone who has read the report of the United States Commission on Civil Rights, Southern School Desegregation, 1966-67, pp. 74-108 (July, 1967), can have no doubt that private violence and intimidation re main important barriers to desegregated education today. To sum u p : the statutory language and history—and reason and authority—compel a holding which will restore §1985(3) as an enforceable instrument of Congressional policy. The day is late, but not too late to keep the promise the Nation made a century ago. II. Plaintiff Stated a Claim for R elief Under 42 U. S. C. § 1 9 8 5 (2 ) . Plaintiff alleged that the purpose of the claimed con spiracy was “to injure plaintiff and other Negro students in their persons and property for lawfully enforcing and attempting to enforce their rights to the equal protection of the laws” (A. 25-26). Since plaintiff had lawfully attempted to enforce his right to a desegregated education as specifically guaranteed by a federal court order, plaintiff clearly appeared to state a claim under the following provision of §1985(2): [I] f two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Terri 21 tory, with intent to deny to any citizen the equal pro tection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws. . . ,14 But the court below held that plaintiff could not state a sufficient claim under the invoked portion of §1985(2), ab sent an allegation of state action. Neither reason nor au thority supports this holding. On its face, the invoked portion of §1985(2) fits this case like a glove. By its plain language, it appears specifi cally drafted to reach conspirators who act to impede the enforcement of a court order guaranteeing a citizen’s right to the equal protection of the laws. Given the background of the Ku Klux Act of 1871, as previously analyzed, it makes little sense to suppose that Congress intended to reach only official conspirators in enacting this provision as part of §2 of that act. Nor do the few decided cases discussing the scope of this statutory provision support the holding below. None of them dealt with a claimed right to equality.15 This Court should enforce the provision according to its plain meaning. Jones v. Mayer, supra, 392 U. S. at 420-22. 14 The enforcement clause is contained in §1985(3), set out note 4, supra. 15 In Van Meter v. Sanford, 152 F. 2d 961 (5th Cir. 1946), re lief was denied on the ground that “there is nothing said in the petition about the equal protection of the laws, and petitioner is a white man, and not of the race specially intended to be protected by the statute” (152 F. 2d at 962). See also Mitchell v. Greenough, 100 F. 2d 184 (9th Cir. 1938), cert, denied 306 U. S. 659 (1939) (Held: No showing of a purpose to deprive the plaintiff of equal protection of the laws). CONCLUSION For the foregoing reasons, a federal court cannot refuse to hear proof of claims of such denials of federally pro tected civil rights as depicted by this ugly incident. If plaintiff proves his case, he should have his remedy at law. That is little enough, considering that, this case is merely exemplary of a much broader wrong. The broader remedy lies in the judicial recognition that, in many areas of this Circuit, the “freedom of choice” method of school desegregation does not work. Until this Court strikes at the system which produced plaintiff’s injury, he and others like him will be limited to their remedy at law. But at least they should have that. The judgment below should be re versed and plaintiff’s complaint reinstated. Respectfully submitted, J ack Greenberg Melvyn Zarr 10 Columbus Circle New York, New York 10019 Reuben V. A nderson 538% North Farish Street Jackson, Mississippi 39202 Attorneys for Plaintiff-Appellant CERTIFICATE OF SERVICE I hereby certify that on January 1969, I served two copies of the foregoing Brief for Plaintiff-Appellant upon T. H. Freeland, III, Esq., attorney for defendants-appel- lees, by United States airmail, postage prepaid at Box 269, Oxford, Mississippi 38655. Attorney for Plaintiff-Appellant RECORD PRESS, INC. — 95 Morton Street — New York, N. Y. 10014 — (212) 243-5775 38