Certificate of Service RE: Petition for Writ of Certiorari

    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