Louisiana State Board of Education v Jack Bailey Brief on Behalf of Appellants

    IN THE

-  UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 16,856

LOUISIANA STATE BOARD OF 
EDUCATION, ET AL.

versus

JACK BAILEY, ET AL.,

Appellants,

Appellees.

BRIEF ON BEHALF OF APPELLANTS.

JACK P. F. GREMILLION, 
Attorney General,

State of Louisiana,
Baton Rouge, Louisiana;

GEORGE M. PONDER,
First Assistant Attorney General.

WILLIAM P. SCHULER,
Assistant Attorney General.

WILLIAM C. BRADLEY,
Special Counsel for 

Attorney General,
Attorneys for Appellants.



Page

STATEMENT OF THE CASE............. ............................... 1

SPECIFICATION OF ERRORS..........................................  4

ARGUMENT:
This is a suit between a state and some of its 

citizens and the United States District Court 
is without jurisdiction..............................................  4

A suit to restrain the enforcement of a state statute 
on grounds of unconstitutionality is not within 
the province of a single-judge court............... —- 12

The Certificate of Eligibility Law is constitutional 
on its face and administered in a constitutional 
manner ....................................................-................  18

That evidence used by the Court to reach its decision
was inadmissable .... ..........................-..................  27

Plaintiffs should not have been granted a prelimi­
nary injunction without furnishing security---- 28

CONCLUSION ................... ----------------- -----....................... -  29

CERTIFICATE OF SERVICE........ .....................................  30

APPENDIX:

Statutes involved ----- -------------- -----.............................. 30

AUTHORITIES CITED.

California Water Service Co. v. City of Redding, 304
U. S. 252, 58 S. Ct. 865, 82 L. Ed. 1323; (1938) 15, 17

Caminetti v. United States, 242 U. S. 470, 61 L. Ed.
442, 37 S. Ct. 192 (1917).......... ................. - ........----- 21

Chisholm v. Georgia, 2 U. S. 2 Dali. 419 (1 :440) (1793) 5

SUBJECT INDEX.



a

Davis v. County School Board, 142 F. Supp. 616 (D. C., 
E. D. Va, 1956)..... ............. ........................................

Davis v. Schnell, 81 F. Supp. 872, (D. C., S. D., Ala., 
1949) .......................... ......................................................

Ex Parte Bransford, 310 U. S. 354, 60 S. Ct. 947, 84 
L. Ed. 1249 (1940)........................................................ .

Ex Parte Buder, 271 U. S. 461, 48 S. Ct. 557, 70 L. 
Ed. 1036 (1926)..............................................................

Ex Parte Collett, 337 U. S. 55, 93 L. Ed. 1207, 69 S. 
Ct. 944 (1949)......... .................... ....................................

Ex Parte Hobbs, 280 U. S. 168, 50 S. Ct. 83, 74 L. 
Ed. 353 (1929).... ................................. ...........

Ex Parte Poresky, 290 U. S. 30, 54 S. Ct. 3, 78 L. Ed. 
152 (1933) ...............................................................  14,

Ex Parte Young, 209 U. S. 123, 28 S. Ct., 441, 52 L. 
Ed. 714 (1908)...... .......................... ..............................9,

George Van Camp & Sons Co. v. American Can Co., 278,

U. S. 245, 49 S. Ct. 112, 73 L. Ed. 311 (1929)...........

Georgia R. & R. & Banking Co. v. Redwine, 342 U. S. 
299, 72 S. Ct. 321, 96 L. Ed. 335, (1952)...................

Hamilton v. Rathbone, 175 U. S. 414, 419, 421, 20 S. Ct. 
155, 158, 44 L. Ed. 219 (1899).............. ....... ............

Hans v. Louisiana, 134 U. S. 1, 12, 13, 14, 10 S. Ct. 504, 
33 L. Ed. 842, (1890)...................

Harkness v. Irion, 278 U. S. 92, 49 S. Ct. 40, 73 L. Ed. 
198 (1928) .......................................................................

SUBJECT INDEX— (Continued).

15

22

14

15

21

15

15

12

21

9

21

5

14



in

Litchfield v. Bridgeport, 103 Conn. 565, 131 A. 560
(1925) ..................................... .........................................  28

Marchese v. United States, 126 F. 2d 671 (C.C.A., 5,
1942) .......................................... ............................... ■..... 28

Orleans Parish School Board v. Bush, 242 F. 2d 156
(C.C.A. 5, 1947)............................................................... 22

Packard Motor Car Co. v. National Labor Relations 
Board, 330 U. S. 485, 91 L. Ed. 1040, 67 S. Ct.
789 (1947) ................................... ..................................  21

Phillips v. United States, 312 U. S. 246, 61 S. Ct. 480,
85 L. Ed. 800 (1941)................................... ........... 14

Russell Motor Car Co. v. United States, 261 U. S. 514,
43 S. Ct. 428, 67 L. Ed. 778 (1923).................... ....... 21

State v. Arkansas-Louisiana Gas Co., 78 So. 2d 825, 227 
La. 179 (S. Ct. La., 1955).......... .................................  22

State ex rel Noe v. Knop, 190 So. 135 (La. App. 1939)... 22

State v. Maestri, 5 So. 2d 499, 199 La. 49 (S. Ct., La.,
1941) .....................................................   22

Third District Land Company v. Toka, 170 So. 793 (La.
App., 1936) .....................     27

United States v. Barnes, 222 U. S. 513, 518, 519, 32 S.
Ct. 117, 56 L. Ed. 291-293 (1912)......... ...................... 21

United States v. Hartwell, 6 Wall 385, 18 L, Ed. 830____ 21

Yick Wo v. Hopkins, 118 U. S. 356, 366, 30 L. Ed. 220
(1886) ...................................................... ......................... 23

SUBJECT INDEX— (Continued).



/V

STATUTES CITED.

UNITED STATES CONSTITUTION:
Page

Amendment 11 ...............................................   5

LOUISIANA CONSTITUTION:
Article 19, Section 26....................................................  10
Article 12, Section 4........................................... ............  11
Article 12, Section 5...................................... ..................  11
Article 12, Section 7...................................... ..................  11

STATUTES:

United States:
28 U. S. Code 2281-2284...............................................2, 18
32 Stat. 823 (1903)........................................................  12
36 Stat. 1087, 1162 (1911)............................................ 13

Louisiana:
Act 15 of 1956 (R. S. 17:2131-2135)..............  1, 2, 18
Act 249 of 1956 (R.S. 17:443)................................  1, 2
Act 556 of 1954.......................................................... 23, 26
La. R.S. 17:13................................................................... 11

MISCELLANEOUS:

American Jurisprudence, Vol. 55, p. 10...... ......................... 20

Federal Rules of Civil Procedure:

Rule 6 5 (c )............................      28

Corpus Juris Secundum, Vol. 14, p. 1359...........................  20

Corpus Juris, Vol. 59, p. 1017............................. ................... 27
Cyclopedia of Federal Procedure:

Vol. 14, Sec. 73.30....................   9
Vol. 14, Sec. 73.55........................................................... 28



V

STATUTES CITED— (Continued).

81 Federalist.............................................................................  5

41 Harvard Law Review 628 (1928)....................................  14

Hutcheson, A Case for Three Judges, 47 Harvard Law
Review 795 (1934)...................................... ...................  14

Pogue, State Determination of State Law...........................  14

Moore’s Federal Practice, Vol. 3, Secs. 104.01 and 107.02 14



IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 16,856

LOUISIANA STATE BOARD OF 
EDUCATION, ET AL.

versus

JACK BAILEY, ET AL.,

Appellants,

Appellees.

BRIEF ON BEHALF OF APPELLANTS.

STATEMENT OF FACTS

: Plaintiffs filed a complaint in the United States
District Court for the Eastern District of Louisiana, on 
January 17, 1957, against Louisiana State Board of Educa­
tion, the individual members of the Board, Shelby M. Jack- 
son, State Superintendent of Education, Wayne N. Cusic, 
President, and Inez S. Moses, Registrar, of McNeese State 
College, seeking a temporary restraining order and prelimi­
nary and final injunctions to restrain the enforcement by 
officers of the State of Louisiana, of certain Louisiana Stat­
utes, to-wit: Louisiana Revised Statutes 17:443 and Revised 
Statutes 17:2131-2135 inclusive. In this complaint they al­
leged that the aforesaid statutes were contrary to the Four­



teenth Amendment of the United States Constitution in that 
said statutes deprived them and others simuiarly situated of 
rights, privileges and immunities secured by the Consti­
tution and Laws of the United States, to-wit: Rights secured 
by the equal protection and due process clauses of the Four­
teenth Amendment to the United States Constitution and 
Title 42, U.S.C., Section 1981; wherefore they prayed that 
a temporary restraining order issue enjoining Defendants 
from denying them the right to register at the college. They 
further prayed that a three-judge court be convened as re­
quired by Title 28, U.S.C., Sec. 2281-2284, and that a 
hearing be held to determine whether a preliminary and 
permanent injunction should issue enjoining defendants and 
their agents from refusing plaintiffs’ registration for 
the forth coming semester at the college, and that Lou­
isiana Revised Statutes 17:2131-2135 (Act 15 of 1956) and 
Louisiana Revised Statutes 17:443 (Act 249 of 1956) be 
found in violation of due process and equal protection clauses 
o f the Fourteenth Amendment of the United States Con­
stitution. (Tr. pp. 2-10)

On January 17, 1957, District Judge Herbert W. 
Christenberry issued a temporary restraining order enjoin­
ing defendants from refusing to register plaintiffs and others 
simularily situated at McNeese State College until the hear­
ing on said application for interlocutory injunction, and this 
temporary restraining order was extended from time to 
time until judgment on the interlocutory injunction (Tr. pp. 
24, 55, 56, 57, 58, 59, 60, 61).

A hearing on the interlocutory injunction was had 
on February 8, 1957, at which time appellants filed a motion 
to dismiss based on lack of jurisdiction of the court and the 
plaintiffs’ failure to state a claim upon which relief could 
be granted. (Tr. p. 27).

2



3

Appellants then filed their answer in the matter deny­
ing that the state statutes in question were contrary to or 
in violation of plaintiffs’ constitutional rights (Tr. pp. 44-49).

Appellants, in support of their position, filed an af­
fidavit of a college official which showed conclusively that 
the Certificate of Eligibility requirement had been applied 
uniformly to white and negro students seeking admission 
for the Spring Semester of 1957. (Tr. pp. 30-34).

At this point the Court consolidated this case with 
the cases of Lark v. Louisiana State Board of Education, 
et al. and Ludley v. Louisiana State University Board of 
Supervisors et al. (Tr. p. 53).

The Court heard argument of counsel on this and con­
solidated cases and reserved judgment thereon allowing both 
sides the opportunity to file memoranda in support of their 
position within twenty (20) days. (Tr. p. 54).

On April 15, 1957, the Court in its opinion held that 
Acts 249 and 15 of 1956 were unconstitutional in that they 
deprived plaintiffs of their constitutional guarantees. (Tr. 
pp. 62-69).

In conformity with said opinion, the Court issued a 
temporary injunction restraining defendants from refusing 
to admit any qualified applicant to McNeese State College 
for the purpose of pursuing a course of study offered by 
that college because of failure of the applicant to present 
the Certificate of Eligibility provided in Louisiana Revised 
Statutes 17:2131~2135. Application for new trial and rehear­
ing was filed on behalf of the appellants predicated on seven 
separate allegations of error on the part of the District 
Court. (Tr. pp. 71-73) This motion was denied on May 20, 
1957 (Tr. p. 74).



Having exhausted all remedies before the lower court, 
appellants, on May 29, 1957 filed a notice of appeal (Tr. pp.
74- 75), and filed the necessary bond for costs (Tr. pp.
75- 77).

SPECIFICATION OF ERRORS
The Lower Court erred in holding:

That this was not a suit against the State of 
Louisiana, and therefore was within the Feder­
al judicial authority.

That, since there was no serious constitutional 
question, a three-judge court did not have to 
be convened.

I.

II.

III.

IV.

V.

That the Louisiana Eligibility Law was uncon- 
constitutional.

That the evidence used to determine legisla­
tive intent was admissable.

That plaintiffs were entitled to a perliminary 
injunction even though they filed no security 
bond.

THE UNITED STATES DISTRICT COURT IS 
WITHOUT JURISDICTION TO MAINTAIN 
A SUIT BETWEEN A  STATE AND ONE 

OF ITS CITIZENS.

The District Court erroneously overruled the motion 
to dismiss and plea to the jurisdiction filed on behalf of the 
State of Louisiana and all defendants. Said motion was 
based upon the fact that this in effect was a suit against 
the State of Louisiana and was predicated upon the firmly 
established precept of law that a United States Court cannot 
entertain jurisdiction of a suit brought against a state by 
any individual without the consent of such state.



5

The original enacters of the United States Constitu­
tion believed that the sovereign states were immune from 
suit.

81 Federalist.

The first federal inroad to this basic concept of law 
was made by the Supreme Court of the United States in 
Chisholm v. Georgia, 2 U. S. 2 Dali. 419 [1:440] (1793)

This decision created such a shock of surprise through­
out the country that, at the first meeting of Congress there­
after, the Eleventh Amendment to the Constitution was 
almost unanimously proposed, and was in due course adopted 
by the Legislatures of the states. This amendment, which 
provides as follows, expressing the will of the ultimate sov­
ereignty of the whole country, superior to all legislatures 
and all courts, actually reversed the decision of the Supreme 
Court:

“ The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United 
States by citizens of another State or by citizens or 
subjects of any foreign state.”

In the case of Hans v. Louisiana, 134 U. S. 1, 12, 13, 
14, 10 S. Ct. 504, 33 L. Ed. 842, (1890), Mr. Justice Bradley 
discussed the intent of some of the strong advocates of adop­
tion of the Constitution, with respect to a state’s immunity 
to suit:

“Looking back from our present standpoint at the 
decision in Chisholm v. Georgia, we do not greatly 
wonder at the effect which it had upon the country.
Any such power as that of authorizing the federal 
judiciary to entertain suits by individuals against the



6

States had been expressly disclaimed, and even re­
sented, by the great defenders of the Constitution 
whilst it was on its trial before the American people. 
As some of their utterances are directly pertinent 
to the question now under consideration, we deem it 
proper to quote them.

“ The 81st number of the ‘Federalist’, written by 
Hamilton, has the following profound remarks:

* * ❖  *

“  ‘It is inherent in the nature of sovereignty not to 
be amendable to the suit of an individual without 
its consent. This is the general sense and the gener­
al practice of mankind; and the exemption, as one 
of the attributes of sovereignty, is now enjoyed by 
the government of every State in the Union. Un­
less, therefore, there is a surrender of this immunity 
in the plan of the convention, it will remain with the 
States, and the danger intimated must be merely 
ideal.’

*}• •{*

“ The obnoxious clause to which Hamilton’s argument 
was directed, and which was the ground of the objec­
tions which he so forcibly met, was that which de­
clared that ‘the judicial power shall extend to all . . . 
controversies between a State and citizens of an­
other State, . . . and between a State and Foreign 
states, citizens or subjects.’ It was argued by the 
opponents of the Constitution that this clause would 
authorize jurisdiction to be given to the federal 
courts to entertain suits against a State brought by 
the citizens of another State, or of a foreign state.



7

Adhering to the mere letter, it might be so ; and so, 
in fact, the supreme court held in Chisholm v. 
Georgia; but looking at the subject as Hamilton did, 
and as Mr. Justice Iredell did, in the light of history 
and experience and the established order of things, 
the views of the latter were clearly right,— as the 
people of the United States in their sovereign capaci­
ty subsequently decided.

“ But Hamilton was not a l o n e  in protesting 
against the construction put upon the Constitu­
tion by its opponents. In the Virginia convention the 
same objections were raised by George Mason 
and Patrick Henry, and were met by Madison and 
Marshall as follows. Madison said: ‘Its jurisdiction’ 
(the federal jurisdiction) ‘in controversies between 
a State and citizens of another State is much ob­
jected to, and perhaps without reason. It is not in 
the power of individuals to call any State into court. 
The only operation it can have is that, if a State 
should wish to bring a suit against a citizen, it must 
be brought before the federal court. This will give 
satisfaction to individuals, as it will prevent citizens 
on whom a State may have a claim being dissatisfied 
with the state courts. . . It appears to me that this 
(clause) can have no operation but this—to give a 
citizen a right to be heard in the federal courts; 
and if a State should condescend to be a party, this 
court may take cognizance of it.’ 3 Elliot’s Debates, 
533. Marshall, in answer to the same objection, said: 
‘With respect to disputes between a State and the 
citizens of another State, its jurisdiction has been 
decried with unusual vehemence. I hope that no 
gentleman will think that a State will be called at



8

the bar of the federal court. . . It is not rational to 
suppose that the sovereign power should be dragged 
before a court. The intent is to enable States to re­
cover claims of individuals residing in other States 
. . . But, say they, there will be partiality in it if 
a State cannot be a defendant— if an individual can­
not proceed to obtain judgment against a State, 
though he may be sued by a State. It is necessary 
to be so, and cannot be avoided. I see a difficulty 
in making a State defendant which does not prevent 
its being plaintiff.’ ”  Id. 555

In the same opinion Mr. Justice Bradley held that the 
Eleventh Amendment applies equally to suits brought against 
the state by one of its own citizens by stating:

“ . . . Can we suppose that, when the 11th Amend­
ment was adopted, it was understood to be left open 
for citizens of a State to sue their own State in the 
federal courts, whilst the idea of suits by citizens 
of other States, of foreign states, was indignantly 
repelled? Suppose that Congress, when proposing 
the 11th Amendment, has appended to it a proviso 
that nothing therein contained should prevent a 
State from being sued by its own citizens in cases 
arising under the Constitution or laws of the United 
States: can we imagine that it would have been 
adopted by the States? The supposition that it 
would is almost an absurdity on its face.

“ The truth is, that the cognizance of suits and 
actions unknown to the law, and forbidden by the 
law, was not contemplated by the Constitution 
when establishing the judicial power of the United 
States. . .



9

“ This has been so often laid down and acknow­
ledged by courts and jurists that it is hardly neces­
sary to be formally asserted. .

The next judicial inroad to the fundamental principal 
of immunity of the state from suit occurred when the Supreme 
Court decided the case of Ex Parte Young, 209 U. S. 123, 
28 S. Ct. 441, 52 L, Ed. 714 (1908).

In that decision recently cited with approval in 
(Georgia R. R. & Banking Co. v. Redwine, 342 U. S. 299, 
72 S. Ct. 321, 96 L. Ed. 335, (1952) the court held that 
a state officer could be enjoined from taking or instituting 
any action or proceeding to enforce the penalties and reme­
dies set forth in an unconstitutional state act.

This decision, however, laid down at least one re­
straint on the power of the Federal Court, to declare un­
constitutional statutes of a state. This limitation is that the 
defendants in a suit, to test the constitutionality of an act, 
must be persons who are charged with the enforcement of 
the act. The court so stated in the following language:

“ In making an officer of the state a party de­
fendant in a suit to enjoin the enforcement of an 
act alleged to be unconstitutional it is plain that 
such officer must have some connection with the 
enforcement of the act, or else it is merely making 
him a party as a representative of the state, and 
thereby attempting to make the state a party.”

This doctrine has been recognized by the text books 
dealing with Federal Practice. The Cyclopedia of Federal 
Procedure, Third Edition, Volume 14, Section 73:30 states 
it as follows:

“ If a suit is to enjoin a state officer from enforc-



10

ing a state statute on the ground that it violates 
the Federal Constitution, the officer or officers 
connected with the enforcement of the statute 
should be joined as defendants, to preclude objec­
tion that the suit is one against the state. But 
only those charged with the enforcement of the 
statute should be joined as defendants.”

It is most appropriate at this time to look at the 
facts revealed in the case at bar in relation to the foregoing 
principles of law. The State of Louisiana by constitutional 
amendment specifically withdrew the consent of the state 
to a suit against the State Board of Education and the 
State Superintendent of Public Education. Article XIX, 
Section 26, reads as follows:

“ Section 26. The following named commissions, 
boards, bodies or municipal corporations shall be 
considered special agencies of the State of Louisiana:

$  $  $  $

“ (5) The State Board of Education,
* * * *

“ (9) The State Superintendent of Public Educa­
tion in his capacity as such as well as in the 
capacity of ex-officio secretary of the State Board 
of Education, and

% * *

“ The consent of the State of Louisiana to suits 
or legal proceedings against any of the above 
listed special agencies, (however heretofore given) 
is hereby expressly withdrawn and no such suit or 
proceeding shall be permitted except as provided 
in this section. . . . ”



11

Despite the above provisions of Louisiana Constitu­
tion, plaintiffs herein saw fit to make the State Board of 
Education and the State Superintendent of Education, 
parties defendant along with the President and Registrar 
of the college, and the individual members of the Board of 
Education.

The State Board of Education is created by the 
constitution of the State of Louisiana (Article 12, Section 
4). Its right to supervise the college involved herein 
and also granted by the Constitution (Article 12, Section 7).

The position of the State Superintendent of Public 
Education is created by the Constitution (Article 12, Sec­
tion 5) and the duties of the office are set forth in Louisi­
ana Revised Statute 17 :13.

A  careful reading of these laws will clearly show 
that they do not confer upon these state officials any 
power to enforce the provisions of Act 15 of 1956. Probably 
the only person made defendant in this suit who has en­
forcement power is the Registrar of the college. The joinder 
of these parties who have no enforcement power brings this 
within the class of a prohibited suit against the State of 
Louisiana.

The other act attacked by plaintiffs is Act 249 of 
1956. This act prohibits certain actions on behalf of per­
manent teachers of the State of Louisiana. This act clearly 
provides that it shall be enforced by the school board of the 
parish or city as the case may be. Not only do the defend­
ants in this suit lack the power of enforcement of this 
statute, they do not have the remotest connection with the 
statute in any phase. There can be no doubt that under 
the rule set forth above, this is, clearly and unalterably, a 
suit brought against the State of Louisiana and thereby



12

prohibited by the 11th Amendment to the United States 
Constitution.

A  SINGLE JUDGE, UNITED STATES DISTRICT COURT 
IS WITHOUT JURISDICTION TO HEAR THE 

QUESTION OF CONSTITUTIONALITY OF A
STATE STATUTE WHERE INJUNCTIVE 

RELIEF IS REQUESTED

In March of 1911 the Congress enacted laws which 
prohibited a single United States District Court Judge 
from exercising his power to grant injunctive relief when 
the constitutionality of a state statute is in question. His­
torically this statute was a direct result of a Supreme 
Court decision.

Prior to the case of Ex Parte Young, 209 U. S. 
123, 28 S. Ct., 441, 52 L. Ed. 714 (1908), the sole function 
of a three-judge court was to entertain, under specified cir­
cumstances, equity suits arising under the Sherman Anti- 
Trust Act and the Interstate Commerce Act. 32 Stat. 823 
(1903). No thought has been given to the establishment of 
three-judge courts with jurisdiction over matters pertain­
ing to injunctive relief sought against state action, as the 
general feeling prevailed that such actions were barred 
under the Eleventh Amendment. However, this opinion 
proved to be erroneous.

In Ex Parte Young, officers of the State of Min­
nesota attempted to enforce transportation rates estab­
lished by the State Legislature, and stockholder of a rail­
road sought an injunction in a single-judge Federal Court 
against the enforcement of the statute on the grounds that 
it violated the federal constitution. The judge granted the 
injunction. The Attorney General of Minnesota refused, 
however, to obey the injunction, whereupon the Federal



13

Court convicted him for contempt. In refusing the release 
of the Attorney General on habeas corpus, the United 
Court and set down the rule that notwithstanding the 
Eleventh Amendment which prohibits individual suits 
against a state, federal courts, under appropriate circum­
stances, can issue injunctions against state officials seeking 
to enforce state statutes that violate the United States 
Constitution. Justice Harlan, in a strong dissenting opin­
ion, pointed out that if the principles announced in the 
majority opinion became “ firmly established . . .  it would 
enable the subordinate Federal Courts to supervise and 
control the official action of the States as if they were 
‘dependencies’ or provinces.”  209 U. S. at 175. This feel­
ing was more strongly echoed among the states. Since the 
Federal Courts did not wish to release all power over such 
injunctive relief, the protest of the states at being subjected 
to the possible abuse of such injunctive powers vested in a 
single federal judge called for a compromise. Therefore, 
in 1911, Congress provided for three-judge courts, similar 
to the three-judge courts today, with exclusive juris­
diction to entertain petitions for injunctive relief against 
the enforcement by state officials of unconstitutional state 
statutes. (Act of March 3, 1911, 36 Stat. 1087, 1162). The 
three-judge court device was adopted in the belief that the 
more careful consideration afforded each case when it 
was considered by three judges would minimize the pos­
sibility of arbitrary abuse of the injunctive power.

The major distinction between the 1911 three-judge 
courts and those as presently constituted is that the former 
were authorized to hear applications solely for interlocu­
tory injunctions while the latter are authorized to enter­
tain applications for permanent injunctions as well. Var­
ious amendments have increased the jurisdiction of the



14

three-judge court to include orders of state boards or com­
missions as well as state statutes; to include petitions for 
final as well as interlocutory injunction; to add the an- 
alagous statute granting injunctive relief from the opera­
tion of unconstitutional federal statutes; and to perfect the 
method of direct appeal to the United States Supreme Court. 
For a detailed discussion of the history of these statutes 
as well as of the early case law construing them, see 3 
MOORE, FEDERAL PRACTICE E, (1st ed. 1938) Secs. 
104.01 and 107.02; Pogue, State Determination of State 
Law, 41 Harv. L. REV. 623 (1928) ; Hutcheson, A CASE 
FOR THREE JUDGES, 47 HARV. L. REV. 795 (1934).

The Supreme Court of the United States further 
limited the scope of the three-judge court by decreeing that 
the constitutional question presented to the court must be 
a substantial question of unconstitutionally. If such sub­
stantial constitutional question is not presented then there 
is no necessity of invoking the three-judge court.

Ex Parte Poresky, 290 U. S. 30, 54 S. Ct. 3, 78
L. Ed. 152. (1933)

It would appear that a substantial constitutional 
question is not raised in the following instances:

(1) Where the question is whether an officer is ex­
ceeding the power granted to him.

Harkness v. Irion 278 U. S. 92, 49 S. Ct. 40, 73
L. Ed. 198 (1928) ;
Phillips v. United States, 312 U. S. 246, 61 S. Ct.
480, 85 L. Ed. 800; (1941)
Ex Parte Bransford, 310 U. S. 354, 60 S. Ct. 947,
84 L. Ed. 1249 (1940).

(2) Where the plaintiff concedes the constitution­
ality of the statute.



15

Ex Parte Hobbs, 280 U. S. 168, 50 S. Ct. 83, 74 
L. Ed. 353 (1929).

(3) Where the U. S. Supreme Court has previous­
ly declared the statute directly unconstitutional.

Davis v. County School Board, 142 F. Supp. 616 
(D.C., E.D. Va, 1956)

(4) Where there is a question of interpretation of 
laws rather than a question of constitutionality.

Ex Parte Buder, 271 U. S. 461, 48 S. Ct. 557,
70 L. Ed. 1036 (1926)

(5) Where there is no substantial claim of uricon- 
stitutionality as a result of previous decisions.

California Water Service Company v. City of 
Redding, 304 U. S. 252, 58 S. Ct. 865, 82 L. Ed. 
1323; (1938)

Without question the matter at bar does not fall 
into either of the first four classifications. Upon careful 
consideration it is also evident that exception No. 5 is not 
applicable in this case. In regards to this there has been 
a rather general trend for writers on the subject to say 
that a three-judge court is not necessary unless there is a 
substantial claim of constitutionality present. While this is 
true it could leave doubt in an area in which non exists. 
The actual test is not whether there is a serious question of 
constitutionality, but whether there is a serious question of 
unconstitutionality present. Probably the landmark case 
on this question is the case of Ex Parte Poresky, 290 U. S. 
30, 54, S. Ct. 3, 78 L. Ed. 152 (1933). In that case the 
Court definitely decided that where the claim that a 
statute was unconstitutional was obviously unsound there



16

was no necessity of invoking a three-judge court. The 
court said on page 31:

“ The District Judge recognized the rule that if the 
court was warranted in taking jurisdiction and the 
case fell within § 266 of the Judicial Code, a single 
judge was not authorized to dismiss the complaint 
on the merits, whatever his opinion of the merits 
might be. Ex parte Northern Pacific Ry. Co., 280 
U. S. 142, 144; Stratton v. St. Louis S. W. Ry. Co.,
282 U.S. 10, 15. But the provision requiring the 
presence of a court of three judges necessarily 
assumes that the District Court has jurisdiction.
In the absence of diversity of citizenship, it is 
essential to jurisdiction that a substantial federal 
question should be presented. ‘A substantial claim 
of unconstitutionality is necessary for the appli­
cation of § 266.’ Ex parte Buder, 271 U. S. 461,
467; Louisville & Nashville R. Co. v. Garrett, 231 
U. S. 298, 304. That provision does not require 
three judges to pass upon this initial question of 
jurisdiction.

“ The existence of a substantial question of constitu­
tionality must be determined by the allegations of the 
bill of complaint. Mosher v. Phoenix, 287 U. S. 29,
30; Levering & Garrigues Co. v. Morrin, 289 U. S.
103, 105. The question may be plainly unsubstantial, 
either because it is ‘obviously without merit’ or be­
cause ‘its unsoundness so clearly results from the 
previous decisions of this court as to foreclose the 
subject and leave no room for the inference that the 
question sought to be raised can be the subject of 
controversy.’ ”

Again in the case of California Water Service Company



17

v. City of Redding, 304 U. S. 252, 58 S. Ct. 865, 82 L. Ed. 
1323 (1938) the Court decided that a three-judge court was 
not necessary because the statute involved had already been 
declared constitutional by the Supreme Court and, therefore, 
no serious question of unconstitutionality was raised. The 
Court stated as follows:

“We are of the opinion that these rulings were cor­
rect. We have held that § 266 of the Judicial Code 
does not apply unless there is a substantial claim of 
the unconstitutionality of a state statute or admini­
strative order as there described. It is therefore the 
duty of a district judge, to whom an application for 
an injunction restraining the enforcement of a state 
statute or order is made, to scrutinize the bill of 
complaint to ascertain whether a substantial federal 
question is presented, as otherwise the provision for 
the convening of a court of three judges is not 
applicable. Ex parte Buder, 271 U. S. 461, 467; Ex 
parte Poresky, 290 U. S. 30. We think that a similar 
rule governs proceedings under § 3 of the Act of 
August 24, 1937, as to the participation of three 
judges in passing upon applications for injunctions 
restraining the enforcement of federal statutes upon 
the ground of constitutional invalidity. Had the deci­
sions in the cases of Alabama Power Co. v. Ickes, 
supra, and of Duke Poiver Co. v. Greenwood County,
302 U. S. 485, been rendered prior to the filing of 
the bill of complaint in the instant case, no sub­
stantial federal question would have been presented.
The lack of substantiality in a federal question may 
appear either because it is obviously without merit 
or because its unsoundness so clearly results from the



18

previous decisions of this Court as to foreclose the 
subject. . . . ”

In view of the above it is clear that prior court 
decisions can only obviate the necessity for invoking a three- 
judge court when the prior decisions have left no doubt that 
the statute is constitutional and there can be no possibility 
of an injunction issuing against the enforcement of such 
statute. Since there is a question as to the constitutionality 
of two state statutes in this matter, the District Court 
should have invoked the mandatory provisions of 28 U. S. C. 
2281-2284.

THAT THE LOUISIANA LAW REQUIRING STUDENTS
SEEKING ADMISSION TO PRESENT A 

CERTIFICATE OF ELIGIBILITY 
IS CONSTITUTIONAL

In the regular session of 1956 the Legislature of the 
State of Louisiana passed Act 15 of 1956 (La. R.S. 17:- 
2131-2135, inclusive) which reads as follows:

“ Be it enacted by the Legislature of Louisiana:

“ Section 1. No person shall be registered at or ad­
mitted to any publicly financed institution of higher 
learning of this state unless he or she shall have first 
filed with said institution a certificate addressed to 
the particular institution sought to be entered attest­
ing to his or her eligibility and good moral character.
This certificate must be signed by the Superinten­
dent of Education of the Parish, County, or Munici­
pality wherein said applicant graduated from High 
School, and by the principal of the High School 
from which he graduated.

“ Section 2. The form of the above referred to certifi­
cate shall be prepared by the Department of Educa­



19

tion of the State of Louisiana, and a sufficient num­
ber thereof shall be furnished to each Superintendent 
of Education through the State to meet the annual 
requirements of those seeking admission to the above 
institutions. He shall furnish sufficient copies thereof 
to applicants residing outside the State of Louisiana 
who apply therefor.

“ Section 3. Each student graduating from any pub­
lic High School in the State of Louisiana shall be 
given proper notice of the above requirement at the 
time of his or her graduation; all publicly financed 
institutions of higher learning shall incorporate in 
their annual catalogues proper notice that the above 
referred to certificate is an essential requirement 
for admission.

“ Section 4. Any official or employee of any institu­
tion of higher learning financed by the State of 
Louisiana who admits any student to said institu­
tion in violation of the provisions of this Act shall 
be deemed guilty of committing a misdemeanor and 
upon conviction thereof shall be fined not more than 
$500.00 or imprisoned for not more than six months, 
or both.

“ Section 5. The State Board of Education and/or 
the Board of Supervisors of Louisiana State Univer­
sity and Agricultural and Mechanical College are 
hereby especially authorized and empowered to adopt 
such other entrance requirements, including apti­
tude and medical examinations, as in their judgment 
may be fit and proper.

“ Section 6. All laws or parts of laws in conflict 
herewith are hereby repealed.”



20

An examination of the above quoted statute shows 
beyond question that the legislature desired each and every 
student applying for admission to a publicly financed insti­
tution of high learning to furnish the institution, a Certifi­
cate of Eligibility, which certificate shall attest to the good 
moral character and qualifications of said applicant.

That requirements of the above nature are well within 
the province of the legislature to establish is without ques­
tion. As stated in 55 Am. Jur. 10:

“ The right to attend the educational institutions of 
a state is not a natural one, but is a benefaction 
of the law. One seeking to become a beneficiary of 
this gift must submit to such conditions as the law 
imposes as a condition precedent thereto. Hence, 
where a legislature, acting under a constitutional 
mandate, establishes a university, it may also legis­
late as to what persons are entitled to be admitted 
to its privileges and to instruction therein.”

See also:
14 C. J. S. 1359:

“ The legislature may properly regulate the conditions 
on which students may be admitted to a university 
maintained by the state, and under delegated author­
ity and in the reasonable exercise of its discretion 
the governing body of a state college or university 
may establish rules as to admission of students.”

Nowhere in the complaint does plaintiff aver that any 
of defendants have administered Act 15 of 1956 unfairly or 
partially. Affidavits of various college officials show affirma­
tively that the eligibility certificate law was uniformly 
applied to all applicants for admission to the college regard­
less of race or color. (Tr. pp. 32-38)



21

The contention of plaintiff in this matter appears to 
be that Act 15 is not in itself unconstitutional, but that Act 
249 and other non-related acts of the Louisiana Legislature 
show that the enacters intended Act 15 to be a part of a 
system to deprive plaintiffs of their constitutional rights.

Act 15 is a complete act within itself and depends 
upon no implementation from other acts of the legislature 
either in effect at the time nor passed at the same session 
of the legislature.

Plaintiff in their contention run afoul of the unquali­
fied legal doctrine that none of the rules of statutory con­
struction should or may be used to ascertain the meaning 
or application of a statute since the rules of statutory con­
struction have no place except in the domain of ambiguity.

See:
United States v. Hartwell, 6 Wall 385, 18 L. 

Ed. 830
George Van Camp & Sons Co. v. American Can 

Co., 278 U. S. 245, 49 S. Ct. 112, 73 L. Ed. 
311 (1929)

Hamilton v. Rathbone, 175 U. S. 414, 419, 421, 
20 S. Ct. 155, 158, 44 L. Ed. 219 (1889).

Russell Motor Car Co. v. United States, 261, 
U. S. 514, 43 S. Ct. 428, 67 L. Ed. 778 (1923).

United States v. Barnes, 222 U. S. 513, 518, 
519, 32 S. Ct. 117, 56 L. Ed. 291-293 (1912).

Caminetti v. United States, 242 U. S. 470, 61 
L. Ed. 442, 37 S. Ct. 192 (1917).

Packard Motor Car Co. v. National Labor Rela­
tion Board, 330 U. S. 485, 91 L. Ed. 1040, 
67 S. Ct. 789 (1947).

Ex Parte Collett, 337 U. S. 55, 93 L. Ed. 1207, 
69 S. Ct. 944 (1949).



22

State v. Maestri, 5 So. 2d 499, 199 La. 49.—  
(S. Ct., La., 1941).

State v. Arkansas-Louisiana Gas Co., 78 So. 2d 
825, 227 La. 179 (S. Ct., La., 1955).

State ex rel Noe v. Knop, 190 So. 135 (La. App., 
1939).

The District Court in using- other acts to determine 
the constitutionality of Act 15 used the cases of Orleans Par­
ish School Board v. Bush, 242 F. 2d 156 (C. C. A. 5, 1947) and 
Davis v. Schnell, 81 F. Supp. 872, (D.C. S.D., Ala., 1949) 
to support its contention that other acts should be used to 
determine the legislative intent. These two cases may be 
distinguished on the factual situations.

In Davis v. Schnell, while the Court mentioned an­
other act (Title 17, Sec. 33, Code of Alabama 1940) in 
its statement of facts it never once in its opinion referred 
to that act or used that act to determine the constitution­
ality of the “ Boswell Amendment” . Further, if the Court 
had used another act to determine the contitutionality 
of the Boswell Amendment, it is clear that it had a 
right to do so since it found that the Boswell Amendment 
was ambiguous. It so held in the following language:

“ When a word or phrase in a statute or constitu­
tion is ambiguous, it is the duty of the court, in 
construing the meaning of that word or phrase, 
to attempt to determine whether an exact mean­
ing was intended and if so, to ascertain that mean­
ing. If an exact meaning of the phrase “ under­
stand and explain” were to be discovered by a 
process of construction in this case, it might be 
that a suitable and definite standard could be 
found, which would not give to the board of regis­
trars arbitrary power. However, a careful consid­



23

eration of the legislative arid other history of the 
adoption of this Amendment at the Constitution 
of Alabama discloses that the ambiguity inherent 
in the phrase “ understand and explain”  cannot be 
resolved, but, on the contrary, was purposeful and 
used with a view of meeting the decision of the 
Supreme Court of the United States in Smith v. 
AUwright, 321 U. S. 649, 64 S. Ct. 757, 88 L. Ed.
987, 151, A.L.R. 1110. The history of the period 
immediately preceding the adoption of the Boswell 
Amendment, of which we take judicial notice, and 
the evidence in this case prove this.

In the case of Orleans Parish School Board v. Bush, 
242 F. 2d 156, the court did not actually use other statutes 
to find Act 556 unconstitutional. The Court definitely said 
this in the following language:

“ Thus we need not determine whether the enact­
ment of this law contemporaneously with Act 555 
and closely following the readoption of the racially 
separate schools provision of the state constitu­
tion,. . . is sufficient of itself to condemn it as 
part of the illegal legislative plan comprehended 
in Act 555, although this is precisely the type of 
determination on which the three judge court in 
Davis v. Schnell, supra, based its decision striking 
down an amendment to the Alabama constitution.”

The District Court cited the above two cases in 
addition to the case of Yick Wo v. Hopkins, 118 U. S. 
356, 30 L. Ed. 220, which it felt supported its decision 
herein. All three of these cases are clearly distinguish­
able on other grounds, in that in all three cases the law 
attacked gave to agencies discretion in the performance



of their duties, and the particular statutes allowed these 
officials to exercise that discretion arbitrarily, according 
to whim or caprice.

In the case of Yiek Wo v. Hopkins, 118 U. S. 356, 
366, 30 L. Ed. 220, the Court stated as follows:

“ That court considered these ordinances as vesting 
in the board of supervisors a not unusual discre­
tion in granting or withholding their assent to the 
use of wooden buildings as laundries, to be exercised 
in reference to the circumstances of each case, 
with a view to the protection of the public 
against the dangers of fire. We are not able to 
concur in that interpretation of the power con­
ferred upon the supervisors. There is nothing in 
the ordinances which points to such a regulation 
of the business of keeping and conducting laun­
dries They seem intended to confer, and actually 
do confer, not a discretion to be exercised upon a 
consideration of the circumstances of each case, 
but a naked and arbitrary power to give or with­
hold consent, not only as to places, but as to per­
sons. So that, if an applicant for such consent, 
being in every way a competent and qualified per­
son, and having complied with every reasonable 
condition demanded by any public interest, should, 
failing to obtain the requisite consent of the super­
visors to the prosecution of his business, apply for 
redress by the judicial process of mandamus, to 
renuire the supervisors to consider and act upon 
his case, it would be a sufficient answer for them 
to say that the law had conferred upon them 
authority to withhold their assent, without reason 
and without responsibility. The power given to

24



25

them is not confied to their discretion in the legal 
sense of that term, but is granted to their mere will.
It is purely arbitrary, and acknowledges neither 
guidance nor restraint.”

See also:

Davis v. Schnell, 81 F. Supp. 872 at page 
880:

“ To state it plainly, the sole test is: Has the 
applicant by oral examination or otherwise under­
stood and explained the Constitution to the satis­
faction of the particular board? To state it more 
plainly, the board has a right to reject one ap­
plicant and accept another, depending solely upon 
whether it likes or dislikes the understanding and 
explanation offered. To state it even more plain­
ly, the board, by the use of the words “ understand 
and explain,”  is given the arbitrary power to ac­
cept or reject any prospective elector that may 
apply, or, to use the language of Yick Wo v. 
Hopkins, 118 U.S. 856, 866, 6 S. Ct. 1064, 1069,
30 L. Ed. 330, these words “ actually do confer, 
not a discretion to be exercised upon a considera­
tion of the circumstances of each case, but a 
naked and arbitrary power to give or withhold

consent * *

See also:
Orleans Parish School Board v. Bush, 242 

F. 2d 156 at page 164:

“Whatever might be the holding as to the validity 
of an administrative pupil assignment statute con­
taining reasonably certain or ascertainable stand-



26

ards to guide the official conduct of the superin­
tendent of the local school board and to afford 
the basis for an effective appeal from arbitrary 
action, Act 556 is not such a statute. The plain­
tiffs, seeking to assert their right to attend non- 
segregated schools as guaranteed them under the 
Constitution, would be remitted to an administra­
tive official guided by no defined standards in the 
exercise of his discretion. In such circumstances 
no number of hearings or appeals would avail 
them anything because it would be impossible 
for them to bring forward any proof bearing on 
whether they possessed those attributes, quali 
fications or characteristics that would b r i n g  
them within the group of students permitted to 
attend the particular school or schools. Attempts 
by Statute to give any official the power to assign 
students to schools arbitrarily according to whim 
or caprice are legally impermissible, especially if 
considered in light o f the history of assignments 
made in a manner that has now been held to be 
unconstitutional and of the recently readopted 
requirement of the state constitution reaffirming 
such unconstitutional standards, which is rein­
forced by the heavy sanctions against any official 
permitting a departure therefrom contained in a 
companion statute. Such a statute is unconstitu­
tional either because it has on its face the effect 
of depriving appellees of their liberty or property 
without due process of law or as having implied 
as its only basis for assignments the prohibited 
standard of race.”

The facts in this case are entirely different than



27

those set forth in the cases above. The statute herein 
leaves no room for the exercise of any discretion what­
soever. The admission o f any student to the College 
under this statute is purely a ministerial function. If the 
student has a Certificate of Eligibility and is otherwise 
qualified, he will be admitted. I f the student has all other 
qualifications, but does not have a Certificate of Eligibil­
ity, he cannot be admitted to the college.

THAT THE EVIDENCE USED BY COURT TO 
DETERMINE LEGISLATIVE INTENT 

WAS CLEARLY INADMISSABLE
In the trial below the plaintiff presented absolutely 

no evidence whatsoever which would show the intent of the 
Legislature. However, the Court on its own motion tried to 
determine the legislative intent in enacting Act 15 by delving 
into the legislative history thereof.

The State of Louisiana does not keep any minutes of 
the committee meetings on any particular bill or on debate 
of a bill in either the House or Senate. Even if such debate 
on the floor of either of the chambers or of the committee 
were available such would not be admissable to determine 
legislative intent.

Third District Land Company v. Toka, 170 So. 798 
(La. App. 1936)
Beck v. Fanion, 124 Conn. 549, 1 A. 2d 143 (1938)

It would appear that the Court based its decision in 
this case to a large degree upon statements made by one 
and/or some Legislators, referred to in 17 La. Law review 112. 
It is clear that these statements of individual Legislators as 
to their understanding of acts passed is clearly inadmissable. 
As stated in 59 C. J., 1017:

“ The intention of the legislature to which effect must 
be given is that expressed in the statute, and the



28

courts cannot inquire into the motives which influ­
enced the legislature, or individual members, in vot­
ing for its passage; nor indeed as to the intention 
of the draftsman; or the legislature so far as it has 
not been expressed in the act. So, in ascertaining 
the meaning of a statute, the court will not be gov­
erned or influenced by the views or opinion of any 
or all of the members of the legislature or its legis­
lative committees, or of any other person.”

This same rule of law applies even if the statements 
are made by draftors of the particular legislation or by 
members of the legislative committee.

Litchfield v. Bridgeport, 103 Conn. 565, 131 A. 560 
(1925)
Marchese v. United States, 126 F. 2d 671 (C.C.A.
5 1942)
Third District Land Company v. Toka, supra

A PRELIMINARY INJUNCTION SHOULD NOT 
HAVE ISSUED WITHOUT A BOND FOR SECURITY

On April 15, 1957 the District Court issued a prelimi­
nary injunction against defendants herein enjoining them 
from denying admission to any otherwise qualified student 
because of failure to produce a Certificate of Eligibility (Tr. 
p. 121). The plaintiffs in this suit had not filed a security 
bond either upon granting of the temporary restraining order 
or this preliminary injunction, nor have they done so to date. 
Rule 65(c) (F.R.C.P.) provides definitely that no restraining 
order or preliminary injunction shall issue except upon giv­
ing of security by the applicant.

Cyclopedia of Federal Procedure Vol. 14, Sec. 73.55

Since applicants herein failed to comply with the 
direct provisions of law the court erred in granting the said



29

preliminary injunction, and the same should be dissolved.
Holahan v. Holahan, 11 Fed. Rules Serv. 65c.l,
Case 1, 8 F.R.D. 221
Chatz v. Freeman et al, 204 F. 2d 764, (C.C.A. 7,
1958)
Hopkins et al. v. Wallin et al, 179 F 2d 137 (C.C.A.
3, 1949)

CONCLUSION.
In conclusion appellants submit that the District Court 

committed many prejudicial errors of a technical nature in 
overruling the well taken and well reasoned motion to dis­
miss. The District Court further attempted to apply rules 
stated in Broivn v. Topeka and Orleans Parish School Board 
v. Bush in this case, when the factual situations herein were 
totally distinct and different. That was the fundamental 
error of the District Court which produced the multiplicity 
of erroneous rulings on technical questions. Had this situation 
not existed, there can be no doubt that in the light of the 
evidence and law presented in this case, an entirely different 
conclusion ultimately would have been reached by the Court.

It is accordingly submitted that this Court should set 
aside the judgment of the District Court.

JACK P. F. GREMILLION,
Attorney General,

State of Louisiana,
Baton Rouge, Louisiana;

GEORGE M. PONDER,
First Assistant Attorney General.

WILLIAM P. SCHULER,
Assistant Attorney General.

WILLIAM C. BRADLEY,
Special Counsel for 

Attorney General.
Attorneys for Appellants.



30

CERTIFICATE OF SERVICE

I hereby certify that on this day I have served copies 
of the foregoing brief on behalf of appellants on counsel to 
appellees by placing the same in the United States Mail with 
sufficient postage affixed thereto.

Dated this-------day of October, 1957.

WILLIAM P. SCHULER 
Attroney for Appellant 
403 Civil Courts Bldg. 
New Orleans, Louisiana 

APPENDIX
CONSTITUTION, STATE OF LOUISIANA, 1921 

ARTICLE XIX, SECTION 26
Section 26. The following named commissions, boards, 

bodies or municipal corporations are and shall be considered 
special agencies of the State of Louisiana:

(1) The State Parks Commission of Louisiana,
(2) The Recreation and Park Commission for the 

whole Parish of East Baton Rouge,
(3) All recreation districts created under terms of 

Article XIV, Section 14 (d-4) of this Constitution;

(4) Any municipal corporation, parish or subdivision 
of the State in matters respecting the operation or mainte­
nance of parks and other recreational facilities or in con­
nection with any rule or regulation applicable thereto,

(5) The State Board of Education,
(6) The Board of Supervisors of Louisiana State 

University and Agricultural and Mechanical College,

(7) The parish school boards of each of the parishes 
of the State of Louisiana,



31

(8) The school boards of the municipalities of Monroe 
in Ouachita Parish and Lake Charles in Calcasieu Parish, 
and Bogalusa in Washington Parish,

(9) The State Superintendent of Public Education in 
his capacity as such as well as in the capacity of ex-officio 
secretary of the State Board of Education, and

(10) The State Department of Education.

The consent of the State of Louisiana to suits or legal 
proceedings against any of the above listed special agencies, 
(however heretofore given) is hereby expressly withdrawn 
and no such suit or proceeding shall be permitted except as 
provided in this section. This withdrawal of consent to suits 
and legal proceeding shall apply not only to suits and legal 
proceedings filed in the future but also to any pending suits 
or legal procedure. There is expressly excepted from the 
foregoing, suits for the enforcement of contracts entered into 
by any of the special agencies or for the recovery of damages 
for the breach thereof. Additionally, the Legislature of Loui­
siana may, in individual cases, by appropriate act grant to 
any party showing just and reasonable cause the right to 
use any of these special agencies, in compliance with Section 
35 of Article III of this Constitution.

This Section shall be self-operative and shall supersede 
any other portion of this Constitution or any statutes or 
regulations in conflict herewith. (Act 613 of 1956, adopted 
November 6, 1956)

CONSTITUTION, STATE OF LOUISIANA, 1921 
ARTICLE XII, SECTION 4

Section 4. (As amended Acts 1950, No. 566) There 
is hereby created a State Board of Education to be composed 
of eleven members as follows: Three members to be elected



32

from districts corresponding to the present Public Service 
Commission districts, for terms of six years, except as herein 
provided, and eight members to be elected from districts 
corresponding to the present Congressional districts, for terms 
of eight years. The present members of the Board shall serve 
the remainder of their terms, and their successors shall be 
elected for terms as herein provided. The terms of the three 
members elected from districts corresponding to the present 
Public Service Commission districts at the Congressional 
election of 1948 shall expire upon the qualification of their 
successors, as follows: the term of the Member from the 
First Public Service Commission District in December, 1952; 
the term of the Member from the Second Public Service 
Commission District in December, 1950; the term of the 
Member from the Third Public Service Commission District 
in December, 1954, and their successors shall be elected for 
terms of six years at the time fixed for the Congressional 
elections. Any vacancies occurring in the membership of the 
Board shall be filled by appointment of the Governor. All 
members shall serve without pay, except such per diem and 
expenses as shall be fixed by the legislature.

The Legislature shall prescribe the duties of said Board 
and define its powers; provided, that said Board shall not 
control the business affairs of Parish School Boards, nor the 
selection or removal of their officers and directors.

CONSTITUTION, STATE OF LOUISIANA, 1921 
ARTICLE XII, SECTION 5

Section 5. (As amended Acts 1922, No. 105) There 
shall be elected by the people at each succeeding general 
election a State Superintendent of Public Education, who 
shall be ex-officio Secretary of the Board, and whose salary 
shall be fixed by the State Board of Education at not less 
than Five Thousand ($5,000.00) Dollars nor more than Seven



33

Thousand Five Hundred ($7,500.00) Dollars, payable monthly 
on his own warrant.

CONSTITUTION, STATE OF LOUISIANA, 1921 
ARTICLE XII, SECTION 7

Section 7. Board of Supervisors of Louisiana State 
University. (As amended Acts 1940, No. 397) The Louisiana 
State University and Agricultural and Mechanical College 
shall be under the direction, control, supervision and manage­
ment of a body corporate to be known as the “Board of 
Supervisors of Louisiana State University and Agricultural 
and Mechanical College,” which shall consist of the Governor, 
as ex-officio member, and fourteen members appointed by 
the Governor by and with the consent of the Senate. The 
appointive members of the Board on the effective date of 
this provision shall continue in office until the expiration 
of their respective terms. Thereafter, except as set forth 
hereinafter, the term of appointive members shall be fourteen 
years or until their successors have been appointed, the term 
of two appointive members to expire on June first of every 
even-numbered calendar year; provided, however, that in 
order to place this provision in operation, the following terms 
shall apply: the successors to those members whose terms 
expire on January 1, 1941, shall be appointed to serve until 
June 1, 1942; the members whose terms expire on January 
1, 1942, shall serve until June 1, 1944; the members whose 
terms expire on January 1, 1943, shall serve until June 1, 
1946; the successors to those members whose terms expire 
on January 1, 1944, shall be appointed to serve until June 
1, 1948; the members whose terms expire on January 1, 1945, 
shall serve until June 1, 1950; the members whose terms 
expire on January 1, 1946, shall serve until June 1, 1952; the 
members whose terms expire on January 1, 1947, shall serve 
until June 1, 1954. The successors of all such members of



34

the board shall be appointed for terms of fourteen years each. 
In case of any vacancy, the Governor shall fill such vacancy 
for the unexpired term, by and with the advice and consent 
of the Senate. More than one member of the board may be 
appointed from the same parish, and at least seven appointive 
members thereof shall have been students at and graduates 
of Louisiana State University and Agricultural and Mechani­
cal College. The Board shall elect from its appointive mem­
bers, a Chairman, and a Vice-Chairman; and shall also elect a 
Secretary, who need not be a member of the board.

State Board of Education. The State Board of Educa­
tion shall have supervision of all other higher educational 
institutions, subject to such laws as the Legislature may 
enact. It shall appoint such governing bodies as may be 
provided. It shall submit to the Legislature, or other agency 
designated by the Legislature, a budget for said Board and 
for these institutions.

Teachers’ certificates; approval of private schools and 
colleges. It shall prescribe the qualifications, and provide for 
the certification of the teachers of elementary, secondary, 
trade, normal and collegiate schools; it shall have authority 
to approve private schools and colleges, whose sustained 
curriculum is of a grade equal to that prescribed for similar 
public schools and educational institutions of the State; and 
the certificates or degrees issued by such private schools or 
institutions so approved shall carry the same privileges as 
those issued by the State schools and institutions. (As 
amended Acts 1940, No. 397, adopted Nov. 5, 1940).



35

LOUISIANA REVISED STATUTES OF 1950
17:443

REMOVAL OF TEACHERS; PROCEDURE;
RIGHT TO APPEAL

A permanent teacher shall not be removed from office 
except upon written and signed charges of wilful neglect of 
duty, or incompetency or dishonesty, or of being a member 
of or of contributing to any group, organization, movement 
or corporation that is by law or injunction prohibited from 
operating in the state of Louisiana, or of advocating or in 
any manner performing any act toward bringing about inte­
gration of the races within the public school system or any 
public institution of higher learning of the state of Louisiana, 
and then only if found guilty after a hearing by the school 
board of the parish or city, as the case may be, which hearng 
may be private or public, at the option of the teacher. At 
least fifteen days in advance of the date of the hearing, the 
school board shall furnish the teacher with a copy of the 
written charges. The teacher shall have the right to appear 
before the board with witnesses in his behalf and with counsel 
of his selection, all of whom shall be heard by the board at 
the said hearing. Nothing herein contained shall impair the 
right of appeal to a court of competent jurisdiction.

If a permanent teacher is found guilty by a school 
board, after due and legal hearing as provided herein, on 
charges of wilful neglect of duty, or of incompetency, or 
dishonesty, or of being a member of or of contributing to 
any group, organization, movement or corporation that is by 
law or injunction prohibited from operating in the state of 
Louisiana, or of advocating or in any manner performing 
any act toward bringing about integration of the races within 
the public school system of the state of Louisiana, and ordered



36

removed from office, or disciplined by the board, the teacher 
may, not more than one year from the date of the said find­
ing, petition a court of competent jurisdiction for a full hear­
ing to review the action of the school board, and the court 
shall have jurisdiction to affirm or reverse the action of the 
school board in the matter. If the finding of the school board 
is reversed by the court and the teacher is ordered reinstated 
and restored to duty, the teacher shall be entitled to full pay 
for any loss of time or salary he or she may have sustained by 
reason of the action of the said school board. As amended 
Acts 1956, No. 249, § 1.

LOUISIANA REVISED STATUTES OF 1950
17:13

SUPERVISORY DUTIES OF STATE 
SUPERINTENDENT; TRAVELING EXPENSES

The state superintendent of education shall keep in 
close touch with all of the state educational institutions under 
the control of the state board of education, and of all the 
public schools of the various parishes with the view of seeing 
that the physical plants of the schools are adequate and kept 
in the proper state of repair and sanitation; that the courses 
of study prescribed by the state board of education are faith­
fully followed; that teachers meet the standards prescribed 
by the board; that classes are not overcrowded; that children 
are properly classified as to grades; that wise methods are 
used in the presentation of the subject matter; and in all 
other ways possible, assist the local authorities superintend­
ents, and teachers to secure the best possible results from 
their efforts. In the prosecution of this work of inspection 
and supervision, the various employees in the state depart­
ment of education shall be under the immediate direction 
and control of the state superintendent of education, and



37

they shall make such verbal and written reports to him as 
he may require. In the professional administration of the 
schools, as indicated in this section, it shall be the duty of 
the heads of the various state educational institutions and 
of the public school officials in the various parishes to be 
guided, as far as practicable, by the suggestions and direc­
tions of the state superintendent.

The traveling and other necessary expenses of the state 
superintendent of education and other employees of the state 
department of education while engaged upon their official 
duties shall be paid out of the state public school fund not 
to exceed amounts appropriated by the legislature for this 
purpose.