Orleans Parish School Board v. Bush Supplemental Appendix
Public Court Documents
April 1, 1956

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Brief Collection, LDF Court Filings. Orleans Parish School Board v. Bush Supplemental Appendix, 1956. dc09f163-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/dcf4b15b-5d78-402e-af59-c9e371ac7f7d/orleans-parish-school-board-v-bush-supplemental-appendix. Accessed April 29, 2025.
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IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1955 No*_______ Misc. ORLEANS PARISH SCHOOL BOARD AND JAMES F. REDMOND, SUPERINTENDENT, Petitioners, versus EARL BENJAMIN BUSH, ET AL., Respondents. SUPPLEMENTAL APPENDIX CONTAINING MATERIAL INADVERTENTLY OMIT- TED FROM ORIGINAL APPENDIX TO MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MAN DAMUS AND PROHIBITION AND PETITION FOR WRITS OF MANDAMUS AND PROHIBITION. GERARD A. RAULT, 803 American Bank Building, New Orleans, Louisiana; W. SCOTT WILKINSON, Beck Building, Shreveport, Louisiana. M ontgom ery & Co., “ The B rief Specialists” , 430 Chartres St., N. 0.» La. INDEX TO SUPPLEMENTAL APPENDIX Page MOTION TO DISMISS AND PLEA TO JURIS DICTION ON BEHALF OF THE STATE OF LOUISIANA ......................................................... 2 MOTION BY DEFENDANTS FOR A NEW TRIAL AND FOR A REHEARING ........... 5 MOTION FOR A REHEARING ON BEHALF OF THE STATE OF LOUISIANA ....................... 12 PER CURIAM DECISION OF THREE JUDGE DISTRICT COURT D E N Y I N G MOTION FOR NEW TRIAL AND REHEARING . . . 13,14 MINUTE ENTRY OF ONE JUDGE DISTRICT COURT DENYING MOTION FOR NEW TRIAL AND REHEARING ........................... 14 PROOF OF SERVICE .............................................. 15 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1955 N o .________ Misc. ORLEANS PARISH SCHOOL BOARD AND JAMES F. REDMOND, SUPERINTENDENT, Petitioners, versus EARL BENJAMIN BUSH, ET AL., Respondents. SUPPLEMENTAL APPENDIX CONTAINING MATERIAL INADVERTENTLY OMIT TED FROM ORIGINAL APPENDIX TO MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MAN DAMUS AND PROHIBITION AND PETITION FOR WRITS OF MANDAMUS AND PROHIBITION. 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA NEW ORLEANS DIVISION EARL BENJAMIN BUSH, ET AL., \ versus l ORLEANS PARISH SCHOOL I BOARD, ET AL. 1’ i MOTION TO DISMISS AND PLEA TO JURISDICTION ON BEHALF OF THE STATE OF LOUISIANA. Now, comes Fred S. LeBlanc, Attorney General of the State of Louisiana, appearing herein specially on its behalf, and for the sole and only purpose of filing this motion and plea, moves the Court to dismiss this action on the following grounds: Civil Action No. 3630 1. This suit is in effect a suit against the State of Louisiana, and any judgment which might be rendered in accordance with the prayer of the plaintiffs would have the effect of controlling the State’s political power and internal policy concerning the regulation and support of public education under its Constitution and Laws, and a judgment or decree granting plaintiffs’ demands would direct and regulate the executive authority of the State in the enforcement of its police power to regulate and provide for public education and the public health, peace and good order of the State, and would further require the Court to supervise the conduct of State officials with re gard thereto. 3 II. The State of Louisiana has not given its consent to be sued in matters involving the regulation, supervision and control of public education and the police power of the State with reference to the matters and things set forth in the preceeding paragraph. III. The provisions of the Constitution of the United States vesting jurisdiction in the Courts of the United States does not give to said courts jurisdiction in con troversies between a State and its citizens, under Section 2 of Article III of the United States Constitution, or the Acts of Congress enacted pursuant thereto. IV. The Eleventh Amendment to the United States Con stitution contains an express limitation prohibiting the Federal Courts from exercising jurisdiction in suits brought by individuals against any of the sovereign States of the Union, and since the State of Louisiana has not given its consent to be sued herein, this Court is without jurisdiction to hear and determine this cause. V. Under the provisions of Section 35 of Article III of the Constitution of the State of Louisiana, the consent of the State to be sued can only be given through an Act of the Legislature of Louisiana, and no such suit may be instituted in any Court other than a Court of 4 Louisiana. No Act of the Legislature of Louisiana has given consent to the filing of this suit. / s / FRED S. LE BLANC FRED S. LE BLANC, Attorney General of the State of Louisiana. / s / W. C. PERRAULT W. C. PERRAULT, 1st Assistant Attorney General of kthe State of Louisiana. / s / CARROLL BUCK CARROLL BUCK, 2nd Assistant Attorney General of the State of Louisiana. By: --------------------------------------------- CERTIFICATE I do hereby certify that a copy of the above and fore going Motion has this day been served upon A. P. Tu- reaud, Sr., counsel for Plaintiffs, by mailing a copy there of addressed to him at 1821 Orleans Avenue, New Orleans, Louisiana, postage prepaid, this 31st day of October, 1955. / s / FRED S. LE BLANC Attorney General of the State of Louisiana. 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA NEW ORLEANS DIVISION EARL BENJAMIN BUSH, ET AL I vs. | Civil Action ORLEANS PARISH SCHOOL ' Number 3630 BOARD, ET AL MOTION BY DEFENDANTS FOR A NEW TRIAL AND FOR A REHEARING Now come the defendants in above numbered and titled cause and show that the opinions, rulings and de crees herein rendered by the Three Judge Court convened pursuant to 28 USC 2281, and of the District Judge sitting alone, are contrary to the law and the evidence and the defendants are aggrieved thereby and are entitled to a new trial and a rehearing for the reasons more particularly set forth hereinbelow, as follows: I. The ruling of the Three Judge Court that this case does not require a hearing and determination under 28 USC 2281 for the alleged reason that “no serious con stitutional question, not heretofore decided by the Supreme Court of the United States, is presented” , is in direct con flict with the provisions of 28 USC 2281-2284, inclusive, and is in conflict with the decisions of the United States Supreme Court interpreting the above referred to sections of the United States Code. The Three Judge Court there fore erred in refusing to determine the issues of fact and law relating to the constitutionality and the legality of the provisions of the Louisiana Constitution and Lou 6 isiana Statutes, and in refusing to pass upon and deter mine plaintiffs alleged right to a preliminary injunction to restrain the defendants from complying with the con stitution and statutes of the State of Louisiana. 2. The Three Judge Court erred in holding that inso far as the provisions of the Louisiana Constitution and Louisiana Statutes in this suit require or permit segre gation of the races in public schools they are invalid under the ruling of the Supreme Court in Brown v. Board of Education, 347 US 483, and that therefore no serious con stitutional question is presented. 3. The District Judge, sitting alone, was without any right or jurisdiction to hear and determine questions urged by the plaintiffs against the constitutionality and legality of the provisions of the Louisiana Constitution and Stat utes and had no right or jurisdiction to enjoin the enforce ment of the provisions of the Louisiana Constitution and Louisiana Statutes. 4. The District Judge, sitting alone, erred in overrul ing the motion to dismiss and plea of the jurisdiction filed by the State of Louisiana and a similar plea filed on be half of all defendants, said motions being based upon the proposition that this proceeding is in effect a suit against the State of Louisiana and the state has not given its con sent to be sued. In this connection, the said District Judge erroneously held that the State statute creating the Orleans Parish School Board gives it the right to sue and be sued 7 in cases of this kind, citing La. R. S. 17:51. Defendants show that the said statute confers on the defendant Board a right to be sued only in matters which come under the exclusive jurisdiction of the said Board, and if the said statute could be properly construed to give plaintiffs the right to sue the said Board in this proceeding then the said statute is unconstitutional to that extent under the laws of the State of Louisiana and particularly Article III, Section 35, of the Louisiana Constitution, which provides that suits against the state can only be authorized by a special act of Legislature, which act must provide for the method of procedure, and that no such suits shall be in stituted in any court other than a state court of the State of Louisiana. 5. The District Judge, sitting alone, erred in failing and refusing to sustain defendants Motion To Dismiss for Failure to State a Claim upon which relief can be granted by this Court, said motion being based upon the proposi tion that there are no allegations in the complaint which would show that the plaintiffs have exhausted the adminis trative remedy provided by the laws of the State of Lou isiana and particularly R. S. 17:81.1; that no facts have been alleged to show that an actual controversy exists so as to give the Court jurisdiction to enter a judgment or de cree relating thereto; that there is no showing of any actual or immediate entry of irreparable injury to the plaintiffs or that they are without adequate remedy at law. In this connection, the District Judge erred in holding that Act 556 of 1954, which is embodied in La. R. S. 17:81.1, is part of a legislative plan to avoid the effect of the de cision of the Supreme Court in Brown v. Board of Edu- 8 cation of Topeka, 347 US 483, and that “Act 556 of 1954 details the means by which segregation is to be achieved” . The opinion of the Court in this respect is not sustained by any provision of the law itself or by any statement or ad mission of defendants or their counsel, on the contrary de fendants urged the necessity for a school assignment law such as that provided for in the said act of the Louisiana Legislature whether segregation or integration should be the rule in this State. Furthermore, the District Judge erred in holding that the said statute is invalid on its face and may be dis regarded because it makes “ an unlawful delegation of legislative authority.” A proper assignment of pupils in the public schools is a matter of detailed internal proce dure and not an act of legislative authority. 6. / ; The opinion of the District Judge that Louisiana ^School Assignment Law, R. S. 17.81.1, is invalid, conflicts ' with and is contrary to the decision of the United States Court of Appeals for the Fourth Circuit and the case of | Carson v. Board of Education of McDowell County, Docket \ No. 7096, decided December 1, 1955 (unreported). 7. The District Judge, sitting alone, erred in failing and refusing to sustain defendants Motion to Dismiss for Want of Capacity of the Plaintiffs to Sue Through their “ Next Friends” , said motion should have been sustained in view of the fact that neither in the caption of the case nor in the allegations of the complaint nor in their evidence in the suit is there anything to show that any of the “next 9 friends” are the duly qualified tutors of the minors, or that the said minors do not have tutors duly qualified to act for them pursuant to the laws of Louisiana or that the said “ next friends” have been authorized by this or any other Court to appear for them and represent them in this proceeding. 8. The District Judge, sitting alone, erred in failing to sustain the defendants Motion to Dismiss for Failure to State a Claim for a Class Action, in view of the fact that there are no allegations in the complaint and there is no proof in the record to show that there are any negroes other than the plaintiffs who desire to attend schools now attended only by whites. 9. The District Judge, sitting alone, erred in failing and refusing to sustain defendant’s Motion To Dismiss the Action by Reason of the Fact That The Supplemental and Amended Complaint Changed the Issues as well as the Parties to the Action, and was filed more than six months after the original complaint without leave of Court as re quired by Rule 15 (d) of the Federal Rules of Civil Pro- ceedure. 10. The District Judge, sitting alone, erred in issuing a temporary injunction restraining and enjoining the de fendants from permitting segregation of the races in any school under their supervision and ordering the defendants to make arrangements for the admission of children to all schools under their supervision on a racial non-discrimina 10 tory basis. In this connection, defendants show that the said decree completely disregards the uncontradicted evi dence of the defendants showing that the integration of whites and negroes in the New Orleans public schools will be psychiatrically detrimental to the children both of the white and of the colored race and will force on the people of the City of New Orleans a great deal of psychic and physical suffering between the members of both races. Defendants further show that the Court without cause failed and refused to consider the uncontradicted evidence of defendants that the integration of white and negro students in the public schools of Orleans Parish would be psychiatrically traumatic to the negro students and would, in all probability, result in the psychiatric disability of many such students because of the physical, mental and emotional differences between the two races. The Court further erred in failing and refusing to consider defend ants uncontradicted evidence that the integration of whites and negroes in the public schools would be detrimental to the health, scholastic advancement, morals and general welfare of the white race and in failing to hold that the segregation of the races in the New Orleans public schools is necessary and essential and is a valid exercise of the police power of the state. WHEREFORE, defendants pray that the opinions and decrees rendered herein by the Three Judge Court and by the District Judge, sitting alone, on February 15, 1956 be reconsidered and set aside and that a new trial and a rehearing be granted herein to consider the errors urged above, and on final hearing that an order issue dismissing the suit of the plaintiffs at their cost; for all or 11 ders and decrees necessary and for general and equitable relief. Respectfully submitted, GERARD A. RAULT 803 American Bank Building New Orleans, Louisiana W. SCOTT WILKINSON P. 0. Box 1707 Shreveport, Louisiana ATTORNEYS FOR DEFENDANTS L. H. Perez 2307 American Bank Bldg. New Orleans, Louisiana Robert G. Chandler, Frank J. Looney Shreveport, Louisiana Browne & Rault New Orleans, Louisiana Wilkinson, Lewis & Wilkinson Shreveport, Louisiana OF COUNSEL I hereby certify that the above and foregoing Motion for a New Trial and for a Rehearing is filed in good faith and not for the purpose of delay. February 24, 1956. Attorney for Defendants 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA NEW ORLEANS DIVISION EARL BENJAMIN BUSH, ET AL vs. ORLEANS PARISH SCHOOL BOARD, ET AL Civil Action Number 3630 MOTION FOR A REHEARING ON BEHALF OF THE STATE OF LOUISIANA Now comes Fred S. LeBlanc, Attorney General of the State of Louisiana, appearing herein specially on its behalf and for the sole and only purpose of filing this motion, moves the Court for a rehearing on its Motion to Dismiss for Lack of Jurisdiction for the following reasons: The Court held that this is not a suit against the State of Louisiana because “ a suit against officers or agents of a state acting illegally is not a suit against the state” , citing Georgia R. Co. v. Redwine, 342 US 299. This holding of the Court is erroneous because in Footnote 15 of the case cited by the Court it is shown that a com plaint asking relief which if granted would require affirm ative action by the state is in fact a suit against the state. In the present instance the decree issued by this Court would certainly require affirmative action by the state through defendant school board. WHEREFORE, mover prays the ruling of the Court dismissing the plea to the jurisdiction be reconsid ered and reheard. Respectfully submitted, FRED S. LeBLANC, Attorney General of the State of Louisiana. 13 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA NEW ORLEANS DIVISION EARL BENJAMIN BUSH, ET AL, Plaintiffs versus ORLEANS PARISH SCHOOL BOARD, ET AL, Defendants A. P. Tureaud Robert L. Carter A. M. Trudeau, Jr. Thurgood Marshall Attorneys for Plaintiffs Browne & Rault Gerard A. Rault W. Scott Wilkinson Fred S. LeBlane L. H. Perez Attorneys for Defendants No. 3630 Civil Action March 8, 1956 ON MOTION FOR A NEW TRIAL AND FOR A REHEARING Before BORAH, Circuit Judge, and CHRISTENBERRY and WRIGHT, District Judges: 14 PER CURIAM: IT IS ORDERED that the motion by defendants for a new trial and for a rehearing in the within numbered cause be and the same is hereby denied. Minute Entry Wright, J. March 8, 1956 EARL BENJAMIN BUSH, ET AL , versus i No. 3630 ORLEANS PARISH SCHOOL 1 Civil Action BOARD, ET AL 1 IT IS ORDERED that the motion by defendants for a new trial and for a rehearing in the within numbered cause be and the same is hereby denied. 15 PROOF OF SERVICE. I, GERARD A. RAULT, one of the attorneys for Orleans Parish School Board and James F. Redmond, Superintendent, petitioners, and a member of the Bar of the Supreme Court of the United States, hereby certify that on this day I served copies of the foregoing Supple mental Appendix on the several parties hereto, as follows: 1. On the Honorable Wayne G. Borah, Judge of the United States Court of Appeals for the Fifth Circuit, by mailing a copy thereof, post age prepaid, addressed to his office at Room 354/2 Post Office Building, New Orleans, Lou isiana ; 2. On the Honorable Herbert W. Christenberry, Judge of the United States District Court for the Eastern District of Louisiana, New Orleans Division, by mailing a copy thereof, postage pre paid, addressed to his office at Room 205 Post Office Building, New Orleans, Louisiana; 3. On the Honorable J. Skelly Wright, Judge of the United States District Court for the East ern District of Louisiana, New Orleans Divi sion, by mailing a copy thereof, postage pre paid, addressed to his office at Room 300 Post Office Building, New Orleans, Louisiana; 4. On A. P. Tureaud, Esquire, and A. M. Tru deau, Jr., Esquire, Counsel for respondents, by mailing a copy thereof, postage prepaid, ad dressed to their offices at 1821 Orleans Ave nue, New Orleans, Louisiana; 16 5. On U. Simpson Tate, Esquire, Counsel for re spondents, by mailing a copy thereof, air mail postage prepaid, addressed to his office at 2600 Flora Street, Dallas, Texas; 6. On Robert L. Carter, Esquire, and Thurgood Marshall, Esquire, Counsel for respondents, by mailing a copy thereof, air mail postage pre paid, addressed to their offices at 107 W. 43rd Street, New York 36, New York. Dated th is______ day of April, 1956. GERARD A. RAULT, Attorney for Petitioners, American Bank Building, New Orleans, Louisiana