Orleans Parish School Board v. Bush Supplemental Appendix

    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