State of Louisiana v. United States of America Motion for Leave to File Brief Amicus Curiae Urging Dismissal of the Appeal

    N os. 89-556, 89-557 and 89-771

In The

Supreme Court of ttje Mmtetr states
October Term, 1989

State of Louisiana, ex rel. William J. Guste, J r., 
Attorney General of the State of Louisiana,

Appellant,
State of Louisiana, ex rel. Charles E. “Buddy” 

Roemer, Governor of the State of Louisiana, et a l,
Appellants,

Board of Supervisors of Southern University and 
Agricultural and Mechanical College,

Appellant,
v.

United States of America,
Appellee.

On Appeal from the United States District Court 
for the Eastern District of Louisiana

MOTION FOR LEAVE TO FILE AND 
BRIEF OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. AS AMICUS 
CURIAE URGING DISMISSAL OF THE APPEAL

* Julius LeVonne Chambers 
Charles Stephen Ralston 
Norman J. Chachkin 
J anell M. Byrd 
NAACP Legal Defense and

Educational Fund, Inc,
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900
Counsel fo r Amicus Curiae

* Counsel o f Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



In the
Supreme Court of the United States 

October Term, 1989

Nos. 89-556, 89-557 and 89-771

State of Louisiana, ex rel. William J. Guste, Jr., Attorney 
General of the State of Louisiana;

State of Louisiana, ex rel. Charles E. "Buddy" Roemer, 
Governor of the State of Louisiana, et al.;

Board of Supervisors of Southern University and 
Agricultural and Mechanical College,

Appellants.

v.

United States of America,

Appellee.

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana

MOTION OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. FOR LEAVE TO 
FILE BRIEF AS AMICUS CURIAE URGING

DISMISSAL OF THE APPEAL



The NAACP Legal Defense & Educational Fund, 

Inc., (LDF) respectfully moves the Court for leave to file 

the attached brief as amicus curiae supporting the 

position of the United States on the jurisdictional issue 

addressed herein.

The following parties have consented to the filing of 

this brief: the United States, the State of Louisiana (by 

the Governor), the Supervisors of Southern University 

A&M College, Board of Regents of the State of 

Louisiana, the Louisiana Board of Trustees for State 

Colleges and Universities, the Board of Supervisors of 

Louisiana State University and A&M College, and the 

Bossier Parish School Board. As of the time of filing this 

brief the Attorney General for the State of Louisiana has 

not granted consent.

LDF is a non-profit corporation organized under the 

laws of the State of New York. It was formed to assist

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black citizens in securing their rights under the 

Constitution.1

This lawsuit raises important issues regarding the 

dismantling of formerly dual systems of higher education. 

LDF historically was involved in the major cases on this 

question that have been decided by this Court, and based 

on its experience believes that the law in this area should 

be developed upon full consideration by the Court with 

the benefit of intermediate appellate review in the Courts 

of Appeals.

1 Further description of the interest of amicus LDF appears at 
pages 2-5 of the attached brief, including a description of LDFs 
history of involvement in school desegregation litigation.

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We respectfully submit that LDF’s participation will

be of assistance to the Court.

Respectfully submitted,

/s/ Norman J. Chachkin_______
* Julius LeVonne Chambers 
Charles Stephen Ralston 
Norman J. Chachkin 
Janell M. Byrd

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Amicus Curiae

* Counsel of Record

- 4 -



Question Presented

Whether the Court lacks jurisdiction to entertain 

this direct appeal under 28 U.S.C. § 1253 where the case 

was not required to be heard by a panel of three judges 

because no state statute, law, or regulation was 

challenged, sought to be enjoined, or actually was 

enjoined on grounds of its repugnance to the 

Constitution.

- 1 -



TABLE OF CONTENTS

Question Presented...............................    i

Table of Authorities..................................................... iv

Interest Of The NAACP Legal Defense Fund As
Amicus Curiae ................................................. 2

Statement of Relevant F ac ts ....................     6

1. Consideration Below Of The Jurisdictional
Issue ...........         6

2. Allegations Of The Complaints Affecting
Jurisdiction...................................................... 8

3. Basis For The Relief Ordered Below....... 10

SUMMARY OF THE ARGUM ENT.................   12

ARGUMENT ...........................................    14

A. The Court Lacks Jurisdiction To Entertain 
This Direct Appeal Because The Case Was 
Not Required To Be Heard By A Three- 
Judge Court As No State Law Was 
Challenged Or Enjoined On Constitutional 
G rounds...................................................... 14

Page

- ii -



TABLE OF CONTENTS (continued)

Page

ARGUMENT (continued)

B. The Case Was Not Required To Be Heard 
By A Three-Judge Court Because A Single 
Judge Should Have Initially Resolved The 
Statutory Claim And Obviated Any Need
For A Three-Judge C ourt........................  25

CONCLUSION.............................................................  28

- in -



TABLE OF AUTHORITIES

Page

Cases:

Adams v. Lucy, 228 F.2d 619 (5th Cir.), cert.
denied. 351 U.S. 931 (1956)............................ 2

Adams v. Richardson. 356 F. Supp. 92 (D.D.C.
1973), modified and affd unanimously en 
banc. 480 F.2d 1159 (D.C. Cir. 1973) ............ 2

Alabama State Teachers Association v. Alabama 
Public School and College Authority.
289 F. Supp. 784 (M.D. Ala. 1968), affd
per curiam. 393 U.S. 400 (1969) ..................... 2

Alexander v. Fioto. 430 U.S. 634 (1977) ................... 26

Allen v. State Board of Elections. 393 U.S. 544
(1969) .................................................................. 15

Bailey v. Patterson. 396 U.S. 31 (1962) .....................  18

Baxter v. Palmigiano, 425 U.S. 308 (1976) .... 12, 17, 18

Bradley v. School Board of City of Richmond.
324 F. Supp. 396 (E.D. Va. 1971) ................  27

Brotherhood of Locomotive Engineers v. Chicago.
R.I. & P.R.. 382 U.S. 423 (1966) ...................  25

- iv -



TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Brown v. Board of Education, 347 U.S. 483 (1954) 2

Butler v. Dexter. 425 U.S. 262 (1976) ...................  13, 18

Costello v. Wainwright, 430 U.S. 325
(1977) ...................................... ............... 12, 16, 17

Costello v. Wainwright. 539 F.2d 547 (5th Cir.
1976) ...................................................................  20

Florida Lime & Avocado Growers v. Jacobsen.
362 U.S. 73 (1960)........................................  4, 25

Geier v. Alexander. 593 F. Supp. 1263 (M.D.
Tenn. 1984), affd, 801 F.2d 799 (6th
Cir. 1986) ...........................................................  2

Gonzalez v. Automatic Employees Credit
Union. 419 U.S. 90 (1974) ........... 4, 14,15, 25, 27

Hagans v. Lavine. 415 U.S. 528 (1974)....... 13, 25, 26

MTM v. Baxley. 420 U.S. 799 (1975) ... 8, 14, 24, 25, 27

McLaurin v. Oklahoma State Regents. 339 U.S. 637 
(1950)................................................................. 2

v



Cases (continued):

Meredith v. Fair. 305 F.2d 343 (5th Cir.),
cert, denied. 371 U.S. 828 (1962)...................  2

Morales v. Turman. 430 U.S. 322 (1977) .............. 12, 17

Norris v. State Council of Higher Education 
for Virginia. 327 F. Supp. 1368 (E.D.
Va.), aff d mem.. 404 U.S. 907 (1971) ........... 2

Philbrook v. Glodgett. 421 U.S. 707 (1975)..............  26

Phillips v. United States. 312 U.S. 246
(1941) ..................... ........................................ 16, 24

Rosado v. Wyman. 397 U.S. 397 (1970) ...............  13, 25

Sweatt v. Painter. 339 U.S. 629 (1950) ...................... 2

Swift & Co. v. Wickham. 382 U.S. I l l  (1965) ..... 16, 24

United States v. Louisiana. 543 F.2d 1125
(5th Cir. 1976)............................................  6, 8, 28

United States v, Louisiana. 669 F.2d 314 (5th
Cir. 1982) ..........................................................  8

TABLE OF AUTHORITIES (continued)

Page

- vi -



TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

United States v. Texas, 523 F. Supp. 703 (E.D.
Tex. 1981) ..........................................................  27

Weiser v. White. 505 F.2d 912 (5th Cir. 1975) ......... 7

Constitution and Statutes:

28 U.S.C. § 1253 ....................... .....................  1, 8, 12, 14

28 U.S.C. § 2281 ............... .....................................6, 7, 15

28 U.S.C. § 2284 ..........................................................  6

Act of August 12, 1976, Pub. L. No. 94-381, 90
Stat. 1119, § 7 (1976) .......................... ..........  7, 15

All Writs Act, 28 U.S.C. § 1651.............................14, 29

Civil Rights Act of 1964, 42 U.S.C. § § 2000d
et s e g .................................................................. 11

1974 Constitution of Louisiana, Article VIII,
§§ 5(D)(4), 11, 1 2 .......................................... 21

- vu -



TABLE OF AUTHORITIES (continued)

Page

Legislative Materials:

S. Rep. No. 94-202, 94th Cong., 2d Sess., 3-8,
reprinted in 1976 U.S. Code Cong. & Admin. 
News 1988 .........................................................  24

- vm -



In the
Supreme Court of the United States

October Term, 1989

Nos. 89-556, 89-557 and 89-771

State of Louisiana, ex rel. William J. Guste, Jr., Attorney 
General of the State of Louisiana;

State of Louisiana, ex rel. Charles E. "Buddy" Roemer, 
Governor of the State of Louisiana, et ah;

Board of Supervisors of Southern University and 
Agricultural and Mechanical College,

Appellants.

v.

United States of America,

Appellee.

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS 

CURIAE URGING DISMISSAL OF THE APPEAL



Interest Of The NAACP Legal 
Defense Fund As Amicus Curiae1

The NAACP Legal Defense and Educational 

Fund, Inc. (LDF) is a non-profit corporation established 

to assist black citizens in securing their constitutional and 

civil rights. LDF historically has had and continues to 

have a major role in litigation efforts challenging 

discrimination and segregation in education.1 2

1The Legal Defense Fund supports the position of the United 
States on the jurisdictional issue addressed herein.

2See, e.g.. Brown v. Board of Education. 347 U.S. 483 (1954). 
LDF represents plaintiffs in the litigation that resulted in the 
initiation of desegregation efforts in public higher education systems 
in 18 states, including the State of Louisiana. Adams v. Richardson. 
356 F. Supp. 92 (D.D.C. 1973), modified and affd unanimously en 
banc. 480 F.2d 1159 (D.C. Cir. 1973). Other LDF higher education 
desegregation cases have included: Sweatt v. Painter. 339 U.S. 629 
(1950); McLaurin v. Oklahoma State Regents. 339 U.S. 637 (1950); 
Adams v. Lucy. 228 F.2d 619 (5th Cir.), cert, denied. 351 U.S. 931 
(1956); Meredith v. Fair. 305 F.2d 343 (5th Cir.), cert, denied, 371 
U.S. 828 (1962); Alabama State Teachers Association v. Alabama 
Public School and College Authority. 289 F. Supp. 784 (M.D. Ala. 
1968), affd per curiam. 393 U.S. 400 (1969); Norris v. State Council 
of Higher Education for Virginia. 327 F. Supp. 1368 (E.D. Va.), 
affd mem.. 404 U.S. 907 (1971); Geier v. Alexander. 593 F. Supp. 
1263 (M.D. Tenn. 1984), affd, 801 F.2d 799 (6th Cir. 1986).

- 2 -



Based upon this institutional commitment to the 

elimination of discrimination in education, LDF agrees 

with the district court below that a state has not fulfilled 

its affirmative obligation to dismantle its de jure racially 

dual higher education system where substantial vestiges of 

the de jure system persist, as the record demonstrates is 

the case in Louisiana with respect to, inter alia, student 

enrollment, employment of faculty and staff, distribution 

and development of academic programs, financing, and 

school facilities.3 In light of this showing of a continuing 

violation, LDF strongly supports the adoption of a 

remedial plan adequate to assure that those victimized by 

continuing racial discrimination and its effects are made 

whole. Such a plan must formulate remedies that 

promise to increase educational opportunities for the

3J.A. 291a-326a [United States’ List of Material Facts to the 
Motion for Summary Judgment, filed May 13, 1988],

- 3 -



members of the class subjected to discrimination -  not 

limit them — and courts supervising the remedial process 

must eschew ineffective or illusory remedies as well as 

devices that may harm and disadvantage black students in 

their attempts to surmount the dismal legacy of racially 

discriminatory education.

By virtue of its active participation in higher 

education desegregation suits, LDF has a significant 

interest in the instant appeal, and in particular LDF has 

a legitimate concern that the law in this area be 

developed upon a record that is subject to comprehensive 

review.4

4This Court has emphasized that intermediate appellate review 
facilitates its consideration of important questions by helping to 
narrow and refine issues and by allowing full development and 
exploration of the legal theories underpinning a decision. See, e.g.. 
Gonzalez v. Automatic Employees Credit Union. 419 U.S. 90, 99 
(1974) ("mediating wisdom of a court of appeals"); Florida Lime & 
Avocado Growers v. Jacobsen. 362 U.S. 73, 92-93 (1960) ("dominant 
principle of having this Court review decisions only after they have 
gone through two judicial sieves") (Frankfurter, J., dissenting).

- 4 -



Here, direct review from the district court’s 

approval of the Special Master’s report is not only 

contraiy to law,5 but also would be imprudent and likely 

to impair this Court’s ability fully to consider and resolve 

the weighty issues framed in the Jurisdictional Statements. 

This case should first proceed in the Court of Appeals for 

the Fifth Circuit6 and, in order to aid this Court’s 

eventual jurisdiction over this matter, the stay issued by 

the Court should remain in effect during the pendency of 

appellate proceedings.

5A s argued infra at 14-28, the three-judge court was not 
"required" to hear this case and therefore the Court lacks jurisdiction 
to entertain this appeal.

6The appellants in this Court have all filed protective notices 
of appeal to the United States Court of Appeals for the Fifth 
Circuit.

- 5 -



Statement of Relevant Facts

1. Consideration Below Of The Jurisdictional Issue 

To date no court has given full consideration to 

the propriety of empaneling a three-judge court in this 

case. When the case was filed in 1974, the United States 

requested that a three-judge court be convened pursuant 

to 28 U.S.C. §§ 2281 and 2284 (J.A. 184a). Without 

deciding the issue, the Chief Judge of the United States 

Court of Appeals for the Fifth Circuit designated the 

members of the special tribunal and directed that the 

three-judge court itself determine if the case was properly 

before it (J.A. 197a-98a). A three-judge district court was 

empaneled on April 16, 19747 but apparently failed to 

consider or resolve the question put to it by the Fifth 

Circuit.

7United States v. Louisiana. 543 F.2d 1125, 1126 (5th Cir. 
1976).

- 6 -



Despite the fact that the three-judge court was 

reconvened on three occasions after repeal of 28 U.S.C. 

§ 2281 in 1976,8 the propriety of the three-judge court 

was not disputed, or even seriously addressed, by the 

parties or the court prior to the instant appeal.9

However, in 1976 the Fifth Circuit exercised 

jurisdiction over an interlocutory appeal from a ruling of 

the three-judge district court in this case denying a 

petition for intervention. In so doing, the Fifth Circuit 

overruled its prior decision in Weiser v. White. 505 F.2d 

912 (5th Cir. 1975), requiring such appeals to proceed 

directly to this Court. The decision was based upon this 

Court’s narrowing of the scope of review of three-judge

8See Act of August 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119, 
§ 7 (1976).

9The issue was addressed in passing in 1988: one sentence 
appears in the district court opinion, without analysis or citation, 
stating simply that the request for a three-judge court had been 
properly made in this case (J.A 10a).

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court cases under 28 U.S.C. § 1253, and in particular 

upon MTM v. Baxley. 420 U.S. 799 (1975), where the 

Court ruled that a direct appeal would lie only where the 

order of the three-judge court rested on constitutional 

grounds. Thus, the Fifth Circuit previously exercised 

jurisdiction over an appeal from a non-constitutionally 

based decision in this case in 1976 — and it did so again 

in 1981.10

2. Allegations Of The Complaint Affecting 
Jurisdiction

Neither the original Complaint filed in this case in 

1974 nor the Amended Complaint filed in 1980 challenge 

any state law, statute, or regulation as unconstitutional 

(J.A. 153a-65a, 166a-81a). Instead, both allege that "acts 

and practices" of state officials maintain and perpetuate

10United States v, Louisiana. 543 F.2d 1125 (5th Cir. 1976); 
United States v. Louisiana. 669 F.2d 314 (5th Cir. 1982)(denial of a 
petition for intervention).

- 8 -



the dual system previously mandated by state law (J.A. 

162a, 176a). Similarly, no request was made to enjoin 

any state statute or law on grounds that it violated the 

Constitution (J.A. 162a-63a, 177a).

The gravamen of the Complaint is a challenge to 

state practices by multiple state officers acting under the 

authority of state laws themselves left unchallenged. 

Indeed, in its Memorandum in Support of The Request 

for A Three-Judge Court, the United States expressly 

acknowledged that its "Complaint . . . seeks relief . . . 

which will enjoin the practices of the State of Louisiana 

as applied and interpreted by the defendants and their 

agents" (J.A. 193a-94a)(emphasis added). The "Complaint 

alleges that the defendants and their agents have failed in 

their affirmative duty to provide specific measures and 

timetables to eliminate [the racial] dualism" (J.A. 195a).

- 9 -



3, Basis For The Relief Ordered Below

When, in 1981, the parties agreed on a settlement 

and the court below approved it, no state statute, law, or 

regulation was stricken or limited in enforcement (J.A. 

199a-255a, 256a-66a).

Although in 1989 the State itself advocated a 

remedial plan, which the court below approved, that 

substantially restructured Louisiana’s higher education 

system,11 neither the State nor any other party contended 

that the supersession of numerous existing provisions of 

Louisiana law necessary to accomplish that goal should be 

directed because any of such provisions were repugnant 

to the federal Constitution.11 12

11 See Appendix to Jurisdictional Statement of Governor 
Roemer, at 25a-31a.

12The Southern University Supervisors objected to the plan 
(J.A 721a-29a), and the United States "remained] skeptical that the 
record in this case [could] support the finding that a single board is 
warranted or that it will enhance desegregation" (J.A. 603a; accord

(continued...)

- 10 -



The remedial order entered below is grounded 

solely upon a federal statute -- Title VI of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. The 

district court expressly declined to reach the issue whether 

the United States had standing to sue under the 

Fourteenth Amendment, concluding that "whatever relief 

is available to a private plaintiff in a school desegregation 

suit under the Fourteenth Amendment is available to the 

United States under Title VI" (J.A. 17a, 84a).13

continued)
J.A. 1077a). The State never argued that existing Louisiana law 
violated the federal Constitution.

13While there is language in the district court’s opinions that 
invokes the Constitution as the basis for striking the multiple board 
system fe.g.. J.A. 45a), it is clear from the collective opinions of the 
court, and emphasized in its Reasons for Ruling (August 4, 1989) 
(J.A 84a), that the judgment below rested on statutory grounds. 
Because it concluded that the substantive standard under Title VI 
was the same as that under the Fourteenth Amendment (J.A 17a, 
22a, 24a), the court in its opinions referred to the Constitution and 
Title VI interchangeably.

- 11 -



SUMMARY OF THE ARGUMENT

The appeal from the district court’s decision must 

proceed initially in the Court of Appeals for the Fifth 

Circuit, not this Court. Because the case was not one 

"required by any Act of Congress to be heard and 

determined by a district court of three judges," the three- 

judge court was improperly empaneled and therefore the 

requirements for direct appeal under 28 U.S.C. § 1253 

are not satisfied.

A three-judge court may be convened properly 

under Section 2281 only if the complaint raises a federal 

constitutional challenge to an identified state law or 

regulation and requests that enforcement of the state law 

or regulation be enjoined on the ground of its repugnance 

to the federal Constitution. Morales v. Turman. 430 U.S. 

322 (1977) (per curiam); Costello v. Wainwright. 430 U.S. 

325 (1977) (per curiam); Baxter v. Palmigiano. 425 U.S.

- 12 -



308 (1976); Butler v. Dexter, 425 U.S. 262 (1976) (per 

curiam). No such challenge was raised here (J.A. 153a- 

83a.); thus, a three-judge court should never have been 

empaneled and most assuredly should not have been 

reconvened once it became clear that it had been 

improperly empaneled at the outset.

Moreover, the correct procedure in cases raising 

both constitutional and non-constitutional claims is to 

have a single judge make an initial determination of the 

statutory issues -- which may obviate the need to convene 

a three-judge court. Hagans v. Lavine. 415 U.S. 528, 543- 

44 (1974); Rosado v. Wyman. 397 U.S. 397, 403 (1970). 

Had this procedure been followed in the instant case, 

there would have been no need to convene a three-judge 

district court.

This conclusion is bolstered by the fact that the 

three-judge court here was convened and reconvened

- 13 -



ultimately to render a decision resting only on statutory 

grounds, Title VI (J.A. 17a). The Court has held that a 

three-judge court is not required in these circumstances. 

MTM, Inc, v. Baxley. 420 U.S. 799 (1975); Gonzalez v. 

Automatic Employees Credit Union. 419 U.S. 90 (1974).

This appeal should proceed in the Court of 

Appeals for the Fifth Circuit and the stay issued by this 

Court should, pursuant to the All Writs Act, 28 U.S.C. § 

1651, remain in effect during the pendency of appellate 

proceedings.

ARGUMENT

A. The Court Lacks Jurisdiction To Entertain This 
Direct Appeal Because The Case Was Not 
Required To Be Heard By A Three-Judge Court 
As No State Law Was Challenged Or Enjoined on 
Constitutional Grounds.

The Jurisdictional Statements rely on 28 U.S.C. § 

1253 as the basis for this Court’s jurisdiction of these

- 14 -



appeals. That section allows direct appeals to this Court 

from an order granting or denying an interlocutory or 

permanent injunction in any civil action "required by any 

Act of Congress to be heard and determined by a district 

court of three judges." (Emphasis added.) This Court’s 

appellate jurisdiction under Section 1253 turns on 

whether the three-judge court was correctly convened.14

1. Appellants apparently contend that 28 U.S.C. § 

2281 required this case to be heard by three judges.15

14Gonzalez v. Automatic Employees Credit Union. 419 U.S. at 
95 n.12.

15Section 2281 was repealed by Congress in 1976 but remains 
applicable to actions commenced before the date of repeal. Act of 
August 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119, § 7 (1976). It 
provided that

an interlocutory or permanent injunction restraining 
the enforcement . . .  of any State statute . . . shall 
not be granted by any district court or judge thereof 
upon the ground of unconstitutionality of such 
statute unless the application therefore is heard 
and determined by a district court of three judges.

The statute is to be strictly construed. Allen v. State Board of
(continued...)

- 15 -



However, this Court has unanimously held that Section

2281 required a three-judge court only where the initial

pleadings framed a challenge to a specific state law

provision on constitutional grounds16 and requested an

injunction against enforcement of an identified state law

or regulation on constitutional grounds.

In Costello v. Wainwright. 430 U.S. 325 (1977)

(per curiam), the Court held:

The applicability of § 2281 as written turns 
on whether a state statute is challenged to 
be unconstitutional, not on whether an 
equitable remedy for unconstitutional state 
administrative behavior ultimately impinges 
on duties imposed under concededly 
constitutional state statutes.

-^(...continued)
Elections. 393 U.S. 544, 561 (1969); Phillips v. United States. 312 
U.S. 246, 251 (1941).

16The challenge must be based upon a provision of the 
Constitution other than the Supremacy Clause. Swift & Co. v. 
Wickham. 382 U.S. I l l  (1965).

- 16 -



Id. at 326.17 Likewise in Morales v. Turman. 430 U.S. 

322 (1977) (per curiam), the Court emphasized that the 

threshold requirements for convening a three-judge court 

must be satisfied in the complaint, which must contain (1) 

a specific challenge to a state statute, rule or regulation, 

and (2) a request for an injunction against the 

enforcement of an identified law.18 In rendering this 

holding in Morales, the Court relied on a decision 

reached a year earlier in Baxter v. Palmigiano, 425 U.S. 

308 (1976).19 Morales. 430 U.S. at 323 (citing Baxter,

17In Costello this Court rejected the contention that a three- 
judge court was required because equitable relief for prison 
overcrowding might require suspending or superseding a state statute.

18The Court in Morales reversed a ruling that a three-judge 
court was required because a constitutional challenge to inhumane 
conditions maintained by state officials in Texas juvenile correctional 
facilities was effectively a challenge to a state-wide policy.

19Baxter involved a challenge to the denial of counsel and the 
use of a prisoner’s silence against him in a prison disciplinary 
proceeding. The Court found that despite the fact that the state had 
detailed regulations governing prison disciplinary proceedings, the 
regulations did not address the right to counsel or the use of an

(continued...)

- 17 -



425 U.S. at 313 n.2);20 accord Butler v. Dexter, 425 U.S.

262 (1976) (per curiam).21

The record in this case makes clear that this 

threshold requirement was not met. Neither the original 

Complaint nor the Amended Complaint challenged any 

identified state constitutional provision, statute or 

regulation, nor was there any request to enjoin the 

enforcement of any identified state law (J.A. 153a-

19(...continued)
inmate’s silence. "[The] complaint did not mention or challenge any 
rule or regulation of the Authority; nor did it seek an injunction 
against the enforcement of any identified rule." Baxter. 425 U.S. at 
313 n.12. Thus, the Court concluded that a three-judge court was 
not required. ]d.

20In the instant matter, had the Complaint in 1974 challenged 
the constitutionality of some provision of Louisiana law that 
purported explicitly to require racial segregation in the state’s higher 
education system, a three-judge court still would not have been 
"required." Bailey v. Patterson. 396 U.S. 31 (1962)(where uncon­
stitutionality is beyond dispute, single judge may enjoin state law).

21 In Butler the Court held that it lacked jurisdiction of an 
appeal from an injunction granted by a three-judge court where local 
officials had acted unconstitutionally in using a state statute as a 
pretext for arrest and where no question of the constitutionality of 
the underlying statute was presented to the three-judge court.

- 18 -



183a), The United States’ request for a three-judge court 

was admittedly founded not upon a direct attack to a 

state law on constitutional grounds, but rather on a claim 

that defendants’ "acts and practices" in carrying out their 

duties were unconstitutional (J.A, 191a).

The State, through Governor Roemer, makes 

several novel arguments to support its claim that this 

Court does have direct appellate jurisdiction. For 

example, the Governor argues that this case is within the 

parameters of Section 2281 because it is a suit seeking to 

interpose the Constitution against enforcement of 

delegated legislation, in the form of the Board of 

Regents’ Master Plan (Jurisdictional Statement of 

Governor Roemer at 11-12). The argument will not 

withstand scrutiny. The United States’ specific complaint 

about the Master Plan was that it "fails to address the 

dismantling of the State’s racially dual system of higher

- 19 -



education" (Appendix to Jurisdictional Statement of 

Governor Roemer [hereafter Roemer Appendix] at 

69a).22 Thus the challenge raised here is very much like 

that made in Costello, where effectively it was the 

absence of a policy that caused the condition that 

offended the Constitution.23

Here the Complaints allege that the absence of 

an affirmative policy to dismantle the dual system, 

combined with numerous decisions of the multiple 

administrative decision makers, creates the constitutionally 

offensive condition. The Complaints focus throughout on 

the establishment of the dual system and allege that the 

defendants have failed in their affirmative duty to provide

22The 1974 Complaint identifies the Master Plan as simply a 
proposal (J.A. 162a). It clearly was not a statute or regulation, nor 
was it being challenged as such.

23Plaintiffs in Costello challenged the State’s failure to provide 
medical services to prisoners and to deal adequately with 
overcrowding. See Costello v. Wainwright. 539 F.2d 547 (5th Cir. 
1976).

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specific measures and timetables to eliminate the 

continuing vestiges of that system (J.A. 162a [f 26], 177a 

[f 35]). The Complaints do not challenge as unconsti­

tutional any policies or regulations of the Board of 

Regents (whether contained in its Master Plan or not), or 

of any other defendant, either on their face or as 

applied.24

This case thus is not about any particular policy or 

regulation, but rather about the cumulative effect of

24Quoting 1 33 of the Amended Complaint, where the United 
States alleges that the Regents’ Master Plan "would maintain and 
perpetuate the dual system of public higher education based upon 
race," the Governor characterizes the Master Plan as the equivalent 
of delegated legislation. (Jurisdictional Statement of Governor 
Roemer at 12 n.16.) However, while adoption of the Master Plan 
may not require legislative approval, implementation of its provisions 
is dependent upon appropriations decisions made by each session of 
the Louisiana Legislature, which determines whether or not to accept 
the recommendations of the Board of Regents. (See J.A. 317a-18a 
[United States’ List of Material Facts to the Motion for Summary 
Judgment, n  141-43, 147] (referring to Board of Regents’ funding 
recommendations and to disparities in legislative appropriations to 
historically white and black institutions); J.A 119a, 122a [1974 
Louisiana Constitution, Article VIII, §§ 5(D)(4), 11, 12](Board of 
Regents recommends funding formula but the Legislature makes 
discrete appropriations directly to individual institutional governing 
boards).)

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scores of individual decisions by the Governor (who 

appoints members to the Board of Regents and the three 

institutional boards) and by each of these bodies which, 

collectively, perpetuate the State’s dual system and 

thereby violate the Constitution (see Roemer Appendix 

at 66a-68a).

The State, through the Governor, also 

misconstrues the record in asserting that the United 

States directly challenged the 1974 Louisiana Constitution 

as violative of the federal Constitution (Jurisdictional 

Statement of Governor Roemer at 13). Relying on 

selected excerpts from the United States’ Interrogatory 

Responses, the State attempts to construct a direct 

challenge to its Constitution which (1) does not appear in 

the original or amended Complaint in this case, and (2) 

is inconsistent with the United States’ position that it is 

the action and inaction of the numerous decision-making

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bodies (admittedly created by the State’s Constitution), 

not their mere existence, that offends the Constitution 

(Roemer Appendix at 66a-68a). There is in this litigation 

no direct challenge to the State’s Constitution or statutory 

provisions.

The State’s attempt (again through the Governor) 

to distinguish Costello and Morales also is unavailing. 

Like Morales, there is no central body of written 

regulations or policies challenged by the United States in 

this case and, like Costello, it is the defendants’ failure to 

act under the circumstances -- not the presence of any 

particular offending regulation or state policy — that 

causes the violation.

Costello. Morales. Baxter, and Butler solidly 

establish that challenges, such as those made here, to 

multiple unwritten policies or practices of state officials 

in implementing their duties under state law, are not

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required to be determined by a three-judge court. Thus 

the initial empaneling of the three-judge court was 

improper.

2. Moreover, when the case was reactivated after 

the Morales. Costello. Baxter, and Butler cases were 

decided in 1976 and 1977, the three-judge court should 

not have been reconvened as it was undoubtedly 

improper at that time.25

25Evolution of three-judge court jurisdiction to its current 
narrow application grew out of a recognition by this Court and the 
Congress that the policy behind three-judge courts -  "saving state 
and federal statutes from improvident doom at the hands of a single 
judge," MTM, Inc, v. Baxley. 420 U.S. 799, 804 (1975), had become 
largely anachronistic. See Swift & Co. v. Wickham. 382 U.S. I l l ,  
128-29 (1965) (noting that the three-judge procedure dislocates "the 
normal structure and function of the lower federal courts," "expands 
this Court’s obligatory jurisdiction," and "contradicts the dominant 
principle of having this Court review decisions only after they have 
gone through two judicial sieves") (quoting Florida Lime & Avocado 
Growers. Inc, v. Jacobsen. 362 U.S. 73, 92-93 (1960) (Frankfurter, J. 
dissenting)). See also S. Rep. No. 94-202, 94th Cong., 2d Sess., 3- 
8, reprinted in 1976 U.S. Code Cong. & Admin. News 1988, 1990- 
96 (finding that the original rationale that gave rise to the three- 
judge court concept in 1910 had virtually disappeared). Thus, even 
before repeal of Section 2281 by the Congress, the Court increasingly 
limited three-judge court jurisdiction. E.g.. Phillips v. United States. 
312 U.S. 246 (1941); Swift & Co. v. Wickham. 382 U.S. I l l  (1965);

(continued...)

- 24 -



B. The Case Was Not Required To Be Heard By A 
Three-Judge Court Because A Single Judge 
Should Have Initially Resolved The Statutory 
Claim And Obviated Any Need For A Three- 
Judge Court.

In Hagans v. Lavine. 415 U.S. 528 (1974), decided 

on March 25, 1974, prior to the initial empaneling of the 

three-judge court in this case, the Court approved as 

"accurately reflecting recent jurisprudence" the practice of 

having a single judge initially determine the substantiality 

of the constitutional claim (as noted above, the threshold 

prerequisite for applicability of § 2281) and then resolve 

any statutory claims, convening a three-judge court 

thereafter and only if the case could not be disposed of 

on non-constitutional grounds.26 Accord Rosado v.

^(...continued)
Gonzalez v. Automatic Employees Credit Union. 419 U.S. 90 (1974); 
MTM. Inc, v. Baxley. 420 U.S. 799 (1975).

26The Court in Hagans acknowledged that its holding "may 
appear at odds" with two prior opinions, Brotherhood of Locomotive 
Engineers v. Chicago. R.I. & P.R.. 382 U.S. 423 (1966) and Florida

(continued...)

- 25 -



Wyman, 397 U.S. 397, 403 (1970) (resolution of statutory 

claim initially by a single judge would avoid consuming 

the time of three federal judges in a matter not required 

to be determined by a three-judge court).27 Under these 

precedents, the three-judge district court should have 

never been convened in this case.

This conclusion is further supported by the fact 

that the three-judge court was reconvened in order to 

reach a judgment that rests exclusively upon non­

26(...continued)
Lime & Avocado Growers v. Jacobsen. 362 U.S. 73 (1960), but it 
declined to follow them because it concluded that the Hagans 
holding "accurately reflects the recent evolution of three-judge-court 
jurisprudence." Hagans, 415 U.S. at 543-44. Both those earlier cases 
cited, however, do satisfy the threshold requirement (not met here) 
of a facial challenge to a state statute on constitutional -  non- 
Supremacy Clause — grounds.

27In Philbrook v. Glodgett. 421 U.S. 707, 712 n.8 (1975), the 
Court excused the district court’s failure to follow the procedure 
approved in Hagans because the complaint raised only constitutional 
claims and the statutory claim arose for the first time at oral 
argument before the three-judge court. Accord Alexander v. Fioto. 
430 U.S. 634, 636 nn.6 & 7 (1977) (only basis of claim set out in 
the complaint was unconstitutionality of a statute).

- 26 -



constitutional grounds. See supra note 13. The Court 

has ruled repeatedly that a three-judge court is not 

required to render a ruling on a non-constitutional 

challenge to state law. Gonzalez v. Automatic Employees 

Credit Union. 419 U.S. 90 (1974), holds that denial, on 

non-constitutional grounds, of a requested injunction 

against a state law need not be issued by a three-judge 

court. Similarly, the Court ruled in MTM, Inc, v. Baxley. 

420 U.S. 799 (1975), that a direct appeal under Section 

1253 from the denial of an injunction was proper only 

where the three-judge court’s order was based on the 

merits of a constitutional claim.28

28See also United States v. Texas. 523 F. Supp. 703, 724-28 
(E.D. Tex. 1981) (district court declined to request a three-judge 
court in action initiated prior to repeal of § 2281 where there was 
no direct attack on the constitutionality of a state statute and the 
court concluded it would be inappropriate to expand the parameters 
of § 2281 in light of the repeal); Bradley v. School Board of City of 
Richmond. 324 F. Supp. 396, 398 (E.D. Va. 1971) (district court 
declined to request a three-judge court because even if the relief 
ordered would require non-compliance with a state law, "such an

(continued...)

- 27 -



Thus, a three-judge court was not "required" for 

the purpose of rendering the orders below and direct 

appeal under Section 1253 does not lie.

CONCLUSION

For these reasons, LDF urges the Court to dismiss 

this appeal and direct that the parties seek review in the 

United States Court of Appeals for the Fifth Circuit. 

LDF also urges the Court to exercise its authority under

^(...continued)
injunction would not necessarily be ’upon the ground of the 
unconstitutionality of such statute”'); accord United States v. 
Louisiana. 543 F.2d 1125 (5th Cir. 1976).

- 28 -



the All Writs Act, 28 U.S.C. § 1651, to maintain its stay 

of the district court’s order during the pendency of the 

appellate proceedings.

Respectfully submitted,

*Julius LeVonne Chambers 
Charles Stephen Ralston 
Norman J. Chachkin 
Janell M. Byrd 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Amicus Curiae 
* Counsel of Record

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