Brown v. Board of Education Amicus Curiae Brief of the Attorney General of Florida

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1971

No.

LENA VERN DANDRIDGE, ET AL,
Respondents,

versus

JEFFERSON PARISH SCHOOL BOARD, ET AL,
Petitioners.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WALLACE C. LeBRUN
1100 North Causeway Boulevard
Metairie, La. 70004

ATTORNEY FOR PETITIONERS



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1971

No.

LENA VERN DANDRIDGE, ET AL,
Respondents,

versus

JEFFERSON PARISH SCHOOL BOARD, ET AL,
Petitioners.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

TO THE HONORABLE THE CHIEF JUSTICE AND 
THE ASSOCIATE JUSTICES OF THE SUPREME 
COURT OF THE UNITED STATES:

Your petitioners, the Jefferson Parish School Board 
and others respectfully adopt, by reference, the entire 
petition of Albert B. Eason, and others, Intervenors, in­
cluding both appendices. Your petitioners respectfully 
pray that a Writ of Certiorari be issued out of and 
under the seal of this Court to review the decision of 
the United States Court of Appeals for the Fifth Circuit 
in No. 71-2542, rendered on February 11, 1972, which 
affirmed an earlier judgment by the District Court 
of the United States for the Eastern District of Louisi-



2

ana, New Orleans Division, in civil action number 14,801, 
granting Respondent further relief as originally prayed 
for,

SUPPLEMENTAL ARGUMENT

The primary and main issue to be considered by this 
Court concerns the application of the Equal Protection 
Clause of the Fourteenth Amendment. More particular­
ly, the question to be answered is whether the Equal 
Protection Clause requires a judicially admitted uni­
tary school system to implement the forced busing of 
students out of their respective school districts to other 
school districts merely to achieve a racial balance of 
the entire student body.

Petitioners, in heavy reliance on a prior judgment of 
the District Court, (appendix C), are firmly convinced 
that it has operated a unitary school system on a com­
pletely non-racial basis prior to and continuously since 
the rendition of a previously rendered judgment. 
Though there remained nineteen neighborhood schools 
(in a system of seventy-five) that maintained a one 
race or predominantly one race student body, the sys­
tem was operated on a totally integrated basis. Every 
one of the seventy-five schools operated with integrated 
faculties; there was a single transportation system 
which transported white and black students on a non- 
discriminatory basis; there was a fully integrated ath­
letic program; all other extra-curricular activities, 
such as bands, drama, clubs, etc., were fully non-dis- 
criminatory; and, finally, all of the seventy-five school 
districts were created along geographic lines without 
regard to the prospective racial overtones.



3

Plaintiffs, on May 10, 1971, moved for further relief 
and particularly sought to have the District Court di­
rect petitioners to formulate a new desegregation plan 
which “through racial balance would eliminate the 
racial identification of any particular school”, (empha­
sis added). In addition, plaintiffs sought, inter alia, a 
change whereby the faculty of each school would be 
integrated “in substantially the same ratio of white 
to black teachers throughout the school system”.

Petitioners re-urge in argument, the memorandum it 
has previously submitted to United States Court of Ap­
peals for the Fifth Circuit in support of petitioners’ mo­
tion for a. Suspension and Stay of Injunction, dated 
August 18, 1971 (Appendix C').

WHEREFORE, petitioners pray that this Honorable 
Court will grant a Writ of Certiorari for the purpose of 
evaluating and reversing the decision of the United 
States Court of Appeals for the Fifth Circuit, No. 71-2542, 
and the Judgment of the District Court of the United 
States, Eastern District of Louisiana, New Orleans 
Division, Civil Action Number 14,801, and reinstating 
the previously Court approved plan for a unitary sys­
tem in Jefferson Parish, Louisiana.

Metairie, Jefferson Parish, Louisiana, th is____day
of June, 1972.

WALLACE C. LeBRUN 
1100 North Causeway Boulevard 
Metairie, Louisiana 70004 
ATTORNEY FOR PETITIONERS



4

PROOF OF SERVICE

In furtherance of the Rules I have served 2 copies 
of the above and foregoing Petition for Writ of Certi­
orari upon all parties, by pre-paid mail, addressed to 
their Counsel, th is____day of June, 1972.

WALLACE C. LeBRUN



la

APPENDIX €

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT1

CIVIL ACTION 
NUMBER: 71-2542

LENA VERN DANDRIDGE, et al 

VS:

JEFFERSON PARISH SCHOOL BOARD, et al

MEMORANDUM IN SUPPORT OF MOTION FOR 
SUSPENSION AND STAY OF INJUNCTION

This matter originated with plaintiffs’ complaint on 
July 30, 1964. It seeks a preliminary and permanent 
injunction enjoining defendants “from continuing their 
policy, practice, custom and usage of maintaining and 
operating a compulsory biracial school system in the 
Parish and of assigning students, teachers and other 
school personnel to the schools operated and controlled 
by them on the basis of race” . See paragraph II of com­
plaint.

The complaint alleges that the schools which the 
black children attend are “all limited by defendants 
to attendance by Negro children pursuant to the policy, 
practice, custom and usage of defendants of operating 
a compulsory biracial school system and assigning 
school children therein and other personnel on the 
grounds of race”.



2a

In their said original complaint, plaintiffs prayed for 
eight different preliminary and permanent injunctions, 
all of which, were based on the operation of a dual 
public school system which was then being operated 
on a racial basis.

The said matter was heard on August 10, 1964, and 
after hearing some evidence the Court referred the 
matter to a conference on a later date-. The conference 
was held on August 24, 1964. On January 25, 1965 the 
Court a qua, in a written order held that; “plaintiffs 
were entitled to a preliminary injunction as prayed 
for but that because of the short time remaining be­
fore the opening of the Jefferson Parish schools for 
the 1964-65 session and the many problems involved 
an order entered at that time1 which would require 
the Jefferson Parish School Board to discontinue the 
operation of a compulsory bi-racial school system in 
Jefferson Parish, Louisiana beginning with the 1964- 
65 term of school could not be complied with without 
seriously disrupting the school system to the detriment 
of the pupils of both races”.

Further, the said order made the injunction efective 
with the opening of the 1965-66 school term. Defendants 
were enjoined from continuing to operate a compul­
sory bi-racial school system and were ordered to sub­
mit and file in this record, not later than March 31st, 
1965, a plan which would “provide for the discontinuance 
of the compulsory bi-racial school system in Jefferson 
Parish, Louisiana”.

On June 7, 1965, the District Court considering the 
law and the evidence ordered a plan of desegregation



3a

to be placed in operation by August 31, 1965. The said 
plan called for the desegregation of certain grades in 
the 1965-66, 1966-67 and 1967-68 school years. It also 
called for implementing the “freedom of choice” con­
cept, and set out guidelines for doing so.

A motion by plaintiffs for further relief was filed 
herein on June 21, 1968. A conference concerning this 
matter was held on July 5, 1968. On July 12, 1968 de­
fendants were directed to submit another “plan for 
the assignment of all students for the 1968-69 school 
year upon the basis of a unitary system of non-racial 
geographical zones or a plan for the consolidation of 
grades or both ..

The defendants submitted a proposed plan but the 
Court found that it did not provide for a unitary, non- 
racial school system, but it did provide for further 
integration of the school system. The record reflects 
that although they submitted the plan, defendants did 
not recommend it, contending that the plan was neither 
educationally sound nor economically feasible.

On July 24, 1988, a hearing was held, at which time 
testimony was offered concerning the said plan. Anoth­
er conference regarding this matter was held on 
August 20, 1968. On August 22, 1968 the Court, “after due 
consideration of the evidence, the argument of counsel 
and the law, and in light of the short period of time 
remaining before the scheduled opening of the 1968-69 
school year” found that “it is not feasible to require 
the defendants to provide for a unitary, non-racial 
school system at this time and that to put into effect 
at this time the entire plan submitted by the defendants 
would be unduly disruptive and detrimental to the Jef­



4a

ferson Parish School System”. However, the Court did 
order the implementation of a portion of the proposed 
plan at that time. The order related to a few specifically 
named schools and involved a relatively few pupils. 
That order did not disturb the freedom of choice plan 
under which the system was then operating.

On February 3, 1969 the plaintiffs again filed a motion 
for further relief, seeking an order requiring defend­
ants to submit a report on the progress being made in 
fashioning a plan which would provide for the desegre­
gation of all schools in the Parish on a unitary non- 
racial basis for the 1969-70 school year and other relief 
concerning faculty assignments for that school year.

A hearing was set for February 19, 1989, at which 
time plaintiffs and defendants filed a joint motion in 
which it was suggested that it was agreed that the 
School Board would file in the record on or before 
February 28, 1969 a plan providing for desegregation 
of the Public School System of Jefferson Parish on a 
unitary non-racial basis of operation for the 1969-70 
school year and a report on faculty assignment for 
that school year. The Court ordered that the School 
Board file the plan of desegregation and the report 
on the assignment of faculty on a non-racial basis con­
templated by the joint motion.

In compliance with the court’s order the School 
Board, on February 28, 1969, filed a plan for the de­
segregation of the school system on a unitary non- 
racial basis of operation for 1969-70 and a report on 
the proposed assignment of faculty on a non-racial 
basis for that school year. Maps indicating single dis­
tricts were attached.



5a

On April 18, 1969, plaintiffs filed exceptions to the de­
segregation plan submitted by the defendants and a 
hearing was had on the exceptions on May 17, 1969, at 
which time testimony was offered and the matter was 
taken under advisement. A conference regarding the 
matter was held by the Court on June 17, 1969.

On June 26, 1969, the Court rendered a judgment 
herein. I quote from that judgment:

“Now, after due consideration of the law, the 
evidence and the arguments of counsel, the 
court finds that the plan providing for the de­
segregation of the Public School System of the 
Parish of Jefferson on a unitary non-racial 
basis of operation for the 1969-70 school year, 
submitted and filed on February 28, 1969, but 
not recommended by the Jefferson Parish 
School Board, is acceptable. The court further 
finds that the proposed faculty integration 
formula for the school year 1969-70 submitted by 
the School Board is also acceptable. The court 
further finds that the exceptions of the plain­
tiffs to the plan submitted are not well founded 
and must be overruled, accordingly.
“IT IS ORDERED, ADJUDGED AND DE­
CREED that the plaintiffs’ motion for fur­
ther relief be and it is hereby GRANTED.
“ IT IS FURTHER ORDERED, ADJUDGED 
AND DECREED that the defendants, begin­
ning with the 1969-70 school year, put into ef­
fect the plan providing for the desegregation 
of the Jefferson Parish School System on a uni­



6a

tary, non-racial basis of operation which was 
submitted on February 28, 1969 by the Jeffer­
son Parish School Board, but not recom­
mended by it; and

“IT IS FURTHER ORDERED, ADJUDGED 
AND DECREED that the defendants put into 
effect, beginning with the 1969-70 school year, 
the faculty integration formula submitted by 
the Jefferson Parish School Board. The de­
fendants are to report to the court when they 
have complied with the foregoing order.

“ IT IS FURTHER ORDERED, ADJUDGED 
AND DECREED that the exceptions of the 
plaintiffs to the plan submitted be and they 
are hereby OVERRULED.”

On August 29, 1969, a minor amendment to the 
judgment of June 26, 1969 was entered. It provided that 
pupils who were residing in two certain geographical 
zones who attended two certain schools in the 1968-69 
school year be permitted to attend those same schools 
in the 1969-70 school year.

Defendant Jefferson Parish School Board moved for 
a rehearing of the Court’s order of August 29, 1969, 
asking that the Court reconsider the freedom of choice 
method on the best method of operation of the Pub­
lic School System in Jefferson Parish; that in the alter­
native, the Court issue an order permitting all students 
who desire to do so to attend the school which they 
attended during the 1968-69 school year; that, in the



7a

second alternative, the Court issue an order requiring 
all students, without exception, to attend the schools 
in their unitary district. On September 19, 1989 the 
Court denied the motion of defendant.

The Swann v. Charlotte-Mecklenburg Board of Edu­
cation case was decided by the United States Supreme 
Court on April 20, 1971. And on May 10, 1971 plaintiffs 
filed another motion for further relief asking that the 
defendant Jefferson Parish School Board be ordered 
to formulate a plan “that would provide for the desegre­
gation of every school unit in Jefferson Parish on a 
proportionate basis of a 65-35 white-black ratio, so 
that there will be no basis for contending that one 
school is racially different from the others, and there­
fore, racially identifiable” . The said motion also re­
quested that the defendant board be ordered to assign 
faculty members to each school “on a basis substan­
tially the same as the system-wide faculty racial com­
position, and to hire new teachers on a non-racial 
basis” .

In plaintiffs’ accompanying memorandum to its mo­
tion of May 10, 1971, they principally rely on the Swann 
case. They allege that they are entitled to facilities, 
as Swann puts it, “to prepare students to live in a 
pluralistic society”. The plaintiffs contend that, “ ob­
viously then, whether segregation is de-jure or de- 
facto, the feeling of inferiority experienced by the 
members of the segregated race is equally vibrant and 
real and thus both segregations are constitutionally in­
decorous”.



8a

After two conferences with counsel for all parties 
the District Court, on July 9, 1971 ordered the Jeffer­
son Parish School Board, in cooperative consultation 
with counsel for plaintiffs, formulate a desegregation 
plan for the public schools of Jefferson Parish. The 
plan was to comport with the requirements of Svmnn 
and was to be submitted not later than August 2, 1971, 
and was to be implemented in the 1971-72 school year. 
The order further commanded the Jefferson Parish 
School Board integrate the faculty of each school “so 
that the ratio of white to black teachers in an individual 
school reflects the ratio of white to black teachers in 
the school system as a whole” .

The major controversy revolves about the issues of 
1) providing a system of desegregation based on racial 
balance in relation to the currently existing white- 
black ratio of students and 2) providing forced busing 
of students from, existing geographic zones for the 
sole purpose of achieving that racial balance.

On June 18, 1971, a motion for intervention was filed 
on behalf of Albert B. Eason and some 13,500 others 
who signed petitions to the Court decrying the forced 
busing of students from the geographic zones previous­
ly approved by the Court.

In conferences with the District Court Judge and 
counsel for all parties, it was pointed out that the 
Jefferson Parish Public School System encompasses 
schools on both sides of the Mississippi River and that 
busing of the pupils from one side to the other would 
be impractical. Counsel for all parties agreed that any



Sa

proposed plan that would be submitted would not pro­
vide for transporting pupils across the Mississippi 
River.

On August 2, 1971 the Jefferson Parish School Board, 
in compliance with the Court’s order of July 9', 1971, 
submitted another desegregation plan but did not 
recommend its adoption. The District Court entered 
judgment approving the said plan, on August 10, 1971.

Defendants respectfully contend that it is operating 
a unitary system on a non-racial basis and have been 
so operating since 1969 under the previously rendered 
Court order. The Board sincerely contends that even 
though there are several schools which are either all- 
white, all-black or substantially so, the said schools 
are so only as a result of de-facto segregation. The 
Board shows that the segregated facilities exist solely 
as a result of housing patterns. Not one governmental 
act was alleged or proved to show the existence of de- 
jure segregation.

Plaintiffs failed to produce a single witness to prove 
a single case of de-jure segregation. Counsel contended 
that the very existence of one-race schools was uncon­
stitutional, completely by-passing the question of 
whether the segregation was de-jure or de-facto in 
nature.

Of course, without exception, all of the cases thus 
far decided by the United States Supreme Court that 
relate to public school desegregation are concerned 
only with de-jure segregation. Swann specifically re-



10a

fers to de-jure segregation as violative of plaintiffs’ 
constitutional rights.

Defendants strongly urge that the order of the Dis­
trict Court is erroneous. The defendants have been 
operating within all constitutional requirements and 
mandates. The August 10, 1971 order of the District 
Court amounts to an unwarranted and illegal inter­
ference with the operation of the Jefferson Parish 
Public School system and it provides alleged remedies 
relating to de-facto segregation only.

The only evidence adduced at the hearing on August 
9, 1971 was conclusive in establishing that the bound­
aries for the individual school districts were created 
on a non-racial basis. However, the Court chose to dis­
regard that evidence and apparently concluded, on its 
own initiative, that the mere existence of the one- 
race schools is violative of plaintiffs’ constitutional 
rights in the premises.

At the hearing, defendants produced the planning 
director and one of his executive assistants (his other 
assistant at the time was out of town and unavailable 
for testimony). They both testified that no one at any 
time advised or instructed them, to make any plans 
on a racial basis. Nor did they, in fact, make any plans 
discriminating against any pupil on account of race.

At several of the pre-trial conferences, the Superin­
tendent for the Jefferson Parish Public School System 
assured the Court that the staff was, in fact, adminis­
tering the system on a unitary non-racial basis. There



llja

is a single busing program that transports white and 
black students alike, all of the schools are single dis­
trict schools, i.e., the students are assigned to the 
schools that are located within the geographic bound­
aries for their respective districts, the faculties for all 
schools are substantially integrated, and all curricula 
and extracurricula activities are operated on an in­
tegrated basis.

The School Superintendent further testified that in 
every situation where there is a one-race school, it is 
so only because of the housing patterns that exist in 
each such district. For example, he testified that in 
the area bounded by the Airline Highway, Williams 
Boulevard in Kenner, Lake Ponchartrain and the Jef­
ferson Parish-New Orleans line there are presently 
living only five negro families. He further testified 
that the children of those negro families were cur­
rently assigned to the schools in the districts where 
they reside. The area described by the superintendent 
encompasses fourteen elementary schools (grades 
1-5) and two middle schools (grades 6-8) that were 
either all-white or predominantly all-white (but with 
integrated facilities).

On the South side of the Airline Highway in the upper 
portion of the Parish there exists long standing neigh­
borhoods which are all-black or predominantly all­
black. The composition of the neighborhoods has not 
seriously changed in many years. Reference is specifi­
cally made to the fact that the neighborhoods are the 
same as they were at the time in 1969 when the Dis­
trict Court found, after hearing evidence, that the Jef-



12a

ferson Parish School Board was operating on a uni­
tary non-racial basis. In that area there are two ele­
mentary schools that were all-black (but with inte­
grated facilities) and one middle school which is pre­
dominantly all-black.

On the West side of the Mississippi River, due to 
housing patterns alone, there are only two elementary 
schools which are all-white and three elementary 
schools are all-black. All of those schools, however, 
have integrated faculties. All middle schools on the 
West side of the Mississippi are substantially inte­
grated.

Finally, the defendants show that due to the relative­
ly small number of high schools, all are substantially 
integrated. In fact, the composition of the high schools 
is not included in the Court’s latest order, nor is it at 
issue.

The director of transportation for the Jefferson 
Parish School Board was brought to testify by de­
fendants. He stated that he had studied the proposed 
plan of August 2, 1971, which was submitted by de­
fendants. Based on his study and on the figures pre­
sented to him by the School Board’s planning depart­
ment heads, he calculated that some 3000 students 
who are residing within walking distances of the 
schools to which they are assigned will, under the 
proposed plan, be forcefully bused to schools outside 
of the district in which they reside. He opined that at 
least 90 per cent of those who will be bused are black 
children.



13a

Further, the transportation director testified that he 
calculated that some of the children who will now be 
bused will have to travel more than 14 miles per day 
(round trip) and will be in transit for approximately 
one hour daily (one way). The new plan will require an 
average busing trip of over 7 miles in comparison with 
the present plan, which requires an average busing 
of approximately 2.5 miles. The witness testified that 
the new plan will require 20-30 additional buses and 
that that number of buses is not now available, that it 
takes approximately six weeks to get delivery of new 
buses, and that the Board would have to appoint new 
bus drivers and those drivers would have to be trained.

The District Court, in its reasons for judgment, 
states that, “There is little room for doubt that much 
of the busing which is required in Jefferson Parish is 
due to the past practices of a dual system, the ves­
tiges of which have lingered on”. Defendants respect­
fully suggest that there is not one bit of evidence in 
the record to substantiate that belief.

In ordering the defendants to implement this new 
proposed plan of August 2, 1971, the Court has created 
a situation that the defendant cannot control without 
causing serious harm to the educational program for 
the Jefferson Parish Public School System for the 
1971-72 school year. There is an insufficient amount of 
time available to accomplish the results of the Court’s 
order.

In previous situations in 1964 and again in 1968, under 
comparable circumstances, the Court has delayed im­



plementation of the relevant plans until the following 
school year. In each of those instances the Jefferson 
Parish School Board complied with the Court’s orders 
without undue interference with its educational pro­
gram.. It cannot do so under the order presently in ef­
fect. It is respectfully suggested that the presently 
existing circumstances are more serious than those 
which existed in 1964 and 1968. In the 1964-65 school 
year there was an enrollment of approximately 48,500 
pupils and busing was limited to single district geo­
graphic zones; under the new plan the expected en­
rollment will be approximately 83,000 pupils with ap­
proximately 3000 of those being; transported outside 
their respective districts. Finally, the Court order will 
encompass the spending of approximately $210,000.00 
for the additional buses that will be needed during the 
1971-72 school year. The Court correctly points out that 
the defendant Board is reimbursed by the State of 
Louisiana in the approximate amount of $200,000.00. 
However, that reimbursement is on a budgeted basis 
and there is serious doubt concerning the availability 
of funds for the additional expense.

In conclusion, defendants respectfully pray that this 
Honorable Court grant an immediate order suspending 
and staying the injunction ordered by the District 
Court on August 10, 1971, pending appeal herein of the 
several important legal questions and unresolved 
issues presented here.

Counsel for intervenors is currently out of town 
and is unable to timely comply with the Court’s letter 
request for counsel for plaintiffs-appellees to file a



15a

response to the motion for suspension and stay of in­
junction pending appeal. However, Counsel for inter- 
venors has requested that this memorandum be 
adopted by him on behalf of intervenors.

Metairie, Louisiana, August 18, 1971.

Wallace C. LeBrun 
Attorney for 
Defendants-Appellants 
1100 N. Causeway Boulevard 
Metairie, Louisiana 70004 
834-7676



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