Memorandum on Behalf of Orleans Parish School Board, Defendants

    UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION 

EARL BENJAMIN BUSH, ET AL., 
PLAINTIFFS, 

VS. 
CIVIL ACTION 
NO. 3630 

ORLEANS PARISH SCHOOL BOARD, ET ALS., 
DEFENDANTS 

CONNIE REED, ET ALS., 
PLAINTIFF INTERVENORS 

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MEMORANDUM ON BEHALF OF 

ORLEANS PARISH SCHOOL BOARD, DEFENDANTS 

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SAMUEL 1. ROSENBERG, 
Attorney for Orleans Parish School Board 
747 National Bank of Commerce Building 
New Orleans 12, Louisiana 

JAckson 2-5128 



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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW CRLEANS DIVISION 

EARL BENJAMIN BUSH, ET AL., 
PLAINTIFFS, 

VS. 
CIVIL ACTION 
NO, 3630 

ORLEANS PARISH SCHOOL BOARR, ET ALS., :: 
DEFENDANTS 3: 

CONNIE REED, ET ALS., 

PLAINTIFF INTERVENORS 

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MEMORANDUM CN BEHALF OF 
ORLEANS PARISH SCHOOL BOARD, DEFENDANTS 

MAY IT PLEASE TBE COURT: 

This action originated in 1952 and the Court is so intimately acquainted 

with the history thereof that only the highlights need be mentioned here. 

When this action was originally filed Plessey vs. Ferguson had not yet 

been over-ruled; and Brown vs. Topeka, and related cases, were then pending 

before the Supreme Court of the United States, By agreement of counsel, no 

responsive pleadings were filed herein, pending a decision in the Brown case. 

When the Court decided the Brown case in 1954, it was again agreed that no 

responsive pleadings would be filed herein until the Court implemented its 

original decision, When the second Brown opinion was rendered in 1955, 

counsel for plaintiffs herein called upon defendants to file responsive 

pleadings. At this time a request was granted for a ninety (90) day exten- 

sion of time, within which to file said responsive pleadings. 

Defendants then retained special counsel to represent it herein, and 

extensive litigation followed, which ultimately resulted in this Court issu- 

ing a temporary injunction on February 15, 1956, ordering the defendants to 

desegregate the public schools in the Parish of Orleans with all deliberate 

speed. 

This order was followed by more proceedings which resulted on July 15, 

1959, in this Court ordering the defendants to file a plan of desegregation 

by March 1, 1960, which date was later extended to May 16, 1960. Further 

litigation ensued, and on May 16, 1960, when the Court was advised that the 



- Page 2 - % 

defendants were prohibited by State law from filing such a plan, the Court 

entered an order to the effect that beginning with the opening of school in 

September, 1960, all public schools in the City of New Orleans shall be de- 

segregated in accordance with the following plan: 

(a) All children entering the first grade may attend either 
the formerly all white public school nearest their home, 
or the formerly all Negro public school nearest their 
home, at their option. 

(b) Children may be transferred from one school to another pro- 

vided such transfers are not based on considerations of 
race. 

At the regular session of 1960, additional legislation was enacted by 

the Legislature of Louisiana, which further prevented the defendants from 

complying with the Court's order. The validity of the legislation enacted 

was approved by a State Court, and therein, the defendants were enjoined 

from complying. 

In the interim, the administration of public schools in the Parish of 

Orleans was taken over by the Governor, who superceded the members of the 

defendant Board. On August 27, 1960, this Court, sitting as a statutory 

three-judge Court, declared a number of State Statutes to be violative of 

the United States Constitution, and dissolved the injunction which had 

been ordered by the State Court. 

It was at this time that the defendant Board was advised by its special 

counsel that they had exhausted all of their legal remedies. - They were 

then faced with the alternatives of either resigning their elected office, 

facing a contempt citation or complying with the Court's order. Four of 

the five members of the defendant Board elected the latter alternative, 

and advised the Court and the public of their intention to comply. Where- 

upon, the Court, being assured of the good faith of the members of the 

defendant Board, and noting said fact in its order, on August 31, 1960, 

extended the time for the commencement of desegregation to November 14, 

1960, 

As will be seen from Exhibits P-1, P-2, P-3 and P-4, the defendants 

kept faith with the Court, and upon the recommendation of its Superintendent, 

made a prompt and reasonable start toward full compliance with the May 17, 

1954 ruling of the United States Supreme Court, and the February 15, 1956 

and May 16, 1960 orders of this Court. 

As the Court is well aware, the decision of this Court entered on 

August 27, 1960, and the subsequent actions taken by the defendants in 



% - Page 3 - “ 

compliance therewith, triggered five consecutive extraordinary sessions of 

the Louisiana Legislature, the first of which convened on November 4, 1960, 

just ten days before the effective date of the Court's order. At this first 

extraordinary session a number of statutes and resolutions were enacted into 

law, which had the effect of again making it impossible under the State law 

for the defendants to comply with the orders of this Court. Howevet, the 

Court entered a temporary restraining order on November 10, 1960, restrain- 

ing numerous State officials from enforcing said statutes and resolutions. 

The effect of this order was to again make the defendants subject to the 

orders of the Court; and, as responsible public officials, they, on 

November 10, 1260, took the action set forth in Exhibit P-4. 

On Sunday, November 13, 1960, the Legislature attempted to remove the 

Superintendent of Schools, and the Attorney for the Board from their cffices, 

and the State Superintendent of Education declared Monday, November 14, 1960, 

to be a school holiday. When this Court iscued further temporary rectrain- 

ing orders, restraining the enforcement cf the aforesaid action, the dz=fendants 

followed the orders of the Court, and on November 14, 1960, admitted four 

Negro children into two formerly all white public schools in the Parish of 

Orleans. 

This was the first time since the founding of the public school system 

in the Parish of Orleans in 1877, that colored children attended classes 

with white children. This was such a radical departure from local ecnstoms, 

hardenzd by time, that it stirred dezep emotions among many citizens of this 

community, and led a vocal minority to open demonstration. Fuel was fed to 

the fire by the action of the Legislature on November l4, when it unceremo- 

nicusly addressed out of office four of the five members of the defendant 

Board, because they complizd with this Court's orders. This action of the 

Legislature was promptly restrained by the Court on the same day it was 

taken, and on the following day mcobe roamed the streets of New Orleans and 

mavehed upon the administrative offices of the defendant Board; and were 

dispersed only by forceful peclice action. 

It was against this backdrop that the defendants, although hard beset 

on all sides, nevertheless, kept faith with the Court, and admirably com- 

plied with the provisions contained in their oath of office to support and 

defend the Constitution and laws of the United States. 



On November 30, 1960, the legislative action hereinabove referred to was 

- Page 4 - 

struck down by this Court, sitting as a statutory three-judge District coursed! 

But, the problems of the defendants were far from solved, for the Legis- 

lature in its Second Extraordinary Session re-enacted many of the measures of 

the First Extraordinary Session, abolished the Orleans Parish School Board and 

created a new School Board with members appointed by the Governor (Act No. 2). 

The Legislature also passed Act No. 5, which repealed the right of the Board 

to select its own attorney, and compelled the Board to accept the Attorney 

General of Louisiana as its sole representative. Other measures were designed 

to prevent the defendant from financing the operations of the Orleans Parish 

Public sehaors Furthermore, the Supreme Court of Louisiana held that Act 2 

was constitutional and valia 2 On December 21, 1960, these statutes were 

held unconstitutional and a temporary injunction was issued against the en- 

forcement of all but Act No. 5 and a temporary restraining order was issued 

against the enforcement cf that ace tf 

On December 17, 1960, the day after the Second Extraordinary Session 

ended, the Legislature started its Third Extraordinary Session. In this 

session, the Legislature again purported to establish a new Orleans Parish 

School Boards! and again attempted to remove the Superintendent of Schools 

for continuing to exercise the duties of his office On March 3, 1961, 

this Court sitting as a three-judge District Court granted temporary injunc- 

tions against the enforcement of the aforesaid measures, including Act 5 of 

the Second Extraordinary Session 2 

In the meantime, the State Bond and Tax Board, in October had authorized 

defendants to borrow money to meet current operating expenses; but withdrew 

its approval in December of 1960, and the defendants therefore, were unable 

to make banking arrangements to finance the current operation of schools. 

As a result, teachers and other employees had several late paydays that winter. 

Furthermore, the State Bond and Tax Board had granted permission, in 

November of 1959, for the defendants to call a taxpayers' election, and if 

the proposition carried, to issue Twenty Million ($20,000,000.00) Dollars in 

School Bonds. The election was held in April, 1960, and the electorate 

authorized the issuance of said bonds. The first issue of said bonds was 

advertised for sale in September, 1960, and bids were received in October, 

1960. But,permission of the State Bond and Tax Board to issue said bonds was 

not forthcoming, and consequently, the bonds could not be sold. This effec- 



% - Page 5 = ® 

tively prevented the defendants from proceeding with their long range building 

Br OBUARES 

As late as the Fiscal Session of 1961, which convened in May, 1961, the 

Legislature was still passing punitive measures aimed at the Orleans Parish 

School Board. An amendment was tacked on to the appropriations bill for 

this Fiscal Year, directing the State Board of Education to deny State funds 

to any school whose enrollment dropped to 25%, or less, of its enrollment in 

the years 1959-1960 and 1960-1961. As the Court well knows, the enrollment 

at the two desegregated schools during the year 1960-1961 fell to fifteen 

white children and one colored child at the Frantz School, and three colored 

children at McDonogh No. 19 School. Several months ago, the State Board re- 

duced the State appropriation to Orleans Parish by approximately $125,000.00, 

In the face of all of the above and foregoing, and before the Supreme 

Court of the United States had affirmed all of the aforesaid actions of this 

Court, the defendant Board had to begin making preparations for the school 

term beginning in September, 1961. Consequently, on April 24, 1961, the 

Defendant Board accepted the recommendation of the Superintendent of Schools, 

setting forth the procedure for the assignment, transfer and continuance of 

all pupils in the Crleans Parish Public Schools for the school year 1961- 

1962.27 

The instant motion for further relief was filed by plaintiff herein in 

May, 1961, but after several pre-trial conferences, it was not brought on 

for hearing until now, 

In the interim, the procedure set forth in Exhibit P-5 was scrupulously 

adhered to and upon the hearing of this motion, counsel for the plaintiffs 

stipulated that the procedures were carried out in a non-discriminatory 

fashion. 

The plan used by the Board combines this Court's order of May, 1960, 

with the provisions of Louisiana Act 492 of 1960. Act 492 is identical to 

the Alabama Pupil Placement Law, which was held to be not unconstitutional 

on its face in the Shuttlesworth case, infra. The plan was applied to both 

white and colored children, at the first grade level, who wished to attend 

a school, other than the school of his attendance district. As the testi- 

money adduced at the hearing indicated, by using 90 as the minimum acceptable 

1.Q., and the 50th percentile of the readiness at the school to which transfer 

was requested, none of the sixty-six colored children who applied for transfer 



- Page 6 ~ 

to a previously all white school qualified. Nevertheless, the defendant 

Board, still cognizant of its legal obligation to comply with the order of 

this Court to desegregate the public schools of this Parish with all delib- 

erate speed, lowered the I.Q. requirement to 80 and the readiness score to 

56. Despite the fact that the national readiness average is 70, the aver- 

age for all white children at the first grade level in the City of New 

Orleans is 72; and the average readiness of first grade children at some 

of the schools to which transfers were requested has been in the high 80's, 

for the past three years. The defendants felt, and still feel, that a 

colored child with an average 1.Q., and average readiness has a better 

chance of succeeding in a previously all-white school, than does a colored 

child whose I.Q. and readiness is below average. But, in order to proceed 

with all deliberate speed, some pupils had to be selected, so the Board ap- 

proved the transfer of eight colored children to previously all-white 

schools at the commencement of the school term in September, 1961.38 

In contrast, with the chaotic conditions encountered in November, 1960, 

the school term in September, 1961 commenced with comparative quiet. The 

work of the members of the defendant School Board in educating the public 

and municipal authorities, to the responsibility of all citizens to obey 

constituted authority and to maintain law and order, had begun to bear 

fruit. Although enrollment figures in the four newly desegregated schools, 

and the two schools which were desegregated in November, 1960, fell off 

radically in the first days of the term, enrollment figures at said schools 

have slowly approached sordaley 3 

The instant intervention was filed last month seeking to obtain an in- 

junction, restraining the defendants from refusing to admit and enroll and 

educate the plaintiff-intervenors, and others similarly situated, to schools 

on a non-racial basis and without racial discrimination; restraining the de- 

fendants from continuing the system of initial assignments on the basis of 

race; and restraining the defendants from applying any discriminatory pupil 

transfer or assignment standards, criteria or procedures which operate to 

limit desegregation and preserve the pre-existing segregated school system. 

It was shown at the hearing that none of the 100 plaintiff-intervenors 

availed themselves of the procedures established by the Board for transfers 

at the first grade level. It was also shown that although 136 colored children 

applied for transfers for November, 1960, and 66 colored children applied for 

transfers for September, 1961, none of those who were not given permits to 

transfer have intervened in this proceeding. 



- Page 7 - SL 

LAW AND ARGUMENT 

The plaintiffs herein have relied heavily upon the fact that the de- 

fendant Board still maintains dual attendance districts, in that separate 

districts are drawn for white and colored schools, 12/ 

At the outset of this argument, it should be made perfectly clear to 

the Court that the defendant School Board does not take the position that 

the procedures which it followed in the fall of 1960, or the procedures 

which it followed in the summer of 1961, are a permanent plan for desegre- 

gating the public schools for the Parish of Orleans, in compliance with the 

orders of this Court. Too many Federal Circuit Courts of Appeal have al- 

ready held such plans to be violative of the 14th Amendment to the United 

States Constitution, for such a position to be seriously argued to this Court. 

On the contrary, however, the basic legal position of the defendant 

Board is that it has acted in perfect good faith, in carrying out the orders 

of this Court. That in so doing, it has made a prompt and reasonable start 

toward full compliance. But while still in a period of transition it has 

encountered every variety of obstacle which the mind of man can conceive; 

and, each of these obstacles have to be eliminated in making the transition 

from a segregated to a desegregated school system. It is the further posi- 

tion of the Board that additional time is absolutely necessary in the public 

interest and is consistent with its good faith compliance at the earliest 

practicable date. 

A, Basic Decisions of the United States Supreme Court 

After carefully considering voluminous briefs and extensive oral 

argument, the Supreme Court of the United States in Brown vs. Board of 

13/ 
Education, recognized the validity of all of the arguments presented 

herein by defendants, and because of its importance there follows an exten- 

sive quotation of the pertinent parts of the Court's opinion, implementing 

its original decision, beginning at 75 S. Ct. 753, 756: 

"Full implementation of these constitutional prin- 
ciples may require solution of varied local school prob- 
lems. School authorities have the primary responsibility 
for elucidating, assessing, and solving these problems; 
courts will have to consider whether the action of school 
authorities constitutes good faith implementation of the 
governing constitutional principles. 

"In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi- 
tionally, equity has been characterized by a practical 



a - Page 8 ~ a 

flexibility in shaping its remedies and by a facility 
for adjusting and reconciling public and private needs. 
These cases call for the exercise of these traditional 
attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools 
as soon as practicable on a non-discriminatory basis. To 
effectuate this interest may call for elimination of a 
variety of obstacles in making the transition to school 
systems operated in accordance with the constitutional 

principles set forth in our May 17, 1954 decision. 
Courts of equity may properly take into account the 
public interest in the elimination of such obstacles 

in a systematic and effective manner. But it should 
go without saying that the vitality of these constitu- 
tional principles can not be allowed to yield simply 
because of disagreement with them. 

"While giving weight to these public and private 
considerations, the courts will require that the defend- 

ants make a prompt and reasonable start toward full com- 
pliance with our May 17, 1954 ruling. Once such a start 
has been made, the Courts may find that additional time 
is necessary to carry out the ruling in an effective 
manner. The burden rests upon the defendants to estab- 
lish that such time is necessary in the public interest 
and is consistent with good faith compliance at the 
earliest practicable date, To that end, the courts may 
consider problems related to administration, arising 

from the physical condition of the school plant, the 
school transportation system, personnel, revision of 
school districts and attendance areas into compact units 

to achieve a system of determining admission to the pub- 
lic schools on a non~-racial basis, and revision of local 

laws and regulations which may be necessary in solving 
the foregoing problems. They will also consider the ade- 
quacy of any plans the defendants may propose to meet 
these problems and to effectuate a transition to a racially 
non-discriminatory school system. uh 

Outside of the Brown case, the only other occasion on which the 

Supreme Court did more than simply affirm the decisions of subordinate 

courts, or deny certiorari in per curiam decisions, was in the case of 

Cooper vs. Aaron; t4/ In analyzing the opinion in Cooper vs. Aaron, it 

should be remembered that therein the Little Rock School Board sought to 

suspend its plan for desegregation for 2% years. The District Court ap- 

proved the Board's application to suspend its plan, but the 8th Circuit 

Court of Appeal reversed, and the Supreme Court affirmed the 8th Circuit. 

Therein the Court called attention to the fact that in the Brown case, 

District Courts were directed to require "a prompt and reasonable start 

toward full compliance’ and to take such action as was necessary to bring 

about the end of racial segregation in the public schools "with all delib- 

erate speed." At Page 1404, the Court said: 

"On the other hand, a District Court, after analysis of 
the relevant factors (which, of course, excludes hos~- 
tility to racial desegregation) might conclude that 
justification existed for not requiring the present 
non~-segregated admission of all qualified Negro chil- 
dren. In such circumstances, however, the Court 

should scrutinize the program of the school authorities 



® - Page 9 ~ 

to make sure that they Had developed arrangements 

pointed toward the earliest practicable completion 
of desegregation, and had taken appropriate steps 
to put their program into effective operation. 1" 

In the same case, in the concurring opinion of Mr. Justite Frank=- - 

furter, is found further evidence of the Court's conviction that time is 

needed in many jurisdictions to cope with the tremendous local problems 

encountered in making the transition to a desegregated school system. He 

said, at Page 1413: 

0s .Local customs, however hardened by time, are 

not decreed in heaven. Habits and feelings they 
engender may be counteracted and moderated. Exper~ 

ience attests that such local habits and feelings 
will yield, gradually though this be, to law and 
education. And educational influences are exerted 
not only by explicit teaching. They vigorously flow 
from the fruitful exercise of the responsibility of 
those charged with political official power and from 
the almost unconsciously transforming actualities of 
living under law. 

"The process of ending unconstitutional exclusion of 
pupils from the common school system - 'common' mean- 
ing shared alike =~ solely because of color is no 
doubt not an easy, overnight task in a few States 
where a drastic alteration in the ways of communities is 

involved. Deep emotions have, no doubt, been stirred. 
They will not be calmed by letting violence loose - 
violence and defiance employed and encouraged by those 
upon whom the duty of law observance should have the 
strongest claim =~ nor by submitting to it under what- 
ever guise employed. Only the constructive use of 
time will achieve what an advanced civilization de- 

mands and the Constitution confirms." (Underscoring 
mine) 

The principles enunciated by the Supreme Court have been conscien- 

tiously followed by the Federal Courts, in every Circuit faced with the 

problem. 

A review of these decisions will undoubtedly be helpful here. 

B. United States Court of Appeal, Fourth Circuit 

In North Carolina, a Pupil Placement Law, very similar to La. Act 

492 of 1960, was held to be not unconstitutional .23/ 

In Virginia, an early Pupil Placement Law, containing racial cri- 

teria, was held to be so patently unconstitutional on its face that it 

was not necessary to convene a three-judge court to pass upon it.L16/ 

Similarly, in earlier phases of the case at bar, an earlier Louisiana 

Statute was also held to be unconstitutional. if However, later cases 

arising out of Virginia have not objected to their current Pupil Placement 

Law, which is very similar to Louisiana Act 492 of 1960, and a discussion 



- Page 10 - 

of several of said cases will be helpful in determining the underlying phil- 

osophy of the 4th Circuit Court of Appeal as expounded in said cases, 

18/ In Hamm va. County School Board of Arlington County, Virginia,== 

the Court had previously held, for further examination and study, the cases 

of 26 Negro students, as to whom the denial of transfers to white schools 

by the School Board was affirmed by the District Court. The Court of Ap- 

peals for the 4th Circuit found evidence in the record in this case which 

is absent from the record in the instant case, namely, that the applica- 

tions for transfer were subject to tests not applied to the applications 

of white students applying for transfer. The Court noted that the School 

Board and the District Court had the threat of schools being closed hang- 

ing over them. These threats were, of course, very real and very serious, 

in the case at bar. In the cited case, as in the case at bar, the school 

closure statutes have since been declared unconstitutional. In the cited 

case, the Circuit Court remanded the case and directed the District Court 

to issue an injunction, directing the School Board to re-examine the ap- 

plications, which had been denied, with expedition, so that those refused 

could be reviewed by the District Court, if requested. The Orleans Parish 

School Board has no objection and invites the Court to review the applica- 

tions of all of those pupils which it rejected, if said applicants or 

their parents request such a review, It is important to note again that 

not a single solitary request for review has been asked for in the case at 

bar. 

In Farley vs. Turner ,12/ the Court required the plaintiffs to first 

exhaust the administrative procedures established in the Pupil Placement 

Law of Virginia, before seeking the intervention of the Federal Courts, 

and said, at page 132: 

"This court has consistently required Negro pupils 
desirous of being reassigned to schools without regard 
to race to pursue established administrative procedures 
before seeking the intervention of a federal court. 
This insistence is predicated upon the availability of 
a reasonably expeditious and adequate administrative 
remedy. Where, however, the administrative procedures 
fail to meet this standard courts may not deny their 
constitutional rights to persons otherwise entitled to 
relief. . ." 

In plaintiffs’ memorandum brief filed herein, great reliance is 

placed upon another case, namely, Jones vs. School Board of City of Alex- 

andria, va.29/ The language quoted on Page 5 of plaintiff's memorandum 

was used by the Court, but it is important to know the context in which 



- Page 11 = ® 

it was used, and the ultimate decision of the Court. 

The Jones case was not an attempt to force the School Board to com- 

pletely desegregate all schools in the City of Alexandria, Virginia imme- 

diately. Rather it was simply a review of the applications of 14 children 

who wished to be transferred from colored to white schools. The School Board 

initially rejected all applications and the District Court ordered that 9 of 

said 14 should be admitted. The other 5 were denied further relief because 

of residence or academic deficiency, The Circuit Court affirmed the action 

of the District Court. 

In its opinion, at Page 75, the Court gave a summary of the school 

situation in Virginia, showing the extremely difficult situation which faced 

the Board, and pointing out that only after State laws had been held uncon- 

stitutional did the School Board have any power to operate schools on a 

racially non-discriminatory basis, The situation there closely parallels the 

situation in the case at bar. The court also espoused the legal principles 

enunciated in the Shuttlesworth case and commented that it was not contended 

by the appellants that residence and intelligence or scholarship attainments’ 

tests may never be properly applied in determining particular schools that 

children shall attend, and the Court said, at page 75: 

"In the absence of a showing that these factors are 
used in such a way as to deprive individuals of their 
constitutional rights, they are, of course, not objection- 
able on constitutional grounds. . ," 

It is important to again emphasize that in the case at bar the plain- 

tiffs have admitted that the tests applied were applied in a completely non- 

discriminatory, impartial fashion. 

After using the language quoted on Page 5 of plaintiffs' memorandum, 

the Court said at Page 76: 

"However, it does not follow that there must be an 
immediate and complete reassignment of all the pupils in 

the public schools of Alexandria." (underscoring mine) 

After quoting a part of the same language hereinabove in this brief 

quoted from Cooper vs. Aaron, the Court concluded, at Page 77: 

"The two criteria of residence and academic prepared- 
ness, applied to pupils seeking enrollment and transfers, 
could be properly used as a plan to bring about racial 
desegregation in accordance with the Supreme Court's 
directive. . .If the criteria should be applied only to 
Negroes seeking transfer or enrollment in particular 
schools and not to white children, then the use of the 

criteria could not be sustained. Or, if the criteria 

are, in the future, applied only to applications for trans- 
fer and not to applications for initial enrollment by chil~- 
dren not previously attending the city's school system, 



- Page 12 ~ 

then such action would also be subject to attack on con- 
stitutional grounds, for by reason of the existing segre- 
gation pattern, it will be Negro children, primarily, who 
seek transfers." 

In Hill vs. School Board of City of Norfolk, va. ,2L/ the Court was 

faced with a conflict between the School Board and the State Pupil Placement 

Board. The School Board filed a report with the District Court, advising it 

of what it had done, the District Court approved the action of the School 

Board and the Circuit Court affirmed. In the Hill case, the Board's policy 

was very similar to the policy of the defendant herein. Therein initial as- 

signments to the first grade are still made on a racially segregated basis 

and a pupil thus assigned must remain unless on an individual application he 

is reassigned on the basis of criteria which are not then applied to other 

pupils who do not seek transfers. The Circuit Court found that such an ar~ 

rangement does not meet the requirements of the law, but said at Page 475: 

"The District Judge, however, did not approve what 
has been done to the present time on the basis that it 
was complete and final compliance with the Supreme 
Court's command. He recognized that the Supreme Court 
contemplated an orderly adjustment, and that compli- 
ance might be effected through a series of progressive 
steps taken as rapidly as the necessity for practical 
accommodation permits. His approval of what has been 
done was thus on the basis that the board has taken 
interim measures and is proceeding toward the ultimate 
goal of complete compliance, with the deliberate speed 
which has been ordered." 

It is interesting to note that the Court called particular attention 

to the valiant efforts of the District Judge (Judge Hoffman) to marshall com- 

munity support for the law, and to encourage obedience by those charged with 

official responsibility. The opinions previously rendered by this Court are 

replete with similar admonitions and pleas. Also, there, as here, the Court 

commented upon the past conduct of the School Board, and found that it was 

proceeding in good faith and with reasonable speed, in compliance with the 

directive of the Supreme Court. 

The last Virginia case, which will be commented upon herein, is the 

recent case of Dodson vs. The School Board of the City of Charlottesville.22/ 

There 10 Negro pupils prosecuted an appeal from the action of the District 

Court, sustaining the School Board's denial of applications for enrollment 

in white schools in Charlottesville, Virginia. They also seek judicial re- 

examination of the desegregation plan presently in effect in Charlottesville. 

The opinion reviews the facts therein presented, and found that predicated 

upon residence requirements and academic deficiencies, the applications for 



- Page 13 ~ 

® a 
transfer were properly denied. However, the Court reviewed the overall plan 

of the Board, which there, as here, retained the traditional separate dis- 

tricts for colored and white schools, and specifically opined that there can 

be no question that these practices are forbidden by the l4th Amendment of 

the Constitution of the United States. However, the Court said: 

"Because of the unconstitutional application of the 

assignment criteria, as clearly revealed by this record, 

we would normally be required to reverse, However, the 

Charlottesville school authorities have not attempted to 

defend the present method of assigning pupils as a per- 

manent assignment system. They insist that it is not a 

pupil assignment plan meant to continue indefinitely 

but rather a plan by which they intend in good faith to 

achieve as promptly as possible the desegregation of 

their schools, as required by law." 

The Court commented on the fact that the District Judge gave weight to 

the fact that the school authorities had evidenced an intention to comply 

with the law and expressed his hope that this course would continue, and in
 

affirming the action taken below, the Court said: 

"In the light of these factors, and as the particular 

assignment procedures were designed to be temporary meas- 

ures only, we will at this time affirm the decision of the 

District Court. The action we take is based on the particu- 

lar history and circumstances associated with this case. 

In appeals involving school desegregation problems, where 

the Supreme Court has permitted a period of transition 

for the desegregation of schools, each case is to some 

extend dependent on its own particular facts. The atti=- 

tude of particular school authorities, their past con- 

duct, the progress they have been making, the varying ad~ 

ministrative difficulties that may be shown to exist in 

different localities, the court's view as to the officials’ 

future intentions, and other factors must be taken into 

consideration. 's= 

So that even though the Court found specifically that the plan being 

followed by the School Board was unquestionably unconstitutional, it never- 

theless approved its use and application during the difficult period of 

transition. It is this concept which is strenuously and sincerely urged to 

your Honor in the case at bar. 



- Page 14 - 

C., United States Court of Appeal, Eighth Circuit 

The Eighth Circuit has reached the same conclusion, as has the 

Fourth Circuit. 

The problems encountered, and the history of desegregation, in the 

Dollarway School District No. 2, Jefferson County, Arkansas, is embodied in 

24/ 
the case of Dove vs. Parham. 

The proposal of the School Board there was to discharge its obliga- 

tions to move with all deliberate speed toward the elimination of compulsory 

segregation in its district, through the utilization of a permissible period 

of transition, and through the application, in a valid manner, of the pupil 

assignment criteria set up in the Arkansas Pupil Assignment Law, Act 461 of 

1959. The Board's plan was to conduct a pre-school registration at the first 

grade level, so as to give every registered student the opportunity to indi- 

cate a preference as to the school in the district which the student desired 

to attend. All of such students were to be given nationally recognized tests 

and each student registered for the first grade who scores at least in the 

average range of such tests under nationally uniform grading, will be assigned 

to the school for which a preference is indicated, provided that such assign- 

ment is consistent with available room and teaching capacity. Students who 

score below the average range on the test will be assigned initially to the 

school at which, in the judgment of the Board, they will be afforded the 

greatest opportunity to develop their educational capacity. Inasmuch as 

there are only two schools in the Dollarway District, one colored and one 

white, the Court was completely aware of the fact that from a practical point 

of view a white child would be assigned to the white school (Dollarway) regard- 

less of the score he makes on the test; and that Negro students who score below 

average will be automatically assigned to the colored school (Townsend Park). 

But, the Court said, at the end of its footnote 4: 

". ..obviously, such an assignment method can not be 
viewed as a constitutional permanent solution to the 

Board's problems. But this does not necessarily mean 
that the plan is not valid as a 'transitional plan’, 

as a substantial step toward an ultimate goal." 

The Court concluded that the Board should proceed with its proposed 

plan for the making of assignments for the 1961-1962 term, and should report 

back to the Court not later than July 15th, as to the assignments actually 

made, at which time the Court would then be in a better position to judge 

whether the defendamts have in fact and in good faith initiated a period of 



- Page 15 - 

transition which will lead ultimately to the establishment of a non-discrimi- 

natory school system and said at, 6 Race Relations Law Reporter, at Page 680: 

"Giving due weight to the arguments against the plan 
advanced by plaintiffs, the court is persuaded that 
the plan is sufficient on its face to meet initial 

requirements, and that if actually carried out objec- 
tively and with a good faith intent to end ultimately 
the system of segregation, which has existed tradition- 
ally in the Dollarway District, it will constitute an 
adequate start toward the elimination of such segrega- 

tion and will initiate a permissible transition period. 

"An affected school district is permitted during a transi- 
tion period some freedom of selection in designating 

the Negro students who are to attend formerly segregated 
schools, and in that connection they may employ legitimate 
assignment criteria and may even give some limited consid-~- 
eration to race. See Dove vs. Parham, supra, 282 F 2d 

at Page 262. And the court feels that the basic intelli- 
gence or mental readiness and maturity of Negro students 
about to enter school at the first grade level is a legi- 
timate and objective basis of selection during the tran- 
sition period and may permissably be used by the Board 
during such period in accomplishing the program which it 
has initiated." 

As mentioned hereinabove, the leading case of Cooper vs. Aaron arose 

out of Little Rock, Arkansas. The more recent opinions handed down by the 

Federal Courts in connection with the Little Rock situation are entitled 

Norwood vs. Tucker .23/ 

In 1961, the assignments proposed by the School Board were attacked 

in the District Court. The plaintiffs argued that since the Eighth Circuit's 

prior opinion had held that school assignments made two years before were 

discriminatory, it followed that the Negro students who were now entering the 

eleventh and twelfth grades were in Negro schools because of the discrimina- 

tion in initial assignments. The Court agreed, but said in 6 Race Relations 

Law Reporter, at Page 684: 

"However, all of the reassignment requests for the 
Senior High School were for the 9th and 10th grades 
and none for the two higher grades. If there were 
any who expressed a preference for those two grades 
(a fact not reflected by the record), they did not 

pursue the reassignment procedure required by the 
administrative regulations of the School Board, and 
therefore, as it now stands, there are no Negro pupils 

who have requested admission to those grades." 

In denying the plaintiffs’ motion, the Court recognized the efficacy 

of the propositions here being urged by the Orleans Parish School Board, and 

said, at Page 685: 

"I think it is demonstrated that the board is making 

progress, although not as fast as plaintiffs and some 
others would like. Last year there were ll Negro children 
in the formerly white Little Rock schools, this year there 
will be 48. While this is not a proportionate number, it 
is something more than a token number.,, 



- Page 16 - 

"I think each year must be judged on its own merits. 
I would expect the Board to make more progress next 
year and the years to follow. The Little Rock system 
is going through a transitional period, but it is 
imperative that there be continual progress in the 
development of its integration plan. 

"No complaint has been made here as to the reassign- 
ment or lack of one as to any particular pupil. The 

only objection is that since so few requests for re- 
assignment by negroes were granted that this proves 
that the reassignment procedure was not objective. 
I can not say this follows, particularly inasmuch as 
there were only 4 requests for reassignment by negroes 
in the Senior High system and only 12 in the Junior 
High. 

"Reasonable men, conscious of their responsibilities 
and endeavoring to preserve an excellent school sys- 

tem, but attempting to guide the district's affairs 
in a period of transition into a new way of life in 
a community, will differ in their approaches. It may 

be that I would have adopted a different method of 
procedure this year. It may be, and in fact it is 

likely, that any other group would not have utilized 
the identical method here employed." 

D. United States Court of Appeal, Fifth Circuit 

A 'stair-step' plan calling for complete desegregation in twelve years 

was begun in September, 1961, in Dallas, Texas. 2 

In Dallas, the District Judge violently disagreed with, but neverthe- 

less followed, the mandates of the Fifth Circuit Court of avpests SL 

Here the Court of Appeal for this Circuit clearly showed that it was 

not their understanding of the Brown case nor Cooper vs. Aaron that immediate 

en masse desegregation was required, nor even in every instance advisable. In 

1957, the District Court entered a general order requiring desegregation of the 

public schools of Dallas 'with all deliberate speed. No further proceedings 

were taken for thirteen months when, in August of 1959, a motion for further 

relief, similar to the motion filed in the instant case, was filed. The 

District Court denied immediate desegregation but retained jurisdiction and 

recessed the hearing to the first Monday in April, 1960. The Circuit Court of 

Appeal modified this order so as to require the defendants to make a prompt and 

reasonable start toward full compliance and submit a plan within thirty days. 2 

The Board complied and submitted the aforesaid twelve-year stair-step plan of 

desegregation, starting with the first grade in December, 1961. The District 

Court rejected this plan and ordered the Board to submit another plan, calling 

for three different types of schools, which plan the Court subsequently approved. 

The Court of Appeal, however, again reversed the District Court and approved the 



- Page 17 - 

first plan submitted by the Board (save and except for one paragraph thereof 

which listed restrictions on transfer under certain specified conditions). In 

its opinion, at 285 Fed (2d) 43, the Court stated that it was reluctant to sub- 

stitute its judgment for that of the District Court, and indicated that it was 

willing to do so, only to the extent necessary to assure a prompt start toward 

full compliance, and reasonable, even though conservative, progress toward 

bringing about the end of racial segregation in the public schools with all 

deliberate speed. 

It is true that in its supplemental opinion the Court, even though 

29/ 
Arp 

recognizing the practicability of the argument in Kelly vs. Board of Education’ 

declared that classification by race for purposes of transfer is hardly less un- 

constitutional than for purposes of original assignment. Nevertheless, the 

Court cited approvingly from Shuttlesworth vs. Birmingham Board of Education>y! 

which held that the Alabama Pupil Placement Law, (which is identical to Louisiana 

Act 492 of 1960) was not unconstitutional on its face, and upheld the right of 

a School Board to assign pupils to school upon any reasonable and legitimate 

basis. The supplemental epiaibn further commented that all other school dis- 

tricts in the State of Texas had the right to use the Texas Pupil Placement Law 

and that the Dallas Board should not be treated differently from other School 

Boards in the State. 

It is important to note that in the State of Texas many school dis- 

tricts were desegregated prior to the start made in Dallas in September, 1961, 

For example, the public schools in Corpus Christi, Texas, have been completely 

desegregated for at least seven years, 

In the instant case, no other school district in the State of Louisiana 

has yet made a start toward desegregating its public schools. The East Baton 

Rouge Parish School Board and the St. Helena Parish School Board are both under 

orders issued by this Court to desegregate their public schools with all delib~- 

erate speed. Neither case, however, has yet progressed to the point where the 

respective boards have evolved a plan aimed at compliance nor has the Court yet 

handed down a specific plan. It is submitted that Orleans Parish should not be 

the only Parish in the state not allowed to make use of the Louisiana Pupil 

Placement Law (La. Act 492 of 1960). 

The Fifth Circuit has also had occasion to consider the instant problem 

in two cases arising in Florida. These cases differ from the instant case in 

that the Court found therein that the respective Boards had not made a reasonable 

start toward full compliance with the Supreme Court's May 17, 1954 ruling. 



 L » 

- Page 18 ~ 

In the Mannings case, which originated in Hillsborough County, the 

District Court dismissed plaintiffs’ complaint because they had not exhausted 

their administrative remedies under the Florida Pupil Assigoment Act. In the 

course of its opinion, the Court cited with approval ome of the opinions handed 

down by the Eighth Circuit in Parham vs. Dove, supra, and emphasized that por- 

tion of the opinion in 271 Fed. (2d) 132, at p. 135, which called attention to 

the fact that the school district had not at that time adopted any formal plan 

or taken any other steps publicly to disestablish segregation in the school 

system. The Court also emphasized that portion of Cooper vs. Aaron, supra, 

which placed upon State authorities the duty to devote every effort toward 

initiating desegregation. The court did not strike with nullity the School 

Board's plan to use the Florida Pupil Assignment Act but did reverse the decision 

of the District Court, feeling that the administration of the plan should be 

"...against a background of a decree of the trial Court prohibiting the consider- 

ation of the race of the pupil as a relevant factor...', saying, at Page 375: 

"The court's order dismissing the complaint without 
hearing would require these school children to do this with- 
out the protection of a court order making certain that the 
factor of race would not be a consideration in the solution 
of these many intangible tests. The failure of appellee to 

show any disposition to abandon the segregation policy, long 

pursued, and, since 1954, known to be illegal, constrains us 

to hold that the plaintiffs are entitled to have such massive 
testing as is contemplated, assuming that the Florida statute 
if carried out objectively and in good faith, against the 
background of a decree of the trial court prohibiting the 

consideration of the race of the pupil as a relevant factor, 
assuming, of course, that the plaintiffs establish a fac- 
tual basis to support the allegations of their complaint." 

Finally, it should be noted that, Your Honor recognized the efficacy 

of the legal propositions here being advanced when, in your opinion entered on 

February 15, 1956, you said: 

"The granting of a temporary injunction in this case does 
not mean that the public schools in the Parish of Orleans 
would be ordered completely desegregated overnight, or even 
in a year or more. The Supreme Court, in ordering equitable 
relief in these cases, has decreed that the varied local 
school problems be considered in each case. The problems 
attendant desegregation in the Deep South are considerably 
more serious than generally appreciated in some sections 
of our country. The problem of changing a people's mores, 
particularly those with an emotional overlay is not to be 
taken lightly. It is a problem which will require the 
utmost patience, understanding, generosity and forbearance 
from all of us, of whatever race..." 



- Page 19 - 

E., Application of Law to the Case at Bar 

Against the fabric of the above and foregoing decisions, the legal 

position of the defendant Board is considerably clarified. Under the laws 

of the State of Louisiana, it had no authority up until August 27, 1960 to 

operate desegregated schools in the Parish of Orleans. As responsible, con- 

scientious public officials, they did everything within their power, but al- 

ways within the fabric and frame-work of the law, to oppose a change in the 

laws as applied to public education, and the consequent radical change in the 

established mores of the community. But once their legal remedies were ex- 

hausted, they determined that, as the responsible public officials which 

they are, they must bow to the mandate of the Court, and proceed to carry 

out the "law of the land," as they were directed so to do, "with all delib- 

erate speed.” 

Webster's New International Dictionary defines "deliberate''as being 

well-advised; carefully considered; not sudden or rash; as weighing facts 

and arguments with a view to a choice or decision; carefully considering the 

probable consequences of a step; circumspect; slow in determining; not hasty 

or sudden; slow, 

Plaintiffs here complain that no formal plan was filed by defendants 

with the Court. The filing of a formal plan was neither in order nor called 

for. The Court had furnished the Board with a plan and the Legislature had 

furnished the Board with Act 492 of 1960. The Board then in public session 

adopted the plan under which it initiated the beginning of desegregation in 

this communi ty. 32/ This was no secret, subjective plan, but rather was one 

which was given full publicity in the local, state, national and international 

press. This was a public announcement by the Board of its intention to come 

ply with the orders of this Court. Even though this action of defendants 

brought upon them the wrath of the Governor, and of the Legislature, and sub- 

mitted them, and Your Honor, to tribulations, recriminations, accusations and 

accrimony seldom vented against respectable, responsible public officials, 

they have never wavered from their statement to the Court made in September, 

1960, that they would in good faith comply with the orders of this Court. 

At a time when the Supreme Court of the United States had not yet af- 

firmed all of the actions of this Court, sustaining the continued validity 

of the defendant Board, and at a time when its capacity to borrow from local 

banks to meet current operating expenses had not yet been clarified, and 



- Page 20 - 

while permission to issue bonds to obtain the funds, with which it could al=- 

leviate the conditions complained of by plaintiff-intervenors had not yet 

been granted, the Board nevertheless, continued to progress toward full com- 

pliance, when, in the spring and summer of 1961, it selected 8 Negro pupils 

to further desegregate the public schools in this Parish for the school year 

commencing in September, 1961. 

The conditions complained of in plaintiff-intervenors' complaint can 

only be remedied by the construction of additional neighborhood schools to 

accommodate the children of each neighborhood. As was pointed out at the 

hearing,33/ 65 of the 100 minor intervenors presently attend the Moton 

School, which is located within the Desire Street Housing Project, and 10 

more attend the Edwards Elementary School which is immediately adjacent 

thereto. The evidence showed that two years ago a contract was let, and 

piling was actually driven, to prepare for the construction of 20 additional 

classrooms at the Moton School and for 20 more additional classrooms at the 

Dunn School (which is also located within the Desire Street Housing Project), 

in order to alleviate the temporarily overcrowded condition which exists in 

this area. The only reason that these 40 additional classrooms (which can 

accommodate 1400 youngsters, and thus take 2800 children off of a platoon 

system) were not constructed, was the fact that the State Bond and Tax Board 

did not, until several weeks ago, give permission to defendants to issue the 

bonds which the taxpayers of this community had previously authorized them 

to issue, 

The evidence adduced at the hearing further showed Your Honor that an 

additional reason for the overcrowded conditions complained of, was the in- 

crease in the Negro public school registration from 30,988 in 1951 to 

56,095 in 1961, or an increase during the ten year period of 25,107. At the 

same time, Negro resident births rose from 4,106 in 1944 to 8,051 in 1960. 

These figures are comparable to an increase in white enrollment in the pub- 

lic schools of this parish from 34,047 in 1951 to 38,217 in 1961 or a 10 

year increase of only 4,170. At the same time, white resident births in~ 

creased from 7,782 in 1944 to only 8,462 in 1960, 

At the same time, the Board's records for the school year 1960-61 show 

an in-migration of Negro educables in the lst, 2nd and 3rd grades alone of 

1,894, with a corresponding out-migration of white educables of 5,055. The 

situation is further compounded by the concentration of Negro educables in 



- Page 21 ~ 

Government Housing Projects. In 1960-61 there were 12,106 Negro children 

enrolled in the public schools who lived in five Public Housing Projects. 

This represents over 23% of the total Negro public school enrollment. In 

the Desire Street Housing Project alone (where 75% of plaintiff-intervenors 

live) there were 5,458 public school children who represent approximately 

10% of all of the Negro children in the Public School System. This concen- 

tration of educables requires the construction of new facilities, at a rate 

which the Board, with its financial limitations, has not been able to keep 

pace. 

During this period of rapidly expanding demand for facilities, the 

defendant Board made every effort to discharge its obligations to provide 

facilities for all of the children in this Parish. Two of its attempts to 

increase school millage were defeated; one on November 17, 1953 and another 

on November 4, 1958, Nevertheless, its millage was increased from 7 mills 

in 1948 to the 13 mills which it is authorized to levy today. Meantime, out 

of the last approximately Forty-Five Million ($45,000,000.00) Dollars spent 

for new construction, renovations and equipment in the public schools of 

this Parish, approximately Twenty-Seven Million ($27,000,000.00) Dollars or 

60% was spent in an effort to improve the facilities for colored pupils.3%/ 

Furthermore, the Board's five-year building program still proposes to 

spent a disproportionately large percentage of current new construction funds 

for the erection of schools to service the neighborhoods wherein the bulk of 

the plaintiff-intervenors herein live.33/ Although this building program 

was delayed for some two years, for the reasons hereinabove enumerated, on 

the same day the Board accepted bids for the sale of Ten Million °° 

($10,000,000.00) Dollars in School Bonds, it also advised its administrative 

staff to begin advertising for bids for the construction of six schools, 

four of which are designed to alleviate the neighborhood conditions complained 

of by plaintiff-intervenors.38/ Architectural contracts for these new 

schools were previously let, and plans and specifications have been completed 

and approved by the Board, and building contracts will be let in an orderly 

fashion every two weeks commencing April 3, 1962. As proof of the fact that 

the Board realizes and appreciates the seriousness of the overcrowded condi- 

tions at the Moton and Dunn Schools, the contract for the construction of 

additional classrooms at these two schools will be advertised first; and, as 

a matter of fact, the first advertisement for bids has already appeared in 



~ Page 22 - 

the local press on March 2, 1962. 

Does the above and foregoing indicate that the defendant Board is dis- 

criminating against the Negro pupils of this Parish? Or, does it not indi- 

cate that they are faced with innumerable obstacles and that the solution of 

their varied local problems requires time, so that they can be worked out and 

solved in a systematic and effective manner? 

The Supreme Court itself, in the Brown case, clearly, and quite prop- 

erly, stated that school authorities have the primary responsibility for elu- 

cidating, assessing and solving these problems. In deciding the instant 

motions, Your Honor must determine whether the action of the defendants 

herein constitutes good faith implementation of the governing constitutional 

principles. In fashioning your decree, you should be guided by equitable 

principles, which are characterized by a practical flexibility in adjusting 

and reconciling public and private needs. You may properly take into ac- 

count the public interest in the elimination of local obstacles in a system- 

atic and effective manner. You must, as you did, require defendants to make 

a prompt and reasonable start toward full compliance with the Court's May 17, 

1954 ruling. This the defendants have done. Now such a start has been made. 

Your Honor has authority to find that additional time is necessary to carry 

out the ruling in an effective manner. Of course, the burden rests upon the 

defendants to establish that such time is necessary in the public interest, 

and is consistent with good faith compliance at the earliest practicable date. 

To that end, those items which Your Honor may consider in arriving at 

this determination, are: 

1. Problems related to: 

(a) Administration. 

(b) Arising from the physical condition of the school 
plant. 

(¢) School Transportation System. 

(d) Personnel. 

(e) Revision of School Districts and Attendance 
Areas into compact units. 

2. The revision of local laws and regulations, which may 

be necessary in solving the above problems. 

3. The adequacy of plans to meet these problems and to 

effect a transition to a racially non~discriminatory 

school system. 



- Page 23 - 

It is respectfully submitted that the defendants herein have proven, 

in a crucible of fire, their good faith, and they have made a reasonable 

start toward full compliance. It is now their primary responsibility to 

elucidate, assess and solve the many local problems with which they are 

faced, It is of the utmost public interest that these vital problems be 

solved in a systematic and effective manner, without either destroying the 

excellence of the public school system of this Parish or, of taking the 

slightest chance of having those whose emotions have been most deeply stirred, 

taking steps which could lead to the complete abolition of public education 

in this State.3L/ 

During this transitional period, the Court is urged to allow the de- 

fendant Board to progress with ''deliberate speed.” 

The defendants are not here arguing that hostility to racial desegre- 

gation, or disagreement with the constitutional principles enunciated by the 

Supreme Court, or the violence and disorder which followed upon the actions 

of the Governor and legislature, are grounds for either suspending its plan 

for desegregation, or are the bases for the granting of time within which to 

fully comply. But, the defendant Board is predicating its defense herein 

upon the basic premise that it, in complete good faith, has initiated a 

reasonable start toward full compliance; and during the ensuing transitional 

period, it, and the public, need time to solve the many and varied local 

problems and obstacles which have presented themselves. It can not be 

seriously argued by plaintiffs that the Board has not carried the burden of 

proving that such time is essential in the public interest, and consistent 

with good faith compliance at the earliest practicable date. 

The defendant Board has shown the Court some of the problems which it 

is facing relative to administration, the physical condition of the school 

plant, personnel and the revision of school districts. In prior phases of 

this case, the Court has actively participated in the necessary revision of 

local laws and regulations. It was not until November 29, 1961, scarcely 

three months ago, that the Supreme Court of Louisiana recognized the uncon- 

stitutionality of Act 4 of the Third Extraordinary Session of 1960, and 

cleared the way for the resumption of the normal financial operations of the 

Board, The bonds, which will furnish the wherewithal for new construction, 

will not be delivered and the proceeds thereof received until April 5, 1962. 

These facts dramatically demonstrate the desparate need for additional time, 



~- Page 24 - 

and the constructive use to which it can be put, during this difficult period 

of transition. 

Furthermore, the Board has shown that it has a plan, which has been 

completely adequatz to meet the above problems. But, each year must stand 

on its own merits. That which was adequate, in November cf 1960, was found 

by the Board not tc be adequate less than a year later. But, the Board does 

need time to solve the many and varied local problems which have presented 

themselves, and to eliminate the numerous obstacles which must be overcome. 

Time to carefully consider the probable consequences of each step it takes. 

Time to weigh all facts and arguments presented. Then, after careful con- 

sideration, to take well-advised, slow, circumspect steps, each under the 

constant supervision of this Court, which will retain jurisdiction through- 

out this process. This is the deliberate speed demanded by the Supreme 

Court. 

Only in this fashion can the prophecy of Mr. Justice Frankfurter 

come to pass in this State, in our time: 

"By working together in a common effort, men of 
different minds and tempers, even if they do 
net reach agreement, acquire understanding, 39/ 
and, therefore, tolerance of their differences.'"22 

Respectfully Submitted, 

SAMUEL I. ROSENEERG 
Attorney for the Orleans Parish 
School Board 

747 National Bank of Commerce 

Building 
New Orleans 12, Louisiana 

Ja. 2-5128,. 

CERTIFICATE 

I certify that a copy of the above and foregoing Memorandum on behalf 
of the Orleans Parish School Board has been duly served on counsel for plain- 
tiffs and counsel for intervenors by depositing a copy of same in the United 
States Mail in a duly stamped envelope addressed to each, A. P. Tureaud, 
Ernest N. Morial, A. M. Trudeau at their address 1821 Orleans Avenue, New 
Orleans 16, Louisiana; and James M. Nabrit, III, Jack Greenberg, and 
Constance Baker Motley, 10 Columbus Circle, New York 19, New York. 

Samuel I. Rosenberg 
New Orleans, Louisiana, 

March 12, 1962. 



FOOTNOTES 

188 F. Supp. 916, affirmed 365 U.S. 569. 

House Concurrent Resolutions Nos. 2, 23 and 208. 
/ 

3/  gingelmenn vs. Davis, 240 La. 929, 125 So. (2d) 41k (1960) 

190 F. Supp. £61, affirmed 365 U.S. 569. 

Act No. L. 

Senate Concurrent Resolution No. 7. 

= 191 F. Supp. O71, affirmed U.S. 

Exhibit OPSB-10. 

= Exhibit P-5. 

10/ 
= Exhibit P-10. 

11/ ; ; 
— At the Frantz School today, approximately 150 white children are back at 

school, and the 1 colored child who entered the school in November, 1960, 

has been advanced to the 2nd grade in said school. At McDonogh No. 19 
the year-long boycott of 1960-1961 came to an end, and 15 white children 
re-enrolled and are attending classes with the three colored children, 
who are now in the 2nd grade, and the two colored children, who were 

admitted to the first grade this year. Of the other two desegregated 

schools, enrollment at Benjamin and McDonogh No. 11, is below normal; but 
at the other two schools, Wilson and Lusher, enrollment is virtually 

normal. . 

12/ 
— Exhibit P-6. 

13/ 349 U.S. 204, 75 S.Ct. 753, 99 L. Ed. 1083 (1955). 

14 / 
358 U.8.'1, 788. Cb. 101, {1958}. 

1 
15/ Carson vs. Warlick, 238 F. (24) 724 (4th Cir. 1956). 

16/ 
1e/ Adkins vs. School Board of Newport News, 148 F. Supp. 430, (D.C. E.D. Va. 

1957), affirmed 246 F. (2d) 325 (4th Cir. 1957). 

17 
x 138 F. Supp. 337 (U.S. D.C. E.D. Louisiana, 1957), affirmed 242 F. (24) 

156 {5th Civ. 1957). 

264 F. (2d) 945 (4th Cir. 1959). 
19/ 
wi P01 FP. (24) 131 (btn Cir. 1960). 

20/ 
278 7, (24) 72 {4th Cir. 1060}. 

2h 
-' 282 F. (2a) ¥713 {th Circuit 1960). 

00 / 
~~ 280 F. (24) 439 (4th Circuit 1961). 

23/ 
It should be noted that the organ of the Court in the Dodson case was 

Chief Judge Sobeloff, who was the Solicitor General of the United States 

when the Supreme Court considered and decided the Brown case. It was he 

who presented the Government's arguments to the Court in the original 

Brown opinion, and also when the Court received briefs and arguments on 

the question of implementing its decision. He, therefore, is in a 

position to understand and realize the significance of the Supreme Court's 

admonition to desegregate with all deliberate speed. 



Footnotes (Cont'd) 

2 
g/ For a history of early proceedings in this case, see 181 F. Supp. 504. 

After extensive litigation, on April 30, 1960, the District Court approved 
a transitional desegregation plan that was submitted by the Board (183 
F. Supp. 389). The Court of Appeal for the Oth Circuit concluded that 
the plan lacked specificity and objectivity and reversed the District 
Court's decision and remanded the case for further proceedings. (282 F. 
(2d) 256). The Board submitted a report on November 19, 1960 but the 

UT. District Court thought that it was insufficient after a hearing, and 

following an informal conference between court and counsel, the Board 
submitted a supplemental report on March 11, 1961. The Court after 
another hearing approved the supplemental report, 194 F. Supp. 112. 
(U.S. D.C. E.D. Ark. Western Division, May 12, 1961). 

The most recent opinion relative to Little Rock, which the writer of 
this memorandum has been able to locate, was handed down by the United 
States District Court for the Eastern District of Arkansas, Western 
Division, on September 9, 1961, and is reported in 6 Race Relations Law 
Reporter 682. 

Little Rock attacked the problem of desegregating its public schools in 
the inverse order of that followed in most other districts. In 1957, 9 

Negroes were assigned to white Senior High Schools. In 1958, all Senior 

High Schools in Little Rock were closed. In 1959, nine Negroes were 

assigned to white Senior High Schoeols, and in the year beginning 
September, 1960, 1l Negroes were assigned to white Senior High Schools. 
In 1961, the Board for the first time proposed to admit Negroes to pre- 

viously all-white Junior High Schools. 84 Negro pupils applied for 
admission to the 7th grade (Junior High School) and 2k were eventually 
admitted. Of 32 who applied to the 10th grade (the first year of Senior 
High School) in 1961, 16 were admitted. O8 others who had attended the 
white Senior High School the previous year were retained, making a total 

of 24 in the Senior High School. 

26/ 

21/ 
Borders vs. Rippey, 195 F. Supp. 732. 

Boson vs. Rippey, 285 F. (24) 43 (5th Circuit, Nov. 30, 1960 and Dec. 7, 
1960). This opinion traces the history of this litigation and shows that * 
the plaintiffs’ petition was initially dismissed by the District Court. 
When the Circuit Court reversed and remanded the case, and its action 
was affirmed by the United States Supreme Court, the District Court held 
a hearing in 1957 and again dismissed plaintiffs' petition. Again the 
Circuit Court reversed the District Court and remanded the case with 
directions. Whereupon the District Court then ordered immediate en masse 
desegregation of all of the public schools of Dallas. Again, the Court 
of Appeal reversed the District Court, with more specific directions to 
accord school authorities a reasonable further opportunity promptly to 
meet their primary responsibilities in the premises; and, if the plain- 

tiffs objected to the Board's plan, the District Court was directed to 

conduct a full hearing. (See, 250 F. (2d) 690). 

—/ 275 7. (24) 850. 

270 Fed. (2d) 209, 228-30, (6th Circuit 1959). 

162 F. Supp. 372 (U.8. D.C, N.D. Ala. S.D. 1958), affirmed 358 U.S. 101, 
79 8. Ct. 221, 3 L. Ea. (24) 1is5, 

Gibson vs. Board of Public Institutions, Dade Co. Florida, 272 Fed. (24) 
763 (5th Circuit ); and Mannings vs. Board of Public Educa- 
tion, 277 Fed. (2d) 370 {5th Circuit 1960). 

Exhibit P-3. 

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Exhibit OPSB-2. 

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Exhibit OPSB-3. 

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Exhibit OPSB~10. 

Exhibit OPSB-17. 



Footnotes (Cont'd) 

The fact should never be lost sight of that, if the State of Louisiana 
gets completely out of the field of Public Education, and if its 
legislature appropriates no funds for any public schools in the State, 
there is probably no authority in the law to compel the legislature to 
act. Although, the legislature, and the individual membérs thereof, may, 
and have been, restrained from taking unconstitutional actions, there 
is serious doubt that the legislature could be forced to appropriate 
funds for public education. As farfetched as this possibility may appear, 
it nonetheless persists as a disturbing possibility in the minds of your 
defendants. 

W
w
 

C
o
 
—
 

Lelong vs. Sutherland, 134 So. 24 627 (la. App. bth Cir. 1961); Cert. 
Den. November 29, 1961. 

8
 

iC
 

Cooper vs. Aaron, Supra.