Memo from Speas to Bilonis et al. Re: Moot Court Participation

    In the

Ittt&ft (ta rt nf Appeals
F ob the F ifth  Circuit

No. 17,556

B oard of Supervisors of L ouisiana State U niversity 
&  A gricultural & M echanical College, et al.,

Appellants,
•—versus—

W ilson F leming, Jr., et al.,

Appellees.

appeal from the united states district court for the 
EASTERN DISTRICT OF LOUISIANA, BATON ROUGE DIVISION

BRIEF ON BEHALF OF APPELLEES

A . P. T ureaud
A . M. T rudeau, Jr.
E rnest N. M orial

1821 Orleans Avenue 
New Orleans, La.

U. S impson T ate
4211 S. Oakland Avenue 
Dallas 15, Texas

Constance B aker M otley
T hurgood M arshall 

10 Columbus Circle 
Room 1790 
New York 19, N. Y.

Attorneys for Appellees



In the

U n i t e d  © m i r !  u f  A p j t e a L a

F or the F ifth  C ircuit 

No. 17,556

B oard of S upervisors of L ouisiana State U niversity 
&  A gricultural & Mechanical College, et al.,

Appellants,

—versus—

W ilson F leming, Jr., et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF LOUISIANA, BATON ROUGE DIVISION

BRIEF FOR APPELLEES

Statement o f  the Case

In addition to the facts set forth in appellants’ brief 
under their Statement of the Case, appellees bring to the 
attention of this court the following facts appearing in the 
record.

Appellees, who were plaintiffs below, are Negro citizens 
and residents of Louisiana who possess all of the requisite 
qualifications for admission to a branch of Louisiana State 
University now located in the City of New Orleans (R. 
34). Prior to instituting suit in the court below, and dur­
ing the period of registration for the school year 1958- 
1959, each appellee duly made application for admission



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to said institution, after complying with the rules and 
regulations governing admissions of students (R. 34). 
Their applications for admission were first rejected by 
a letter from appellee W. R. Burleson, registrar of the 
institution, which, after acknowledging receipt of the ap­
plications, stated as follows:

The policy of the Board of Supervisors of Louisiana 
State University and Agricultural and Mechanical Col­
lege as Administrators of the Louisiana State Uni­
versity in New Orleans, does not permit your admis­
sion (R. 34).

Thereafter, appellees asked for clarification of the word 
“policy” referred to in said letter. In reply thereto, ap­
pellees were advised by letter, again written by the regis­
trar, as follows:

In answer to your inquiries contained in your letter 
of June 13, 1958, please be advised that your applica­
tion for admission to the Undergraduate School of 
L. S. U. in New Orleans * * * was not accepted as 
Negroes are not admitted to said school under the laws 
of the State of Louisiana and the policy of the Board 
of Supervisors of Louisiana State University and Agri­
cultural and Mechanical College (R. 35, emphasis ours).

At the time appellants refused the admission of these 
appellees, white students were being accepted as students 
at the same institution (R. 35).

Appellees’ complaint was filed in the court below on 
July 29, 1958 (R. 2). On August 27, 1958 appellees filed 
a motion for preliminary injunction enjoining appellants 
from denying appellees and members of their class ad­
mission to the undergraduate classes (R. 15). On the next 
day, upon consideration of appellants’ motion for an addi­



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tional 45 days in which to file an answer, the court below 
entered an order granting appellants an additional 20 days 
in which to answer or otherwise move with respect to the 
complaint (B. 15). On the same date, the court below set 
September 3, 1958 as the date of hearing the motion for 
preliminary injunction (E. 17).

Thereafter, on September 3, 1958 the registrar, W. E. 
Burleson, filed an affidavit alleging that one of the plain­
tiffs, Jamesetta, Henley, was not entitled to admission be­
cause of the grades which she received while attending 
Dillard University (E. 17-18). An affidavit was also filed on 
September 3, 1958 by Homer L. Hitt, Dean of the insti­
tution, to the effect that none of the plaintiffs had appealed 
to him the ruling of the registrar denying his or her ad­
mission (E. 18-19). An affidavit was likewise filed on the 
same date by Albert L. Clary, Jr., registrar of Louisiana 
State University and Agricultural and Mechanical College 
to the effect that the registrar of the University in New 
Orleans is responsible to the Director of Student Services 
at Louisiana State University in New Orleans who, in turn, 
is responsible to the Dean of Louisiana State University 
in New Orleans; the Dean of Louisiana State University 
is responsible to the Dean of the University for academic 
matters, including admissions; and an applicant for ad­
mission to Louisiana State University in New Orleans 
has a right to appeal through the channels thus indicated 
(E. 19-20).

Affidavits of three plaintiffs were filed on September 3, 
1953 setting forth facts regarding residence, race, applica­
tion for admission, and rejection of application by the 
registrar (E. 20-27).

On September 3, 1958 when the motion for preliminary 
injunction came on for hearing, defendants also filed their 
opposition to the motion alleging that 1) the Board of



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Supervisors of Louisiana State University is immune from 
suit; 2) a single judge is without jurisdiction under 28 
United States Code 2281; 3) proper notice had not been 
given the Governor as required by 28 United States Code 
2284; and 4) the suit is premature in that plaintiffs have 
not exhausted administrative remedies. The Board of Su­
pervisors also filed a motion to dismiss on the ground that 
it is immune from suit (R. 28-31). The court below there­
upon continued the hearing on the motion for preliminary 
injunction until September 8,1958.

On September 8,1958 the first named plaintiff, Jamesetta 
Henley, moved the court below for an order withdrawing 
her name as a plaintiff in the action which was duly granted 
(R. 33). Wilson Fleming, Jr., was the second named plain­
tiff and, consequently, the style of this case was changed 
accordingly.

On the same date, the court below entered an order 
granting the motion for preliminary injunction, supported 
by its findings of fact and conclusions of law (R. 33-38). 
By this injunction, appellees were enjoined, pending the 
determination of the action, “ from refusing on account 
of race or color to admit plaintiffs, and any other Negro 
citizens of the State similarly qualified and situated, to 
the Undergraduate School of Louisiana State University 
in New Orleans” (R. 37-38).

Thereafter, on September 11, 1958, appellants filed their 
answer (R. 39-43). By their answer, they again claimed 
the immunity of the Board of Supervisors from suit (R. 
40). However, they admitted the allegations of the com­
plaint in Paragraph V, Sub-paragraph 9 (R. 8-9) to the 
effect that the registrar, W. R. Burleson, while acting in 
his official capacity, wrote to appellees that “ Negroes are 
not admitted to the said school under the laws of the State 
of Louisiana and the policy of the Board of Supervisors



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of Louisiana State University and Agricultural and Me­
chanical College” (R. 42).

On September 19, 1958 following the filing of their 
answer, defendants filed their Notice of Appeal to this 
court from the order of September 8, 1958 granting the 
preliminary injunction (R. 45).

Upon this appeal, appellants specify only two errors: 
first, that suit against the Board of Supervisors of Louisi­
ana State University and Agricultural and Mechanical 
College is prohibited by the 11th Amendment to the United 
States Constitution as the Board is an agency of the State 
of Louisiana, and second, that the court below could not 
entertain this suit since the plaintiffs had not exhausted 
administrative remedies available to them (Appellants’ 
Brief, p. 4).

A R G U M E N T

I.
Suit against the Board o f  Supervisors is not prohibited 

by the 11th Amendment, nor is the Board entitled to 
sovereign immunity, where the facts alleged or proved 
show that the laws or policy under which the Board acted 
is unconstitutional.

This court, in the case of Orleans Parish School Board 
v. Bush, 242 F. 2d 156 (1957), gave special consideration 
to the claim which has been repeatedly made by school 
officials of the State of Louisiana in school segregation 
cases that such officials are immune from suit under the 
doctrine of sovereign immunity and that suit against them 
is prohibited by the 11th Amendment to the Constitution 
of the United States. In that case this court concluded that 
the question had been foreclosed by the decision of the



6

Supreme Court of the United States in the School Segrega­
tion Cases where actions of the same type as this one 
were before that Court (at 160-161). However, because 
the state officials in that case so strongly urged upon this 
court their contention that that suit was in fact a suit 
brought by citizens of the State of Louisiana against the 
State, this court reviewed again, at great length, the theory 
applicable to cases of this kind (at 160-161).

As in the Bush case, this suit does not seek to compel 
state action. “ It seeks to prevent action by state officials 
which they are taking because of the requirements of a 
state constitution and laws challenged by the plaintiffs 
as being in violation of their rights under the Federal 
Constitution. If in fact the laws under which the Board 
here purports to act are invalid, then the Board is acting 
without authority from the State and the State is in no­
wise involved” (at 161). Here the complaint alleges, the 
answer admits, and the court below found as a fact that 
“Negroes are not admitted to the said school under the 
laws of the State of Louisiana and the policy of the Board 
of Supervisors of Louisiana State University and Agri­
cultural and Mechanical College” (R. 9, 42, 35).

That the laws and policy referred to are invalid and un­
constitutional is a proposition too well settled to require 
citation. And appellees do not understand appellants to 
claim their validity under the Constitution and laws of the 
United States. This case is, therefore, squarely within the 
holding of this court in the Bush case on the question of 
sovereign immunity and the effect of the Eleventh Amend­
ment in suits brought against state officers to enjoin un­
constitutional action.

However, appellants, without mentioning the Bush case, 
seek to distinguish the instant case on the ground that there 
is involved here a state corporation or agency as dis­



7

tinguished from a state officer or individual. Appellants 
properly concede at the outset of their argument that their 
alleged distinction has already been held to be without 
foundation in law by the Fourth Circuit in School Board 
of City of Charlottesville v. Allen, 240 F. 2d 59 (1956). 
In that case the Fourth Circuit said, as appellants point 
out,

If high officials of the state and of the federal gov­
ernment, * * * may be restrained and enjoined from 
unconstitutional action, we see no reason why a school 
board should be exempt from such suit merely because 
it has been given corporate powers. A  state can act 
only through agents; and whether the agent be an 
individual officer or a corporate agency, it ceases to 
represent the state when it attempts to use state power 
in violation of the Constitution and may be enjoined 
from such unconstitutional action (at 63).

Although the question was not raised in the School 
Segregation Cases, as appellants point out, the question 
has been raised in the United States Supreme Court and 
disposed of contrary to the contention of appellants.

In Sloan Shipyard Corp. v. United States Shipping 
Board Emergency Fleet Corporation, 258 U. S. 549, the 
Supreme Court squarely held that “ * * # it cannot matter 
that the agent is a corporation rather than a single man” 
(at 567). The Court then proceeded to give its reasoning 
therefor: “ The meaning of incorporation is that you have 
a person, and as a person one that presumably is subject 
to the general rules of law” (at 567).

In addition, as the Fourth Circuit also pointed out in the 
Charlottesville case, supra, although the question was not 
specifically raised in the School Segregation Cases, “ * * * 
it is not reasonable to suppose that the Supreme Court



8

would have directed injunctive relief against school boards 
acting as state agencies, if no such relief could be granted 
because of the provisions of the Eleventh Amendment to 
the Constitution”  (at 63).

II.
Administrative remedies need not be exhausted where 

there is a law or policy o f  excluding Negroes.

In the court below, appellants, by the affidavits of Homer 
L. Hitt, Dean of Louisiana State University at New Or­
leans, and Albert L. Clary, Jr., registrar of Louisiana 
State University and Agricultural and Mechanical College, 
sought to establish that there is a chain of command, in­
volving at least three persons, to whom appellants could 
have appealed the ruling of W. K. Burleson, the registrar 
of Louisiana State University at New Orleans. This chain 
of command did not include the Board of Supervisors, but 
if appellants are correct, then after having appealed to 
these three persons, logically, appellees would then be re­
quired to appeal a fourth time to the Board of Supervisors. 
However, despite appellants’ efforts to conjure up an al­
leged administrative remedy there is in fact no such “pre­
scribed” administrative remedy. Myers v. Bethlehem Ship­
building Corp., 303 U. S. 41, 51. If there were, appellants 
would have offered in evidence the rules and regulations 
governing such appeals.

But even if it could be said that there is a “prescribed” 
administrative remedy which appellees should have ex­
hausted prior to invoking jurisdiction of the court below, 
to require them to do so when “ Negroes are not admitted 
to said school under the laws of the State of Louisiana and 
the policy of the Board of Supervisors” would, as this court 
pointed out in the Bush case, supra, “be a vain and useless 
gesture, unworthy of a court of equity, # # # a travesty in



9

which this court will not participate” (at 162). See also, 
Gibson v. Board of Public Instruction of Dade Coirnty, 246 
F. 2d 913 (5th Cir., 1957); Holland v. Board of Public 
Instruction of Palm Beach County, 258 F. 2d 730 (5th Cir., 
1958); Kelley v. Board of Instruction of the City of Nash­
ville, 159 F. Supp. 272 (M. D. Tenn. 1958).

CONCLUSION

For the foregoing reasons, the order appealed from 
should be affirmed.

Respectfully submitted,

A. P. T ureaud
A. M. T rudeau, Jr.
E rnest N. M orial

1821 Orleans Avenue 
New Orleans, La.

U. S impson T ate
4211 S. Oakland Avenue 
Dallas 15, Texas

Constance B aker M otley
T hurgood M arshall 

10 Columbus Circle 
Room 1790 
New York 19, N. Y.

Attorneys for Appellees



10

Certificate of Service

I hereby certify that on this 4th day of March, 1959, I 
served copies of the foregoing Brief for Appellees on the 
following counsel for Appellants: Jack P. F. Gremillion, 
Attorney General, State of Louisiana, Baton Rouge, Loui­
siana and William P. Schuler, Asst. Attorney General, State 
of Louisiana, 301 Loyola Avenue, New Orleans, Louisiana, 
by mailing a copy of each to them, via United States mail, 
postage prepaid.

Constance B aker M otley 
Attorney for Appellees



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