Orleans Parish School Board v. Bush

• Decision Date: 05 April 1957
• Docket Number: No. 16190.,16190.
• Citation: 242 F.2d 156
• Parties: ORLEANS PARISH SCHOOL BOARD, Appellant, v. Earl Benjamin BUSH et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 156 (1957)

ORLEANS PARISH SCHOOL BOARD, Appellant, v. Earl Benjamin BUSH et al., Appellees.

No. 16190.

United States Court of Appeals Fifth Circuit.

March 1, 1957.

Rehearing Denied April 5, 1957.

Gerard A. Rault, New Orleans, La., W. Scott Wilkinson, Shreveport, La., for appellant.

Robert L. Carter, New York City, U. Simpson Tate, Dallas, Tex., A. P. Tureaud, A. M. Trudeau, Jr., New Orleans, La., Thurgood Marshall, New York City, for appellees.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal in an action on behalf of certain New Orleans Negro school children from a judgment of the District Court for the Eastern District of Louisiana enjoining appellant "from requiring and permitting segregation of the races in any school under their supervision, from and after such time as may be necessary to make arrangements for admission of children to such schools on a racially non-discriminatory basis with all deliberate speed as required by the decision of the Supreme Court in Brown v. Board of Education of Topeka, 349 U. S. 294 75 S.Ct. 753, 99 L.Ed. 1083."

The principal grounds of appellant's attack on the validity of this order are: (1) This was a suit against the State of Louisiana and is prohibited by the XIth Amendment to the Constitution; (2) The complaint failed to state a claim on which relief could be granted; (3) The court erred in holding that the provisions of Art. XII, Sec. 1 of the Louisiana Constitution-LSA requiring separate schools for white and colored children and that all of Louisiana Act 555 and Section 1 of 556 of 1954 LSA-R.S. 17:81.1, 17:331-17:334, requiring segregation and assignment of pupils respectively in public schools were invalid; (4) The proof on behalf of plaintiffs and countershowing by defendant did not warrant the issuance of a temporary injunction. These points as well as subsidiary questions will be discussed after a brief statement of the factual background.

On November 12, 1951, appellees petitioned the School Board "to end at once the practice and custom of discriminating against Negro students solely on account of their race and color and admit these Negro children and all others similarly situated to the public schools of Orleans Parish which have heretofore and are now restricted to the enrollment of white children." This petition was denied by official action of the Board on November 26, 1951.¹ On February 19, 1952, an appeal was taken to the State Board of Education; no reply having been received, appellees again, on August 14th, requested action on their petition; on August 27th a reply was received over the signature of the Secretary of the State Board, which while not categorically denying the petition stated: "The Board feels that many of the items included are wholly within the jurisdiction of the Board."² On September 5, 1952, the original complaint in this action was filed. It alleged great disparities between the physical plant and the content of the curricula of Negro and white schools, and also alleged discrimination because of segregation per se. It alleged that the Board was pursuing a policy and custom of maintaining separate schools for white and Negro children under the provisions of Art. XII, Sec. 1 of the Louisiana Constitution. It sought a declaratory judgment on the questions, among others, (a) "whether the policy, custom, practice and usage of defendants * * * in denying on account of race or color to infant plaintiffs and others similarly situated * * * educational opportunities, advantages and facilities * * * equal to the educational opportunities, advantages and facilities afforded and available to white children * * * is unconstitutional and void as being a denial of the equal protection of the laws guaranteed under the Fourteenth Amendment to the Constitution of the United States;" (b) "whether Article XII Sec. 1 of the Constitution of 1921 of the State of Louisiana which prohibits infant plaintiffs from attending the only public schools of Orleans Parish where educational opportunities, advantages and facilities equal to those afforded all other qualified pupils * * * are available and force them to attend secondary schools in Orleans Parish solely because of race and color is unconstitutional and void as a violation of the Fourteenth Amendment of the Constitution of the United States." It also prayed a judgment declaring that the separate schools provision of Article XII, Sec. 1 of the Louisiana Constitution is a denial of the equal protection clause of the Fourteenth Amendment and is therefore unconstitutional and void, and for a permanent injunction enjoining defendant Board from following such provision as being in contravention of rights guaranteed under the United States Constitution.

By stipulation proceedings on this complaint were suspended on account of the pendency of the school Segregation cases³ in the Supreme Court of the United States.

After the first opinion in the Brown case the State Legislature of Louisiana proposed and the people adopted an amendment to Art. XII, Sec. 1 of the State Constitution which had already provided, in effect, that all public elementary and secondary schools should be operated separately for white and colored children by adding that "This provision is made in the exercise of the state police power to promote and protect public health, morals, better education and the peace and good order in the State, and not because of race. The Legislature shall enact laws to enforce the state police power in this regard." The Legislature then promptly enacted Acts 1954, No. 555 and 556. Section 1 of 555 merely repeated the constitutional requirement of separate schools. Section 2, 3 and 4 provide for penalties to be imposed on local boards and an individual failing to observe the requirements as to separate schools in Section 1. Section 5 is a separability clause.⁴ Act 556, adopted at the same time, is the pupil assignment statute. It provides for assignment of each pupil each year by the parish superintendent to a particular school, and, without providing any standards other than those of Act 555 for separation of the races, provides for an appeal to the local board and then to the State Board and thereafter to the state district court.⁵

Following the enactment of these laws, appellees petitioned the school board to take immediate steps to reorganize the schools under its jurisdiction on a nondiscriminatory basis. No reply was made to this or to a subsequent petition, but the board engaged counsel to "defend, as special attorney for the Board, both in the trial court and in the Courts of Appeal" the action then pending.⁶ Soon thereafter appellees filed a first amended complaint setting up the provisions of the amended constitution and the newly enacted statutes, a prayer for declaratory relief holding them invalid and renewing their prayer for preliminary and permanent injunction against the enforcement by the board of the provisions of the new laws.

The defendant board filed its motion to dismiss and the state of Louisiana prayed the right to intervene solely for the purpose of filing a motion to dismiss the suit as being one against the State. No order appears to have been entered allowing this intervention and the State is not appearing as a party on this appeal, although a brief has been tendered on behalf of the State as amicus curiae. Its petition for leave to file is hereby granted and its brief has been considered by the Court.

Nature of the Suit

We consider first whether there is any merit in appellant's contention that this is in fact a suit brought by citizens of the State of Louisiana against the State. Of course such a suit is prohibited by the principle of sovereign immunity and by analogy to the Eleventh Amendment to the Constitution of the United States. Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.

It would seem hardly worth our considering this contention in light of the fact that all of the School Segregation Cases were actions of the same type as the one before us (suits against a state official or board operating under State authority) were it not for the fact that both the appellant and the Attorney General of the State urge it so strongly upon us. The burden of their argument is that this is a suit to compel state action, which under a long line of cases, including Great Northern Life Insurance Company v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121, and Ford Motor Company v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389, falls within the prohibition whether nominally against the State or against state officials. But 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 nowise involved. That a federal court can entertain a suit where such a situation is alleged has long been recognized. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 453, 52 L.Ed. 714, the Supreme Court said in such a case as this:

"* * * It is contended that the complainants do not complain and they care nothing about any action which Mr. Young might take or bring as an ordinary individual, but that he was complained of as an officer, to whose discretion is confided the use of the name of the state of Minnesota so far as litigation is concerned, and that when or how he shall use it is a matter resting in his discretion and cannot be controlled by any court.

"The answer to all this is the same as made in every case where an official claims to be acting under the authority of the state. The act to be enforced is alleged to be unconstitutional; and

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