Board of Supervisors of La. St. U. & A. & M. Col. v. Ludley

• Decision Date: 28 March 1958
• Docket Number: No. 16854-16856.,16854-16856.
• Citation: 252 F.2d 372
• Parties: BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY & AGRICULTURAL & MECHANICAL COLLEGE et al., Appellants, v. Arnease LUDLEY et al., Appellees. LOUISIANA STATE BOARD OF EDUCATION et al., Appellants, v. Alma LARK et al., Appellees. LOUISIANA STATE BOARD OF EDUCATION et al., Appellants, v. Jack BAILEY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 372 (1958)

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY & AGRICULTURAL & MECHANICAL COLLEGE et al., Appellants, v. Arnease LUDLEY et al., Appellees.

LOUISIANA STATE BOARD OF EDUCATION et al., Appellants, v. Alma LARK et al., Appellees.

LOUISIANA STATE BOARD OF EDUCATION et al., Appellants, v. Jack BAILEY et al., Appellees.

Nos. 16854-16856.

United States Court of Appeals Fifth Circuit.

February 13, 1958.

Rehearing Denied March 28, 1958.

Jack P. F. Gremillion, Atty. Gen., George M. Ponder, 1st Asst. Atty. Gen., L. W. Brooks, Baton Rouge, La., William P. Schuler, New Orleans, La., William C. Bradley, Sp. Counsel for Atty. Gen., Baton Rouge, La., W. Scott Wilkinson, Shreveport, La., for appellants.

A. P. Tureaud, New Orleans, La., Robert L. Carter, Thurgood Marshall, Jack Greenberg and Irma Robbins Feder, New York City, of counsel, for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

These three appeals are from orders granting a temporary injunction forbidding the defendants, Louisiana State Board of Education and Board of Supervisors of Louisiana State University, to deny to any qualified applicant registration in three state institutions of higher education "because of failure of the applicant to present the certificate of eligibility," provided in a newly enacted Louisiana statute. The statute forbade, under penalty of a $500 fine for the officer ignoring its provision, any such institution to permit any student to register without filing a certificate "addressed to the particular institution sought to be entered" attesting to his eligibility and good moral character, such certificate to be signed by the superintendent of education of the Parish, County or municipality wherein said applicant graduated from high school, and by the principal of the high school from which he graduated."¹ It will be noted that the order of the trial court was for the benefit of all applicants for admission, thus giving recognition to the right of the individual plaintiffs to represent others in these class suits.

The trial court, after having granted temporary restraining orders under which the named plaintiffs were admitted to enrollment, consolidated the three cases for hearing on the interlocutory injunction. As they all present the same basic questions we shall treat them together, except to say that as to the intervening plaintiffs in No. 16,854, the court correctly decided that they could become parties to the suit.

The grounds for appeal here are: (1) These are suits against the State and may not be maintained in the federal court; (2) The suits attack state statutes as being unconstitutional, and therefore they should have been tried by a three-judge federal court rather than by a district court of one judge; (3) The Louisiana statute requiring the certificate of eligibility and character is not unconstitutional; (4) The evidence used to determine legislative intent was inadmissible; (5) The injunction should not have been granted without bond.

The able trial judges² dealt capably with the merits of the issue of constitutionality of the law. Their opinion is published at 150 F.Supp. 900. The views there expressed are adopted by us and need elaboration on one point only. This statute reposes in two named officials, a high school principal and a parish school superintendent the unfettered and uncontrolled power to grant or deny to a high school graduate the right to enter a college or university in Louisiana. It sets up no standards and expresses no outline of qualifications which are to guide these officials in the granting or withholding of the students' rights to go to a state supported college or university. In Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, 165, we said:

"Attempts by statute to give any official the power to assign students to schools arbitrarily according to whim or caprice are legally impermissible."

How much less permissible is it for a state by statute to say that a student must obtain the certificate of two named officials to entitle him to enter a tax supported educational institution where no objective standard is set by which the arbitrariness of the judgment of such officials in denying a certificate can be tested? The very absence of such standards condemns the statute as providing, by clearest implication, as the only standard: that of whether a Negro student seeks a certificate to a Negro college or seeks one to a white college. How more patently could this standard be expressed than the requirement that the certificate be not a certificate attesting to the eligibility and good character of the student generally, but that it be a certificate "addressed to the particular institution sought to be entered." The sophistry that produces such a patently void device stands out in stark outline in the pathetic effort of one high school principal to answer the request of a Negro student, the named plaintiff here, for a certificate of eligibility to enter Louisiana State University.

"Miss Arnease Ludley 208 West McKinley Street Baton Rouge, Louisiana

"Dear Miss Ludley:

"Your request for a Certificate of Eligibility to attend Louisiana State University is hereby acknowledged. In reply I do not have a form of the Certificate of Eligibility addressed to that institution. If you should get a form and send it to me, I could not sign it, because under a state law I would lose my job for signing the certificate.

"I assure you that my refusal to sign the certificate is not intended to cast any unfavorable reflection against your character. I just can not take the risk of losing my job.

"Sincerely yours "(Signed) Arthur D. Smith Principal"

Here a Negro school principal felt that he could not afford to sign a certificate of good character for one of his graduates because it was addressed to the State University, a "white" school, but conscious of the danger of such refusal to the reputation of the student, he felt constrained to tell her that his refusal to give her a certificate of good character was not to be taken as reflecting on her character at all. So, too, was the standard of race or color recognized by a white parish school superintendent who wrote:

"Mildred M. Meyers Post Office Box 245 Hammond, La.

"Dear Student:

"In reply to your letter of January 17, I wish to say that neither Professor Davis nor I are permitted by law to sign certificates of eligibility for you to go to Louisiana State University, or one of the teachers colleges for white students.

"We are permitted, however, to sign certificates for you to attend Grambling or Southern College. I feel sure that you are familiar with the provisions of this state law. If you wish us to sign certificates for either Grambling or Southern College we shall be glad to do so.

"With best wishes, I am "Yours very truly "(Signed) J. F. Corkern Superintendent"

Here, in plainest terms, the parish school superintendent says that the student's eligibility and moral character are good enough for a Negro college but, by arbitrary classification, are not good enough for the white State university. Whatever other standards may be prescribed as a basis for the obtaining of a certificate of eligibility and good character, race or color may not be used. This has been finally decided in Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and related cases. As we said in Orleans Parish Board of Education, in discussing the absence of any ascertainable standards for the action of the school officials there: "Such a statute is unconstitutional either because it has on its face the effect of depriving appellees of their liberty or property without due process of law (the failure to provide reasonable standard for testing the arbitrariness of an official act in assigning pupils to schools) or having implied as its only basis for assignments the prohibited standard of race." The same fault condemns this law. Either it attempts to give designated officials the power to exclude students from all state supported colleges without establishing objective standards which they can seek to satisfy or it implies the standard (which was the one recognized by the two authors of the above quoted letters) of race or color. The requirement in LSA-Rev.St. 17:2131-2135, that a student have a certificate of eligibility and good moral character addressed to a particular institution is in conflict with the Fourteenth Amendment to the Federal Constitution and must fall.

This...