Bush v. Orleans Parish School Board

Citation205 F. Supp. 893
Decision Date23 May 1962
Docket NumberCiv. A. No. 3630.
PartiesEarl Benjamin BUSH et al., Plaintiffs, v. ORLEANS PARISH SCHOOL BOARD et al., Defendants, Connie Reed, a minor, by Gerald Rener, her guardian and next friend, et al., Plaintiffs-Intervenors.
CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)

A. M. Trudeau, A. P. Tureaud, New Orleans, La., Jack Greenberg, New York City, Ernest N. Morial, New Orleans, La., James Nabrit, III, New York City, for plaintiffs.

William P. Schuler, New Orleans, La., George Ponder, Baton Rouge, La., for Wade O. Martin, Jr., A. P. Tugwell, Shelby M. Jackson, State Board of Education and Individual Members thereof, etc., Colonel Roden, Major General Flemming, and Roy H. Theriot.

Alvin J. Liska, City Atty., for Mayor of New Orleans.

Samuel I. Rosenberg, New Orleans, La., for Orleans Parish School Board.

ELLIS, District Judge.

Defendant, Orleans Parish School Board, moves for a new trial of the issues decided by the April 9, 1962, order1 of this Court, 204 F.Supp. 568 expanding the order of May 16, 1960, to include desegregation of the first six grades of defendant's schools and enjoining the use of the Louisiana Pupil Placement Law2 in defendant's schools so long as defendant maintains a dual school system based on race. Defendant assigns various errors of fact and law in the April 9 order. There is no serious contention in defendant's motion or in its argument before the Court that proper disposition of this motion necessitates the taking of new testimony.3 In the main defendant challenges the ultimate determinations of fact and law made by this Court on the prior record. A full and extensive trial with adequate briefing was given on first hearing and this Court can find no reason for reopening the hearing.

However, a Rule 594 motion for new trial may result in alteration of the findings and judgment without taking new testimony.5 Moreover, this Court as presently constituted is competent to consider this motion and direct whatever relief or alteration it deems necessary.6 The peculiar circumstances of this case, necessitating periodic full trials, the constant supervision of the Court,7 and the ever-present balancing of individual and public interests8 demand that this Court be able to examine what it must supervise and adjust according to the law and its allowable discretion.

Defendant's first assignment of error is that this Court as previously constituted erred in finding that the separate school facilities provided for white and negro children in Orleans Parish were unequal. Therefore, defendant concludes, expanded desegregation based on such finding is erroneous.9 The proposition presents the serious question of whether the existence of separate but equal facilities is an allowable consideration in granting delay of desegregation under the "all deliberate speed" test of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. In the second Brown decision the Supreme Court set down the allowable limits of delay.10 Among the allowable consideration were "problems related to administration, arising from the physical condition of the school plant, the school transportation system, (and) personnel." The implication is clear that where present facilities were incapable of immediate integration because of consequent overcrowding, or where sudden shifting of present pupil allotment would overtax personnel, a school board would be allowed time to work out a plan of physical equalization "on a non-racial basis." However, there is nothing to suggest that a school board could constitutionally continue separate but equal facilities under the umbrella of the "deliberate speed" rule when it is admitted that negroes are living relatively near white schools which are below capacity. It should be noted that the condition of the Orleans Parish Schools is virtually the same as the condition of the schools in the cases which came before the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The Supreme Court was unequivocal in its expression: "We conclude that in the field of public education the doctrine of `separate but equal' has no place." Brown v. Board of Education, supra at 495, 74 S.Ct. at 692. The Fifth Circuit in the infancy of desegregation, held that existing separate but equal facilities were not grounds for dismissal of a desegregation suit for prematurity.11 Defendants do not direct the Court's attention to any case in which separate but equal facilities were an allowable consideration for delay under the "all deliberate speed" mandate, and we can find none. It is not within the power of this Court to perpetuate a repudiated constitutional doctrine by imposing it as a check rein on a superceding mandate of the Supreme Court.

The Board's second challenge is that it has been complying with the Brown mandate by making a prompt and reasonable start towards desegregation. The Board alleges good faith compliance with the Brown order and concludes that the Board, not this Court, is the one to make plans to effectuate desegregation. A brief history of the law and the history of the case will illuminate the proposition. In the second Brown decision the Supreme Court stated that "* * * the (district) courts will require that the (school boards) make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once 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 (school boards) to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date."12 (Emphasis supplied). And further: "(The District Courts) will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system."13 Subsequently in Cooper v. Aaron, 358 U.S. 1, 7, 78 S.Ct. 1401, 3 L.Ed.2d 5, the Court ordered that "* * * (A) District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities 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." And finally, "State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system."14 There can be little doubt that the original conception of the Supreme Court was that desegregation would be implemented by the school boards through plans devised by the boards and supervised by the District Courts.15 The history of desegregation in New Orleans proves that this was not to be the case here.

The implementing decision in Brown was handed down on May 31, 1955. On February 15, 1956, the Orleans Parish School Board was ordered to desegregate with all deliberate speed.16 When no independent action was taken by the Board, this Court, on July 15, 1959, ordered the Board to file a plan of desegregation by May 16, 1960. When the Board failed to do that, this Court ordered the desegregation under its own plan on May 16, 1960. On August 27, 1960, a three-judge court ordered that the May 16, 1960, order be implemented.17

The facts, as they develop, show that the Board, instead of implementing the Court's plan, by allowing each child entering first grade to choose the school nearest his home, at his option, proceeded to assign all white children to white schools and all negro children to negro schools and allowing some negroes to transfer to previously all white schools after processing under the Louisiana Pupil Placement Law and such additional plans as the Board adopted.18 Furthermore, the Board indicated at the hearing that it did not intend to file any desegregation plan with the Court in its foreseeable future.

It is an irresistable conclusion that the Board has never actually complied with any order of this Court (except as hereinafter shown by recent board action), nor had it ever entered into compliance with the Brown mandate as originally conceived. The Board seeks to excuse itself by referring to the efforts of the Louisiana Legislature to deter desegregation. The Board says that it was occupied with freeing itself from "massive resistance" legislation. While the circumstances may have been more extreme, the Little Rock School Board, faced with virtual civil war, likewise pleaded its good faith efforts at compliance and asked for more time to test Arkansas' brand of massive resistance in the courts. The Supreme Court stated and disposed of the issue as follows:

"We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions."19

While good faith is commendable, it is not a legal position.20 This in no way seeks to impugn the Orleans Parish School Board which has provided such able leadership in times and places where leadership has been a scarcity. This discussion seeks only to illustrate where the duty and power to formulate plans for desegregation has, by law, come to rest. Within the duty to desegregate and to apply the rule of "all deliberate speed" it is the obligation of this Court to order a specific plan of integration which must be adhered to by the Board.21 Since it has not been the lot of this case to proceed as the Supreme Court envisioned it would, then it must...

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  • Butterworth v. Dempsey
    • United States
    • U.S. District Court — District of Connecticut
    • March 26, 1964
    ...the district courts have formulated, and ordered enforced, plans for the desegregation of public schools. In Bush v. Orleans Parish School Board, 205 F. Supp. 893 (E.D.La.1962), for example, the court "It is the obligation of this Court to order a specific plan of integration which must be ......
  • Beer v. United States
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    • U.S. District Court — District of Columbia
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    ...F.Supp. 182 (E.D.La.), aff'd, 367 U.S. 907, 81 S.Ct. 1926, 6 L.Ed.2d 1250 (1961); 204 F.Supp. 568 (E.D.La. 1962); new trial denied, 205 F.Supp. 893 (E.D.La.), modified, 308 F.2d 491 (5th Cir. 265 See Bynum v. Schiro, 219 F.Supp. 204 (E.D.La.1963). 266 See Fazzio Real Estate Co. v. Adams, 39......
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    ...1926, 6 L.Ed.2d 1250 (1961), Gremillion v. United States, 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.2d 75 (1961); 204 F.Supp. 568 (1962); 205 F.Supp. 893 (1962), aff'd in part and rev'd in part, 308 F.2d 491 (1962); 230 F.Supp. 509 52 Of the 99 court-approved freedom of choice plans in this circuit......
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    ...actions with respect to the return of teachers from maternity leave. On October 11, 1967, in the case of Earl Benjamin Bush v. Orleans Parish School Board, 205 F.Supp. 893, the district court for the Eastern District of Louisiana issued an order mandating desegregation of students and facul......
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