Bush v. Orleans Parish School Board
Decision Date | 15 February 1956 |
Docket Number | Civ. A. No. 3630. |
Citation | 138 F. Supp. 337 |
Parties | Earl Benjamin BUSH et al., Plaintiffs, v. ORLEANS PARISH SCHOOL BOARD et al., Defendants. |
Court | U.S. District Court — Eastern District of Louisiana |
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A. P. Tureaud, New Orleans, La., Robert L. Carter, New York City, A. M. Trudeau, Jr., New Orleans, La., Thurgood Marshall, New York City, for plaintiffs.
Browne & Rault, Gerard A. Rault, New Orleans, La., W. Scott Wilkinson, Shreveport, La., Fred S. LeBlanc, Baton Rouge, La., L. H. Perez, New Orleans, La., for defendants.
This action in equity1 is brought in behalf of minor Negro plaintiffs, and all Negroes similarly situated,2 seeking a declaratory judgment3 and injunctive relief against the defendants who maintain and operate, pursuant to state statute,4 the public schools of the Parish of Orleans, Louisiana. Before the court at this time is the application for a temporary injunction.
The public schools of the City of New Orleans are segregated, that is, there are separate schools for white and Negro pupils. Plaintiffs allege that this segregation deprives them of equal protection of the law under the Fourteenth Amendment to the Constitution of the United States, and that under Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the defendants should be restrained from continuing this practice. In addition to certain preliminary defenses, defendants contend that pursuant to Article 12, § 1 of the Constitution of Louisiana, LSA-Const., and Louisiana Acts 555 and 556 of 1954, LSA-R.S. 17:331 et seq., 17:81.1, and note, all enacted subsequent to the decision of the Supreme Court in Brown,5 the public schools of New Orleans are operated on a segregated basis as an exercise of the police power of the state and, therefore, the decision of the Supreme Court in Brown outlawing segregation on the basis of race, is not dispositive of the issue here. This contention was considered and rejected by this court, sitting with three judges, in an opinion in this case this day rendered, D.C., 138 F.Supp. 336. That opinion is incorporated herein by reference. There remains for disposition then only the preliminary defenses.
In their first preliminary defense, the defendants say that this action is in effect a suit against the State of Louisiana, which has not consented to be sued, and therefore, this court is without jurisdiction. But a suit against officers or agents of a state acting illegally is not a suit against the state.6 The Brown case itself was brought against the Board of Education of Topeka, Kansas, just as the suit here is brought against the state board charged by statute with the administration of public schools. In addition, practically every one of the multitude of school cases which have been litigated through the courts and before the Supreme Court has been brought against state agencies administering the schools. Certainly if there were any lack of jurisdiction, some court along the line, including the Supreme Court, in at least one of the cases would have noticed it, as courts are required to do although the issue is not raised. Moreover, the state statute creating the defendant Board here gives it the right to sue and be sued. LSA-R.S. 17:51.
Defendants also maintain that the amended complaint should be stricken7 because it is in the nature of a supplemental complaint and no order of the court was obtained before it was filed. They also make the point that in the amended complaint, James F. Redmond, Superintendent of the Orleans Parish Schools, is made a defendant as successor to O. Perry Walker, Acting Superintendent named defendant in the original complaint, and that the amended complaint was not filed within six months of the time Redmond took office. This point is well taken and the action against the defendant Redmond must be dismissed without prejudice to institution of a new and similar action. Rule 25(d), Fed.R.Civ.P. The objection to the balance of the amended complaint, however, is highly technical in nature, and even if well taken, would not result in a dismissal of the action, but only in the giving to the plaintiffs time to amend. Rule 15(a), Fed.R.Civ.P. It need not be disposed of at this time.
Defendants also move to dismiss on the ground that no justiciable controversy is presented by the pleadings. This motion is without merit. The complaint plainly states that plaintiffs are being deprived of their constitutional rights by being required by the defendants to attend segregated schools, and that they have petitioned the defendant Board in vain to comply with the ruling of the Supreme Court in Brown v. Board of Education of Topeka, supra. The defendants admit that they are maintaining segregation in the public schools under their supervision pursuant to the state statutes and the article of the Constitution of Louisiana in suit. If this issue does not present a justiciable controversy, it is difficult to conceive of one.
Finally, the defendants contend that the plaintiffs have not exhausted their administrative remedies under Louisiana Act 556 of 1954 and that, consequently, this action must be dismissed. Act 556 of 1954 was part of the legislative plan, enacted subsequent to the Supreme Court's decision in Brown v. Board of Education of Topeka, supra, to avoid the effect of that decision in order to retain segregation in the public schools of the state. Article 12, § 1, of the Louisiana Constitution, passed in 1954, makes segregation through the exercise of police power part of the constitutional law of the state. Act 555 of 1954 implements that constitutional provision by providing that "All public elementary and secondary schools in the state of Louisiana shall be operated separately for white and colored children" and Act 556 of 1954 details the means by which segregation is to be achieved. It provides that "Each parish superintendent of schools, throughout this state, shall, each year, determine the particular public school within each parish to be attended by each school child applying for admission to public schools," and that no school child shall be entitled to enter a public school unless assigned in accordance with the provisions of the Act. The Act goes on further to provide for a hearing before the school superintendent and the board if there is dissatisfaction with the school assignment of any particular child.8 For the reasons stated in the opinion of this court sitting with three judges rendered this day, the legislative plan for maintaining segregation in the public schools of Louisiana is invalid. Since the administrative remedy outlined in Act 556 is part of the plan, it is invalid on its face and may be disregarded. Yarnell v. Hillsborough Packing Co., 5 Cir., 70 F.2d 435, 92 A.L.R. 1475; 42 Am.Jur., Public Administrative Law § 200. Should Act 556 be considered alone and not part of the over-all legislative plan, then it is invalid as an unlawful delegation of legislative authority for the reason that no standards on which the superintendent may base his assignment of children are included therein. 42 Am.Jur., Public Administrative Law §§ 42, 43, 44, 45. The only standard for assignment given in the plan is in Act 555 which provides for segregation of the races, which is, of course, invalid under Brown.
As a practical matter, plaintiffs here have exhausted their administrative remedies. They have petitioned the Board...
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