Bush v. Orleans Parish School Board

• Decision Date: 28 August 1962
• Docket Number: No. 19720.,19720.
• Citation: 308 F.2d 491
• Parties: Earl Benjamin BUSH et al., Appellants, v. ORLEANS PARISH SCHOOL BOARD et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

308 F.2d 491 (1962)

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

No. 19720.

United States Court of Appeals Fifth Circuit.

August 6, 1962.

On Petition for Rehearing August 28, 1962.

A. P. Tureaud, New Orleans, La., Jack Greenberg, Constance Baker Motley, New York City, for appellants.

Samuel I. Rosenberg, Alvin J. Liska, City Atty., New Orleans, La., for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The Orleans Parish School Board maintains a dual school system in the City of New Orleans. A dual school system is a compulsory biracial system in which certain schools are designated for Negro students and staffed by Negro personnel and certain other schools are designated for white students and staffed by white personnel. Each school draws students from its own attendance area. The city, therefore, is divided into geographical districts (zones) for Negro schools that are separate but often overlap the districts for white schools.

May 16, 1960, the District Court for the Eastern District of Louisiana ordered desegregation of public schools in New Orleans on a stepladder plan of desegregating a grade a year commencing with the first grade for the 1960-61 term. Two years later, the district court modified the 1960 Plan by an order entered April 9, 1962, and by a second order entered May 29, 1962. The plaintiffs and the Orleans Parish School Board appeal from the court's second order. We approve the order except as modified in this opinion and the order of this Court.

I.

This case is Exhibit "A" for "deliberate speed". H goes back to November 1951 when certain Negro school children, through their parents, petitioned the Orleans Parish School Board to desegregate the New Orleans public schools.¹ September 4, 1952, they filed a school desegregation suit against the Board. At that time there were five school segregation cases pending in the United States Supreme Court. The plaintiffs and the School Board agreed to suspend litigation until the Supreme Court should have decided the constitutional issues in the School Segregation Cases. The Supreme Court heard argument on these cases in December 1952, put them back on the docket in 1953 and, after the cases were reargued, announced its decision May 17, 1954, in Brown v. Board of Education.²

Six years ago, on February 15, 1956, the district court entered a preliminary injunction ordering the School Board to desegregate the New Orleans schools "with all deliberate speed".³ Up to that time the Board's opposition to desegregation had been dictated for the most part by longstanding customs and laws long on the statute books. After the injunction was issued the Louisiana legislature enacted a massive body of laws intended to preserve segregation in the schools. For over three years the Orleans Parish School Board seemed hopelessly bogged down in a morass of confusing, harassing legislation. Finally, when it was apparent that the Board could not take independent action, the district court, July 15, 1959, ordered a desegregation plan filed March 1, 1960.⁴ Later, the court extended the deadline to May 16, 1960. In April 1960, the Orleans Parish Court of Appeals ruled that under Act 319 of 1956 the legislature, not the Board, had the right to reclassify schools classified by race. Caught again in the middle between Louisiana courts and federal courts, the Board was empty-handed on May 16, 1960. As a result, on that date, having received no plan from the Board, the district court ordered the New Orleans schools desegregated under its own plan of desegregating a year at a time according to a step-ladder program, beginning September 1960. The order reads:

"IT IS ORDERED that beginning with the opening of schools in September 1960, all public schools in the City of New Orleans shall be desegregated in accordance with the following plan:

"A. All children entering the first grade may attend either the formerly all white public school nearest their homes, or the formerly all negro public school nearest their homes, at their option.

"B. Children may be transferred from one school to another, provided such transfers are not based on considerations of race."

July 29, 1960, the State of Louisiana, through its Attorney General, obtained an injunction in the state courts restraining the Board from desegregating public schools in New Orleans. August 17, the Governor of Louisiana, acting under a 1960 law, took over control of public schools in New Orleans. August 27, 1960, a three-judge district court struck down these actions, declared unconstitutional seven Louisiana segregation laws, ordered the Orleans Parish School Board to comply with the order to desegregate, and restrained the Governor and any other state official from interfering with the operation of public schools in New Orleans.⁵ August 29 the Board conferred with the district judge to whom the case had been assigned and informed him that the Board, no longer pinned down by restrictive statutes, was at last able to comply fully with his order. The Board asked for a short stay. The district judge postponed the commencement of the Plan to November 14, 1960. In this order he observed that:

"* * * the Court was impressed with the sincerity and good faith of the board, each member of which personally appeared, with the exception of member, Emile A. Wagner, Jr., who was absent from the city at the time * * *"

In public session the Board adopted the grade-a-year Plan and announced its intention to comply with the court's orders.

The Louisiana legislature did not remain idle. The Governor of the State called five consecutive extra sessions of the legislature (unprecedented in Louisiana) for the purpose of preventing the Board from proceeding with the desegregation program. Among other actions, the legislature seized the funds of the Orleans Parish School Board, forbade banks to lend money to the Board, removed as fiscal agent for the state the Bank which had honored payroll checks issued by the School Board, ordered a school holiday on November 14, addressed out of office four of the five members of the Board, later repealed the Act creating the Board, then on two occasions created a new School Board for Orleans Parish, still later addressed out of office the Superintendent of Schools in Orleans Parish, and dismissed the Board's attorney. The federal courts declared these and a large bundle of related acts unconstitutional.⁶

One hundred and thirty-four Negro children applied for admission to "white" public schools in New Orleans. November 14, 1960, four little Negro girls were admitted to two white schools. Small as this may seem in terms of effective desegregation, this was the first time since the founding of the public school system in New Orleans in 1877 that Negro children have attended classes with white children. The effect of this profound change in social customs produced demonstrations, picketing, stone-throwing, and turmoil that continued for months; all white parents withdrew their children from one of the schools and all but a handful of parents withdrew their children from the other school. These are facts of life difficult for the ordinary layman to ignore, notwithstanding the instructions in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, that community hostility to desegregation cannot be considered as a factor in determining what constitutes "deliberate speed". Nevertheless, the Board stood steadfast. The school year ended much more quietly than it began.

In September 1961 eight Negro children, chosen from 66 applicants, were admitted to four schools formerly considered "white" schools, making a total of twelve Negro children in the first and second grades in six white schools. There were comparatively no disturbances at the desegregated schools during the 1961-62 school year.

On February 14, 1962, 101 additional Negro pupils moved to intervene and for a preliminary injunction. They alleged that the pupil assignment procedures denied Negro pupils in the first grade the right to attend non-segregated schools "at their option", as provided in the 1960 Plan. The complaint also alleged that pupil placement procedures operated to limit desegregation to a few pupils, while maintaining the established segregation pattern, and that the Negro schools were overcrowded. (There are 37,845 white students in 64 schools and 55,820 Negro students in 53 schools in Orleans Parish.) After a full hearing, March 5, the district court filed an opinion, April 3, D.C., 204 F.Supp. 568, holding that the Board had not complied with the May 16, 1960, order; that the Board continued to maintain a dual system and used pupil placement procedures discriminatorily. The court ruled:

"An analysis of the test program demonstrates that the Board, instead of allowing children entering the first grade to make an election as to the schools they would attend, assigned all children to the racially segregated schools in their residential areas. Then, after being so assigned, each child wishing to exercise his right to elect pursuant to the court\'s plan of desegregation was subjected to the testing program. No children other than first grade were required to take the tests. * * * This failure to test all pupils is the constitutional vice in the Board\'s testing program. However valid a pupil placement act may be on its face, it may not be selectively applied. Moreover, where a school system is segregated, there is no constitutional basis whatever for using a pupil placement law. A pupil placement law may only be validly applied in an integrated school system, and then only where no consideration is based on race."

In line with this ruling, April 9 the Court entered a temporary injunction forbidding the Board to apply the Louisiana Pupil Placement Act to any pupil as long as the Board operates a dual school system based on racial segregation.⁷

In addition,...