Bush v. Orleans Parish School Board

• Decision Date: 30 November 1960
• Docket Number: 10566.,10329,Civ. A. No. 3630
• Citation: 188 F. Supp. 916
• Parties: Earl Benjamin BUSH et al., Plaintiffs, v. ORLEANS PARISH SCHOOL BOARD et al., Defendants. Harry K. WILLIAMS et al., Plaintiffs, v. Jimmie H. DAVIS, Governor of the State of Louisiana et al., Defendants. UNITED STATES of America, Plaintiff, v. STATE OF LOUISIANA et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

188 F. Supp. 916

Earl Benjamin BUSH et al., Plaintiffs, v. ORLEANS PARISH SCHOOL BOARD et al., Defendants.

Harry K. WILLIAMS et al., Plaintiffs, v. Jimmie H. DAVIS, Governor of the State of Louisiana et al., Defendants.

UNITED STATES of America, Plaintiff, v. STATE OF LOUISIANA et al., Defendants.

Civ. A. Nos. 3630, 10329, 10566.

United States District Court E. D. Louisiana, New Orleans Division.

November 30, 1960

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Thurgood Marshall, New York City, A. P. Tureaud, A. M. Trudeau, Jr., Ernest M. Morial, New Orleans, La., for plaintiffs, Earl Benjamin Bush and others.

Charles E. Richards, New Orleans, La., for plaintiffs, Harry K. Williams and others.

M. Hepburn Many, U. S. Atty., Prim B. Smith, Jr., Asst. U. S. Atty., New Orleans, La., Gerald P. Choppin, Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff, the United States.

Samuel I. Rosenberg, Peter H. Beer, William Campbell, Jr., George Denegre, William B. Dreux, James H. Drury, Lucien M. Gex, Jr., William J. Guste, Jr., Victor H. Hess, Jr., W. Ford Reese, John E. Hurley, Ralph N. Jackson, Walter J. Landry, Joseph McCloskey, J. Thomas Nelson, John P. Nelson, Jr., Ashton Phelps, Robert G. Polack, Ivor A. Trapolin, Beryl E. Wolfson, New Orleans, La., for Orleans Parish School Bd., Bd. Members Lloyd Rittiner, Louis G. Riecke, Matthew R. Sutherland and Theodore H. Shepherd, Jr., and Dr. James F. Redmond, Superintendent of Orleans Parish Schools.

Jack P. F. Gremillion, Louisiana Atty. Gen., Michael E. Culligan, John E. Jackson, Jr., William P. Schuler, Weldon Cousins and Jack Brittain, Asst. Attys. Gen., Richard Dowling, Orleans Parish Dist. Atty., New Orleans, La., for Jack P. F. Gremillion as Louisiana Atty. Gen., A. P. Tugwell as State Treasurer, Shelby M. Jackson as State Superintendent of Ed., Members of the State Bd. of Ed., Colonel Murphy J. Roden as State Director of Public Safety, Major General Raymond H. Flemming as State Adjutant General, Roy H. Theriot as State Comptroller, Bryan Clemmons as Sheriff of East Baton Rouge Parish, John Christian as Mayor of Baton Rouge, and Shirley S. Arrighi as Chief of the Baton Rouge Police Dept.

W. Scott Wilkinson, Shreveport, La., Thompson L. Clarke, Gibson Tucker, Jr., Russell J. Schonekas, New Orleans, La., for Edward LeBreton and Seven Others Constituting the Committee of Eight of the Legislature of Louisiana, and for Emile A. Wagner, Jr., Member of the Orleans Parish School Bd.

Alvin J. Liska, New Orleans City Attorney, Joseph Hurndon, Asst. City Atty., Ernest L. Salatich, Asst. City Atty., David MacHauer, Asst. City Atty., New Orleans, La., for deLesseps S. Morrison as Mayor of New Orleans and Joseph I. Giarrusso as Superintendent of the New Orleans Police Department.

Before RIVES, Circuit Judge, and CHRISTENBERRY and WRIGHT, District Judges.

Called into extraordinary session for November 4, 1960, just ten days before the day fixed by this court for the partial desegregation of the New Orleans public schools,¹ the Louisiana Legislature promptly enacted 25 measures² designed to halt, or at least forestall, the implementation of the Orleans Parish School Board's announced proposal to admit five Negro girls of first grade age to formerly all-white schools. The first of these, Act 2 of the First Extraordinary Session of 1960, LSA-R.S. 49:801 et seq.,³ is the so-called "interposition" statute by which Louisiana declares that it will not recognize the Supreme Court's decision in Brown v. Board of Education, supra, or the orders of this court issued pursuant to the mandate of that case. Insofar as it provides criminal penalties against federal judges and United States marshals who render or carry out such decisions, the Government, by separate suit consolidated here for hearing, seeks an injunction against the Act. The next seven Acts, Nos. 3 through 9, merely repeal statutes earlier ruled on by this court and enjoined as unconstitutional.⁴

The remaining seventeen Acts, nummered 10 through 14 and 16 through 27, are here assailed on constitutional grounds and a temporary injunction against their enforcement is prayed for by the plaintiffs, parents of white school children, in the Williams case. Among these are measures purporting to abolish the Orleans Parish School Board and transfer its function to the Legislature. On November 10, 1960, restraining orders were directed to the appropriate state officers enjoining them from enforcing the provisions of all but one of the statutes in suit pending hearing before this court. Nevertheless, apparently still considering itself the administrator of the New Orleans public schools, the Louisiana Legislature has continued to act in that capacity, issuing its directives by means of concurrent resolutions. House Concurrent Resolutions Nos. 17, 18 and 19. On November 13th, when the enforcement of these resolutions was also restrained on motion of the School Board, the Legislature retaliated by addressing all but one member of the Board out of office. House Concurrent Resolution No. 23. This action by the Legislature also was the subject of an immediate temporary restraining order. As cross-claimant in the Bush case, the original school case filed by parents of Negro children, the School Board now asks for a temporary injunction against these most recent measures. Finally, the court has before it a motion by the School Board to vacate or stay its order fixing November 14, 1960, as the date for the partial desegregation of the local schools.

Jurisdiction

In view of the fact that one of the actions involved has been pending for more than eight years and that several judgments have already been rendered in the proceeding both here and on appeal,⁵ it would seem somewhat late in the day to raise jurisdictional issues. But, in view of the elaborate arguments pressed upon us we have re-examined the matter.

Pretermitting the question of jurisdiction under 28 U.S.C. § 1331, it is, of course, plain that jurisdiction of the claims in the Bush and Williams cases is vested by the provisions of 28 U.S.C. § 1343(3) and of the suit of the United States by 28 U.S.C. § 1345, and that, since in all three matters an injunction is sought against the enforcement of state laws by officers of the state, a court of three judges was properly convened under 28 U.S.C. § 2281.

Insofar as it is denied that the measures under attack work a "deprivaion * * * of any right * * * secured by the Constitution of the United States," that is a question addressed to the merits. For jurisdictional purposes it suffices that a substantial claim of deprivation has been made. Likewise, the "interposition" defense cannot affect the initial jurisdiction of the court, for it must at least take jurisdiction to determine whether the state act purporting to insulate Louisiana from the force of federal law in the field of public education is constitutionally valid. If the statute is not valid, obviously it can have no effect on the court's jurisdiction. The Eleventh Amendment argument, made again here, has already been fully answered on a prior appeal in the Bush case. See 242 F.2d 156. Of course, the Eleventh Amendment has no application to the suit of the United States.

Finally, there is no merit in the claim of "legislative immunity" put forward on behalf of the committee of the Legislature and its members who are sought to be enjoined from enforcing the measures which grant them control of the New Orleans public schools. The argument is specious. There is no effort to restrain the Louisiana Legislature as a whole, or any individual legislator, in the performance of a legislative function. It is only insofar as the lawmakers purport to act as administrators of the local schools that they, as well as all others concerned, are sought to be restrained from implementing measures which are alleged to violate the Constitution. Having found a statute unconstitutional, it is elementary that a court has power to enjoin all those charged with its execution. Normally, these are officers of the executive branch, but when the legislature itself seeks to act as executor of its own laws, then, quite obviously, it is no longer legislating and is no more immune from process than the administrative officials it supersedes. As Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170, 5 U.S. 137, 170, 2 L.Ed. 60: "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing an injunction is to be determined."

Interposition

Except for an appropriation measure to provide for the cost of the special session, the very first statute enacted by the Louisiana Legislature at this Extraordinary Session was the interposition act. That was appropriate because it is this declaration which sets the tone and gives substance to all the subsequent legislation. For the most part, the measures that followed merely implement the resolve announced in the interposition act to "maintain racially separate public school facilities * * * when such facilities are in the best interest of their citizens," notwithstanding "the decisions of the Federal District Courts in the State of Louisiana, prohibiting the maintenance of separate schools for whites and negroes and ordering said schools to be racially integrated," which decisions, being "based solely and entirely on the the pronouncements of Brown v. Topeka Board of Education," are "null, void and of no effect as to the State of Louisiana." Significantly, the Attorney General, appearing for the State and most of its officers, rested his sole defense on this act. Without question, the nub of the controversy is in the declaration of interposition. If it succeeds, there is no occasion to look further, for the state is then free to do as it will in the field of public education. On the other hand, should it fail, nothing can...