Davis v. East Baton Rouge Parish School Board, Civ. A. No. 1662.

• Decision Date: 08 May 1967
• Docket Number: Civ. A. No. 1662.
• Citation: 269 F. Supp. 60
• Parties: Clifford Eugene DAVIS, Jr., a minor, by his father and next friend Clifford Eugene Davis, Sr., et al. v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
• Court: U.S. District Court — Eastern District of Louisiana

269 F. Supp. 60

Clifford Eugene DAVIS, Jr., a minor, by his father and next friend Clifford Eugene Davis, Sr., et al. v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.

Civ. A. No. 1662.

United States District Court E. D. Louisiana, Baton Rouge Division.

May 8, 1967.

A. P. Tureaud, New Orleans, La., and Johnnie A. Jones, Baton Rouge, La., for plaintiff.

Sargent Pitcher, Dist. Atty., Parish of East Baton Rouge, La., John F. Ward, Jr., Asst. Dist. Atty., Parish of East Baton Rouge, La., Jack P. F. Gremillion, Atty. Gen., State of La., Baton Rouge, La., for defendants.

WEST, District Judge.

Once again this case concerning the desegregation of the public schools in the Parish of East Baton Rouge, Louisiana, is before the Court. On December 29, 1966, the United States Fifth Circuit Court of Appeals, by a two to one decision, handed down a most unusual decision—unusual because of its glaring inconsistencies, ambiguity, and sheer unconstitutionality. I refer to the case of United States v. Jefferson County Board of Education et al., 372 F.2d 836, with which six other cases were consolidated for hearing, and hereinafter referred to as the Jefferson case. The East Baton Rouge Parish School case was not involved in that decision. But by some stroke of magic, with no motion ever having been filed for consolidation, the Baton Rouge case suddenly appeared consolidated with the other seven cases when the matter came up for "rehearing" before the Court setting en banc. The en banc Court, by an eight to four decision, for all practical purposes upheld the original opinion, 380 F.2d 385. The dissenting opinions filed by Judges Gewin, Bell and Coleman clearly and meticulously point out the sheer absurdity and absolute unconstitutionality of the majority opinion. The majority opinion held that "The clock has ticked the last tick for tokenism and delay in the name of `deliberate speed'." But what it fails to state is that the same clock by which that Court is apparently working may well have "ticked the last tick" for true constitutional government in these United States. As Judge Gewin so aptly stated in his dissent, the opinion of the majority "has no substantial legal ancestors." There can, of course, be no such thing as true constitutional government in the United States if the Court is legally permitted, as that Court has done, to declare that the Constitution means one thing in seventeen states, and something else in the remaining thirty-three states. There are judges who have publicly stated their belief that the United States Supreme Court should, in fact, function as a "super legislative body" rather than as a court in the usual sense of the word. The majority opinion in the Jefferson case strongly indicates that there are those who believe that this should also be the function of the Courts of Appeals. When, in his dissent, Judge Gewin states that this decision "bends and twists the Constitution" he exercises remarkable restraint. The fact is that the decision not only "bends and twists" the Constitution, it breaks and destroys it. It also defies and ignores the very Acts of Congress which it professes to be interpreting and enforcing. It completely ignores the constitutional requirement of separation of powers between the Executive, Legislative, and Judicial branches of the Government when it undertakes to legislate as it has done in this case. And when it decrees that school boards (in the Southern and Border states only) must take affirmative action to "integrate students, faculties, facilities and activities" it either attempts to repeal, or it ignores completely the provisions of the Civil Rights Act of 1964 which specifically state:

"`Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but `desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance." 42 U.S.C.A. § 2000c(b).

"* * * provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards." 42 U.S.C.A. § 2000c-6(a) (2).

The Court neatly sidesteps these specific impediments to the legality of its decision by simply stating:

"* * * the equitable powers of the courts exist independently of the Civil Rights Act of 1964."

The utter ridiculousness of the opinion as it attempts to distinguish between the law as it applies to de jure segregation and the law as it applies to de facto segregation is readily apparent. The Court concludes that its opinion states the law only as it applies to the seventeen Southern and Border states—the states in which it says segregation is of the "de jure" type rather than of the "de facto" kind. It states that its opinion does not attempt to state the law as to the remaining thirty-three states where, it says, segregation is of the "de facto" type. It then proceeds to attempt to legislate an end to all segregation in the schools of these seventeen states, without regard to whether or not the segregation remaining after the implementation of desegregation orders is really de facto segregation. It even goes to the extent of ordering the local school boards to close certain schools under certain conditions, and instructing them how to choose locations for new schools. It is hard to reconcile their assertion that their opinion only applies to certain states, and not to others, when they say in another part of their opinion that "What was true of an earlier Athens and an earlier Rome is true today: In Georgia, for example, there should not be one law for Athens and another law for Rome." Should there be one law for Louisiana and another for New York, and one law for Mississippi and another for Illinois?

But assuming by the use of legal doubletalk we could somehow conclude that under the law as it presently stands it is only de jure segregation that is unconstitutional, the question arises as to what is the status of the law in these seventeen states with regard to areas where segregation is maintained by choice on a de facto basis? Is the majority of the Court so oblivious of the facts as to believe that de facto segregation does not exist in areas of the South as well as in the North? Indeed, are they so oblivious of the facts as to believe that de facto segregation, that is, segregation by choice, does not exist in this very City of Baton Rouge? The majority opinion states that "The only school desegregation plan that meets constitutional standards is one that works." Suppose the school desegregation plan already in operation in a given area is working to the extent that all students do, in fact, have a free and unfettered choice of the school which he will attend, and suppose the situation arises where it cannot be fairly said that there any longer exists "de jure" segregation but that segregation does continue to exist on a neighborhood, de facto, free choice basis. In such an event, does such an area then join the Northern states against whom this decision is not intended to operate, or does the operation of the statute then become enlarged to cover such de facto segregation simply because the area involved is located in one of the seventeen Southern or Border states? By what criteria is it to be decided when de jure segregation ends and de facto segregation begins? Are these questions to be determined by the method used by the Department of Health, Education and Welfare in applying their so-called guidelines, or will the school boards be given an evidentiary hearing in a court of law to determine such an issue? It must be remembered that the school boards were not given such an evidentiary hearing in the present case on the question of whether or not the H.E.W. guidelines should be applied to the schools involved. That issue was never presented to the District Courts in which these cases originated, the Courts in which, according to law, litigation is supposed to originate. The Court of Appeals, sua sponte, injected this issue into the cases for the first time while they were supposedly "on appeal" before it. In view of this procedure, it would seem logical to conclude that it is now the intention of the Court of Appeals to take over the function of the District Courts insofar as these school desegregation matters are concerned. Apparently insofar, at least, as cases involving desegregation of schools are concerned, litigation may now start at the appellate level. I respectfully express my doubt of the wisdom of this procedure and agree with Judge Gewin when he says "* * * due process and sound judicial administration require, at the very least, an evidentiary hearing * * *. It is unthinkable that matters that so vitally affect this phase of the national welfare should be decided in such summary fashion." Judge Bell put it another way in his dissent when he said that this decision of the majority amounts to an "adjudication without any semblance of due process of law. It is an unprecedented procedure and a shocking departure from even rudimentary due process."

The Jefferson decision is apparently the final step in the Fifth Circuit Court of Appeals' determination to bring about not, as the law clearly requires, an end to forced segregation in public schools, but instead a complete, forced, total integration of the races in every school. It seems to matter not that the Congress has specifically decreed otherwise, and it seems to matter not that such a result has never been required or suggested under the Constitution or laws of the United States as interpreted by the highest court of the land. As Judge Gewin says "* * * All...