Gooden v. Mississippi State University, No. 73-2108.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 499 F.2d 441
• Parties: Bennie Stone GOODEN, Jr., etc., et al., Plaintiffs-Appellees-Cross Appellants, v. MISSISSIPPI STATE UNIVERSITY, etc., et al., Defendants-Appellants-Cross Appellees.
• Docket Number: No. 73-2108.
• Decision Date: 16 October 1974

499 F.2d 441 (1974)

Bennie Stone GOODEN, Jr., etc., et al., Plaintiffs-Appellees-Cross Appellants,
v.
MISSISSIPPI STATE UNIVERSITY, etc., et al., Defendants-Appellants-Cross Appellees.

No. 73-2108.

United States Court of Appeals, Fifth Circuit.

August 19, 1974.

Rehearing and Rehearing Denied October 16, 1974.

A. F. Summer, Atty. Gen., Wm. A. Allain, First Asst. Atty. Gen., Ed Davis Noble, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants-appellants.

Melvyn R. Leventhal, Jackson, Miss., Jack Greenberg, New York City, for plaintiffs-appellees.

Before BELL, DYER and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 16, 1974.

PER CURIAM:

Plaintiffs, three black students attending public school in Clarksdale, Mississippi, sued on behalf of a class comprised of "students throughout the State of Mississippi who are aggrieved by the policies and practices of the defendants complained of herein." The complaint,

499 F.2d 442

filed February 14, 1972, alleged that "numerous private racially segregated schools and academies," as members of the Academy Athletic Conference, had been granted permission by Mississippi State University to use the University's gymnasium and facilities to hold basketball games on February 21-26, 1972. It was further asserted that this action provided state aid and encouragement to such member schools and thereby impeded the achievement of racially integrated public schools. Preliminary injunctive relief was sought to stop Mississippi State from allowing the tournament, and permanent injunctive relief was requested denying the Academy Athletic Conference the use of all facilities controlled by the Board of Trustees of Institutions of Higher Learning, which oversees the eight public four-year collegiate institutions in the state. The defendants were the president of Mississippi State University and the Trustees of the Institutions of Higher Learning. They answered admitting that permission had been given for the use of Mississippi State's facilities on February 21-26, but alleged that on the same day the complaint had been filed the Academy Athletic Conference withdrew its request, and the games had not been played on state property. A hearing consisting solely of statements and arguments of counsel, was held in February of the following year. The district judge made no findings of fact but issued this injunction on April 4, 1973

Defendant, Board of Trustees of Institutions of Higher Learning, is permanently enjoined from allowing or permitting gymnasiums, athletic fields, and other school facilities of all colleges and universities subject to its control or jurisdiction to be used for the holding of contests, activities and programs sponsored by Academy Athletic Conference (also known as Academy Activities Commission of the Mississippi Private School Association), or its member schools, or any other private school which does not enroll black students; provided, however, that this shall not preclude any student, or group of students attending any private school from access to such facilities under defendants\' control when such facilities are open to the general public on a nonexclusive, communal basis. Gilmore v. City of Montgomery, 473 F.2d 832 (CA 5, 1973) 1973.

Both parties appeal. Defendants seek to vacate the injunction. Plaintiffs protest the court's failure to award them attorneys fees. Defendants protest the issuance of the injunction as an imprudent exercise of the court's equitable power because (1) none of the circumstances present in Gilmore was shown to be present in this case, (2) no threat of similar requests or approvals in the future was shown, and (3) at the time of issuance the cause was moot. Plaintiffs contend that the court's action must be judged in light of its knowledge of the existence of a widespread network of private schools that pose a threat to the success of public school integration — knowledge which was gained from taking...