Lemon v. Bossier Parish School Board, Civ. A. No. 10687.

• Decision Date: 13 April 1965
• Docket Number: Civ. A. No. 10687.
• Citation: 240 F. Supp. 709
• Parties: Ura Bernard LEMON, Sandra Lemon, Brenda Lemon, William H. Lemon, Jr., Tony Lemon, Infants, by their parents and next friends, William H. Lemon and Mrs. Nettie J. Lemon, et al., v. The BOSSIER PARISH SCHOOL BOARD and Emmett Cope, Superintendent of Schools. The United States of America, Intervenor.
• Court: U.S. District Court — Western District of Louisiana

240 F. Supp. 709

Ura Bernard LEMON, Sandra Lemon, Brenda Lemon, William H. Lemon, Jr., Tony Lemon, Infants, by their parents and next friends, William H. Lemon and Mrs. Nettie J. Lemon, et al., v. The BOSSIER PARISH SCHOOL BOARD and Emmett Cope, Superintendent of Schools.

The United States of America, Intervenor.

Civ. A. No. 10687.

United States District Court W. D. Louisiana, Shreveport Division.

April 13, 1965.

COPYRIGHT MATERIAL OMITTED

Jesse N. Stone, Jr., Shreveport, La., Norman C. Amaker, Jack Greenberg, and John Walker, New York City, for plaintiffs.

J. Bennett Johnston, Jr., Johnston & Johnston, Shreveport, La., Louis H. Padgett, Jr., Dist. Atty. for the 26th Judicial Dist., Bossier City, La., Jack P. F. Gremillion, Atty. Gen. of the State of Louisiana, Baton Rouge, La., William P. Schuler, Asst. Atty. Gen., of Louisiana, Baton Rouge, La., for defendants.

Nicholas de B. Katzenbach, Atty. Gen., Burke Marshall, Asst. Atty. Gen., St. John Barrett, Atty., U. S. Dept. of Justice, Washington, D. C., Edward L. Shaheen, U. S. Atty., Edward V. Boagni, Asst. U. S. Atty., Shreveport, La., for intervenor.

BEN C. DAWKINS, Jr., Chief Judge.

Here the parents of eight Negro children, suing on behalf of these children and others similarly situated, seek a prohibitory injunction restraining the Bossier Parish School Board and its Superintendent, Emmett Cope, from: (1) denying minor plaintiffs admittance to white schools; (2) operating a bi-racial school system and assigning students to schools with regard to race; (3) maintaining dual school zones or attendance area lines based on race or color; (4) employing teachers and other school personnel on the basis of their race or color; (5) approving budgets, policies and construction programs in the furtherance of a bi-racial school system. They pray that this relief be granted in its entirety by the end of the 1965-66 school year.

No dispute exists as to the facts, purely legal questions being presented.

The Government seeks to intervene in the action under the authority of Section 902 of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000h-2).¹ Following a hearing upon the motions to intervene and for preliminary injunction plaintiffs moved for a summary judgment, and defendants moved to dismiss for failure to state a claim. Arguments were heard on all motions.

Plaintiffs are Negro children of persons in military service stationed at Barksdale Air Force Base, a United States defense establishment situated within Bossier Parish, Louisiana, and all reside on the base. It is agreed that all the children have been considered eligible to attend Bossier Parish public schools, and all presently are attending all-Negro schools in that Parish. They allege that they have been denied admittance to white schools after due application made, although there are white schools nearer to their residence than the schools they presently attend. They allege their applications were denied solely because of their race and the policy, custom and practice of defendants in maintaining segregated schools.

Primarily, defendants' motion to dismiss is based upon the contention that plaintiffs have no standing to sue due to their lack of residence in Bossier Parish. In a well-written brief counsel for defendants point out that the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.) As bedrock for their argument defendants rely on Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964) in which the Supreme Court held that the United States acquired and exercises exclusive jurisdiction over Barksdale Air Force Base.

They thus urge that since plaintiffs reside on Barksdale under the exclusive jurisdiction of the United States, they are not "within the jurisdiction" of Bossier Parish; hence that they do not fall within the ambit of the Fourteenth Amendment's equal protection clause. They further contend that due to their lack of residence in Bossier Parish plaintiffs have no right to attend Bossier schools. They claim that plaintiffs are merely permitted to attend schools in Bossier and that such permission may be withdrawn at any time.² They argue that since plaintiffs claim to represent a class of persons made up of all Negroes who reside in Bossier Parish and who are qualified or eligible to attend Bossier public schools, plaintiffs cannot maintain this class action because they do not reside in Bossier Parish and thus are not members of the class they purport and seek to represent.

Plaintiffs rely on Randall v. Sumter School District Number 2, Sumter, South Carolina, 232 F.Supp. 786 (E.D.S.C. 1964). There the court permitted minor plaintiffs, all of whom resided on Shaw Air Force Base, to maintain a suit to desegregate the public schools of Sumter County. Randall involved facts identical to those presented here, except that the issue presently raised by defendants apparently was not raised in that case.

Defendants contend that Randall differs from the present case since there the county had agreed by contract with the United States to provide public school education for the "federal children." See United States v. Sumter County School District No. 2, 232 F.Supp. 945 (E.D. S.C. 1964).

After oral arguments here plaintiffs submitted requests for defendants to admit the existence of a contract between the Bossier Parish School Board and the United States by which the school board agreed to furnish education to federal children. Plaintiffs also asked that defendants admit the payments of funds under such contract. Defendants denied the existence of any such contract and denied that any funds received by them from the United States were received thereunder.

The Government has filed the affidavit of the Assistant Commissioner and Director, Division of School Assistance, Office of Education, of the Department of Health, Education and Welfare, who is custodian of the official records showing payments made to defendants under 20 U.S.C.A. §§ 236-244 and 20 U.S.C.A. §§ 631-645. This affidavit shows that defendants received from the United States for school construction under 20 U.S.C.A. §§ 631-645 more than $1,860,000 between 1951 and 1964. No funds have been received under the latter sections since March 10, 1964.

It is to be pointedly noted, however, that some of these funds were expended upon construction of the school attended by six of the eight minor plaintiffs at the present time, and some of the funds were expended upon construction of the schools to which admittance is sought by seven of the eight plaintiffs, since these schools are nearer to their homes than the all-Negro schools they now attend.

In accordance with 20 U.S.C.A. § 636 the applications for these construction funds contained several "assurances," among which was an assurance substantially the same as the following set forth in the application for the last construction funds received by the board:³

"4. The Applicant's School Board's school facilities will be available to the children for whose education contributions are provided in Public Law 815, as amended, on the same terms, in accordance with the laws of the State in which Applicant is situated, as they are available to other children in Applicant's school district." (Emphasis added.)

Both this Court, and the Court of Appeals for the Fifth Circuit, have recognized that by this provision defendants did not contract intentionally to provide desegregated schools for federal children. See United States v. Bossier Parish School Board, 220 F.Supp. 243 (W.D.La. 1963), aff'd per curiam 336 F.2d 197 (5 Cir. 1964); United States v. Madison County Board of Education, 326 F.2d 237 (5 Cir. 1964). Nonetheless, these assurances do constitute a contractual agreement by defendants to provide education for federal children on the same terms as they provide education to other children in the school district, in accordance with the laws of the State.

All Louisiana laws providing for segregation in public schools were declared unconstitutional in Orleans Parish School Board v. Bush, 242 F.2d 156 (5 Cir. 1957) cert. denied, 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436 (see also Bush v. Orleans Parish School Board, 188 F.Supp. 916 (E.D.La.1960), aff'd per curiam 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806). These Louisiana laws subsequently were repealed. See La.Acts 1960, 1st Ex.Sess., Nos. 3-9 and La.Acts 1962, No. 128, § 1. We find no Louisiana law presently in effect which requires the school boards of this State to maintain segregated schools.

It is not contended that defendants could defend successfully a suit by a Negro resident of Bossier Parish to desegregate these same schools, because of the Supreme Court's ruling in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and its myriad progeny. It necessarily follows that under the laws of Louisiana, read in the light of the United States Constitution, as interpreted by the Supreme Court, Negro residents have a right to attend desegregated public schools. Defendants by their contractual assurances have afforded rights to these federal children as third-party beneficiaries⁴ concerning the availability of public schools. Such rights are identical in weight and effect to those rights possessed by children who are entitled to attend Bossier Parish schools simply because of residence instead of by contract.

Having thus obligated themselves defendants are now estopped by their contractual agreement, and their acceptance of federal funds paid pursuant thereto, to deny that plaintiffs are entitled to the same rights to school attendance as are resident children. Resident children are entitled to the equal protection of the laws granted by the Fourteenth Amendment, which permits Negro children to bring suits demanding desegregation of public schools. By their contract defendants are...