Norwood v. Harrison
| Decision Date | 17 April 1972 |
| Docket Number | Civ. A. No. WC 70-53-K. |
| Citation | 340 F. Supp. 1003 |
| Parties | Delores NORWOOD et al., Plaintiffs, v. D. L. HARRISON, Sr., et al., Defendants. |
| Court | U.S. District Court — Northern District of Mississippi |
Melvyn Leventhal, Jackson, Miss., for plaintiffs.
William Allain, Asst. Atty. Gen., Jackson, Miss., for defendants.
Before COLEMAN, Circuit Judge, and KEADY and SMITH, District Judges.
I
This suit, a class action by Negro children attending the public schools, is brought through their parents as next friends.
The defendants are the members of the Mississippi State Textbook Purchasing Board and the Executive Secretary of that Board.
The gravamen of the complaint is that:
Plaintiffs thus assert that defendants' lending of state-owned textbooks to children now attending racially segregated private schools situated within the State of Mississippi is violative of plaintiffs' Fourteenth Amendment rights and constitutes illegal state aid to racially segregated education. Plaintiffs emphasize that they do not challenge the right of students attending private schools, either sectarian or nonsectarian, to receive state-owned textbooks so long as the schools they attend were not organized in the wake of public school desegregation and do not engage in racially discriminatory admission practices, but as to students attending schools of the latter category, their claim is that the state may not validly provide them with free textbooks.
Plaintiffs pray an order requiring an accounting by defendants of all textbooks purchased from the State of Mississippi or on loan from the State of Mississippi to private schools and students enrolled therein; that defendants be directed immediately to recall, and otherwise assure the return to state depositories, of all textbooks used by students in attendance at private schools which have already been adjudged by other United States Courts as racially segregated and which have been formed for the purpose of providing white students with an alternative to racially integrated, non-discriminatory public schools; that the defendants be enjoined from further sale or distribution of such textbooks to any private schools or students enrolled therein without first notifying plaintiffs and obtaining court approval; and that defendants be enjoined from distributing state-owned textbooks to any private schools or students enrolled therein without first establishing that the school is racially integrated and has not had the effect of frustrating or impeding the establishment of racially integrated public schools.
Subject matter jurisdiction, not contested, is predicated upon 42 U.S.C., § 1983 and 28 U.S.C. § 1343(3) and (4).
II
Subsequent to the original filing of the complaint, plaintiffs submitted the following motion:
In response thereto, the managing District Judge concluded that the complaint called for the convening of a Three-Judge District Court in accordance with 28 U.S.C. § 2284, and requested the Chief Judge of the Circuit to constitute a Court as contemplated by the statute. Thereafter, the Court was constituted.
The present views of the plaintiffs to the contrary notwithstanding, the Court is of the opinion that, sitting as a Three-Judge District Court, it has jurisdiction of this controversy.
Title 28 U.S.C., § 2281, provides:
"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284."
To authorize the convention of a Three-Judge Court the controversy must possess the following characteristics: (1) the constitutional question raised must be substantial; (2) a state statute or administrative order of general state-wide application must be assailed as unconstitutional; (3) a state officer must be party defendant; and (4) injunctive relief must be sought. Idlewild Bon Voyage Liquor Corporation v. Epstein, 1962, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794; Hall v. Garson, 5 Cir., 1970, 430 F.2d 430, 442-443; Moore's Federal Practice, 1A., § 0.205; C. A. Wright, Law of Federal Courts, § 50 at 189 (2nd Ed. 1970).
This case meets these tests.
An injunction is sought against the enforcement by state officials of a state statute, § 6634, et seq., Mississippi Code, 1942,1 and Board regulations.2 The contention is that although the statute requires the free lending of textbooks to all educable children, it should not include those attending private, racially segregated schools. Plaintiffs say that they do not object to other educable children receiving the books. Thus it is argued that they are not claiming the statute to be altogether unconstitutional but they are only challenging the constitutionality of its application. Since, however, the statute specifically provides that all children shall receive the books and this Court has no authority to amend that language, we must consider the complaint as an attack on the statute as written. Our jurisdiction, of course, extends to a consideration of whether a facially valid statute has been unconstitutionally applied by officers in charge of its enforcement.
As to substantiality, see Ex Parte Poresky, 1933, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152, 153; Local Union No. 300, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. McCulloch, 5 Cir., 1970, 428 F.2d 396, 399-400.
Contrary to the position taken by defendants, we hold that these plaintiffs, black children who are attending the public schools, have standing to prosecute this complaint, Chance v. Mississippi State Textbook Rating & Purchasing Board, 1941, 190 Miss. 453, 200 So. 706; Association of Data Processing Service Organizations, Inc. v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184; Barlow v. Collins, 1970, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192.
III
Near the close of the Great Depression, Governor Paul B. Johnson, Sr. on January 16, 1940, delivered his Inaugural Address to a joint session of the Mississippi Legislature.3 He said that 75,000 children in Mississippi were without textbooks, that all states surrounding Mississippi gave free textbooks to each child in those states, that the failure to provide free textbooks to the children of Mississippi was "an indictment of our state government", and that the State should furnish free textbooks to all educable children in the elementary grades.
The result of this appeal was the enactment of Chapter 202 of the General Laws of the State of Mississippi of 1940, approved February 16, 1940, now codified as indicated supra, by which a textbook purchasing board was established. The board was cloaked with authority to select, purchase, distribute, and care for free textbooks in all schools in the State, through the first eight grades.
In his message to the Legislature on January 7, 1942,4 Governor Johnson recommended that the free textbook program be extended to high school students. This resulted in the enactment of Chapter 152 of the General Laws of Mississippi of 1942, approved March 23, 1942, also codified as above, by which the program was extended to include high school students.
The program had not long been in existence, however, before a state court suit was filed to enjoin the Textbook Purchasing Board from distributing free textbooks to private and sectarian schools. This was a taxpayers' suit, complaining that textbooks were about to be requisitioned by and loaned to pupils in thirteen private elementary schools, all of which were sectarian, and that the issuance of such books for the free use of students in sectarian schools would be a violation of § 208 of the Mississippi Constitution of 1890.
Section 208 provides that:
"No religious or...
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Norwood v. Harrison 8212 77
...identifiable minority students, and other relevant data. Certification of eligibility will be subject to judicial review. Pp. 470—471. 340 F.Supp. 1003, vacated and remanded. Melvyn R. Leventhal, Jackson, Miss., for appellants. William A. Allain, Jackson, Miss., for appellees. Mr. Chief Jus......