Orleans Parish School Board v. Bush, 17641.

• Decision Date: 15 July 1959
• Docket Number: No. 17641.,17641.
• Citation: 268 F.2d 78
• Parties: ORLEANS PARISH SCHOOL BOARD, Appellant, v. Earl Benjamin BUSH et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F.2d 78 (1959)

ORLEANS PARISH SCHOOL BOARD, Appellant, v. Earl Benjamin BUSH et al., Appellees.

No. 17641.

United States Court of Appeals Fifth Circuit.

June 9, 1959.

Rehearing Denied July 15, 1959.

Gerard A. Rault, New Orleans, La., for appellant.

A. P. Tureaud, A. M. Trudeau, Jr., New Orleans, La., Thurgood Marshall, Constance Baker Motley, New York City, for appellees.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

PER CURIAM.

This is the third appearance of this case here. On February 15, 1956, the District Court entered a preliminary injunction ordering "that the defendant, Orleans Parish School Board, a corporation, and its agents, its servants, its employees, their successors in office, and those in concert with them who shall receive notice of this order, be and they are hereby restrained and enjoined from requiring and permitting segregation of the races in any school under their supervision, from and after such time as may be necessary to make arrangements for admission of children to such schools on a racially non-discriminatory basis with all deliberate speed as required by the decision of the Supreme Court in Brown v. Board of Education of Topeka, 349 U.S. 294 75 S.Ct. 753, 99 L.Ed. 1083."

This order was appealed to this court and was here affirmed, 5 Cir., 242 F.2d 156. The Supreme Court denied certiorari, 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436. Subsequently a motion to vacate this preliminary injunction on a technical ground was denied by the trial court and on appeal this order was also affirmed, 5 Cir., 252 F.2d 253. The Supreme Court again denied certiorari, 356 U.S. 969, 78 S.Ct. 1008, 2 L.Ed.2d 1074.

On April 16, 1958, asserting that on July 13, 1956, long before it filed its previous motion to dismiss the injunction, the Legislature passed and the Governor of Louisiana approved Act 319 of the Acts of 1956, LSA-R.S. 17:341 et seq., which deprives the Board of the power to change the racial classification of the Orleans Parish schools, it moved again to dismiss the action on the ground that it "is not a proper party defendant herein".

The Act of 1956 is entitled "An Act To establish a method of classification of public school facilities in any city with a population in excess of 300,000 (in which class New Orleans fits) to provide for the exclusive use of school facilities therein by white and Negro children respectively, the mode of changing the classification of any schools therein, and to provide that white teachers shall teach only white children and Negro teachers shall teach only Negro children". The Act undertakes to provide that a legislative commission shall be appointed to recommend such classifications, to be finally acted upon by the legislature itself, thus depriving the Parish Board of its power to alter its existing pattern of white and negro schools.

Appellant urges that the legislature may, under this method, classify some schools as non-segregated schools, although such action would be violative of the provision in the act which requires that teachers of each race teach only members of their own race.

The trial court held that this statute was unconstitutional on its face and denied the motion to dismiss. The court then entered a permanent injunction against the Board in the precise terms of its prior preliminary order quoted above. The Board has appealed.

We affirm the judgment of the trial court. It is immaterial whether the 1956 law is held by the State Supreme Court to be constitutional or unconstitutional so far as concerns the correctness of the trial court's judgment. It has long been held that state officers found to be operating state institutions or performing state functions contrary to the provisions of the Constitution may be enjoined from continuing such acts. Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156. The trial court has now determined, in accordance with the duty imposed upon it by the United States Supreme Court in Brown v. Board of Education of Topeka, supra, that appellees here are entitled to an order directing the Orleans Parish Board to cease operating racially segregated schools at an unspecified future date. Since, under the Act of 1956, the operation of the Orleans Parish schools is still confided to ...