RACE, CIVIL RIGHTS, AND THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH JUDICIAL CIRCUIT
By
JOHN MICHAEL SPIVACK
A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF
THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
1978
Copyright 1978
by
John Michael Spivack
ACKNOWLEDGEMENTS
In apportioning blame or credit for what follows, the allocation is
clear. Whatever blame attaches for errors of fact or interpretation are
mine alone. Whatever deserves credit is due to the aid and direction of
those to whom I now refer. The direction, guidance, and editorial aid
of Dr. David H. Chalmers of the University of Florida has been vital in
the preparation of this study and a gift of intellect and friendship.
Without his persistent encouragement, I would long ago have returned to
the wilds of legal practice. My debt to him is substantial. Dr. Larry
Berkson of the American Judicature Society provided an essential intro-
duction to the literature on the federal court system. Dr. Richard Scher
of the University of Florida has my gratitude for his critical but kindly
reading of the manuscript.
Dean Allen E. Smith of the University of Missouri College of Law
and Fifth Circuit Judge James P. Coleman have me deepest thanks for
sharing their special insight into Judges Joseph C. Hutcheson, Jr., and
Ben Cameron with me. Their candor, interest, and hospitality are appre-
ciated. Dean Frank T. Read of the University of Tulsa School of Law, who
is co-author of an exhaustive history of desegregation in the Fifth Cir-
cuit, was kind enough to confirm my own estimation of the judges from his
broad and informed perspective.
I owe very special thanks to Judges John R. Brown, Warren L. Jones,
Richard Taylor Rives, Elbert Parr Tuttle, and John Minor Wisdom. I am,
of course, grateful for the time they took from busy schedules to talk
with me. But there is more. To meet them, to know them as more than
the minds behind judicial opinions has been one of the real privileges
of my life. They are the honor, the dignity, the beauty of law. I can
only say of them, it was the South 's good luck they served us on the
Fifth Circuit, and not on the Supreme Court, where they deserved to be.
The debt I owe Patricia Spivack, my wife, friend, and counselor, can
not be measured. Her personal sacrifice not only was necessary to the
completion of this study, it created the opportunity to even begin it.
It is a debt I shall not soon be able to repay.
PREFACE
On Hay 17, 1954, the nine Justices of the United States Supreme
Court initiated the most far reaching change in the South since the
abolition of slavery. In four cases consolidated under the title of
Brown v. Board of Education of Topeka, they decided that the practice
of requiring by law the racial segregation of children in the public
schools was in violation of the constitutional guaranty of the equal
protection of the law. The least democratic branch of the federal govern-
ment had mandated the reversal of centuries of discrimination and a half-
century of national acceptance of Southern race relations. The law of
the land had been remade, but as was true with all judicial decisions,
this did not necessarily change behavior. Whether or not the promise of
Brown would be fulfilled depended upon the success of efforts to imple-
ment and enforce that decision. What follows is a crucial part of that
story.
The genesis of this study was a desire to understand the performance
of the South' s federal judges in the early years after the Brown decision.
This topic was suggested by two books on the role of the Southern federal
judges in school desegregation and voting rights cases. Jack Peltason's
58 Lonely Hen, and Charles Hamilton's The Bench and the Ballot. Both
authors divided the judges into three categories. The "Integrationist"
category contained a small minority of the judges. These judges agreed
completely with the Supreme Court and actively promoted and extended the
process of desegregation. A "Segregationist" category constituted a
majority of the judiciary. These judges favored racial segregation,
disagreed with the Supreme Court, but were also committed to the rule of
law. They did not wish to force compliance with Brown, but they obeyed
the Supreme Court mandate. They were capable of being educated by
attorneys for blacks who brought suit to desegregate the schools and
would correct clear cases of discriminatory treatment. The last cate-
gory, consisting of a large minority of the Southern judges, was described
as "Die-Hard" or "Resistors." These men took segregation of the races
as an article of faith and attempted to prevent or delay the impact of
the Supreme Court decision and the application of national racial policy
in the South.
Peltason and Hamilton dealt with the Southern federal judges as a
whole, but they concentrated upon the role and activities of the Dis-
trict Courts. The scant attention they paid to the Courts of Appeals
conformed to the general pattern of the historical literature. Interest
has been limited to the policy setting body and final forum, the Supreme
Court, and the trial level of the federal system, the District Courts.
While political scientists have been concerned with Appeals Court adminis-
tration, predicting the behavior of appellate judges, and the political
nature of the judicial process, historians seem to have ignored these
courts. Nevertheless, it was apparent that the Courts of Appeals merited
investigation, for they were the final arbiter in well over 90 per cent
of all federal litigation and an even higher percentage of the desegre-
gation suits well into the 1960's.
What I most wanted to understand was why the judges reacted so
differently to their role in desegregating the Deep South. How could
Peltason's and Hamilton's three part typology be explained, if indeed
their analysis was correct. A reading of the cases convinced me that
there was a discernible pattern among the judges, and that pattern was
accurately reflected in the proposed categories. It had been my ex-
perience as a practicing attorney, confirmed by the literature, that most
Southern judges shared a roughly similar background. Most were Democrats,
educated either in the South or at the most prestigious of the Ivy League
schools, brought up in comfortable circumstances, and active practi-
tioners of general law. I hoped to determine what factors or influences
led these judges to follow the very diverse routes that Peltason and
Hamilton described.
The vehicle by which I chose to examine the development of the
Court of Appeals judges was the school desegregation litigation in the
Fifth Circuit, which includes most of the Deep South states, in the years
immediately following the Brown desegregation decisions. This period,
from 1954 to 1961, I believed was the most difficult time for the Fifth
Circuit Judges. Resistance to integration was entrenched, for the
notion of racially mixed schools was so new to the South. The Supreme
Court, after it had delivered its landmark decisions, more or less retired
from active participation in desegregation. The Eisenhower Administra-
tion did not push for enforcement, and Congress passed no meaningful
civil rights legislation until 1964. The Civil Rights Movement was yet
in its infancy. These were the years of the heyday of the White Citizens
Councils, and their more violent brethren, the reborn Ku Klux Klan lurked
in the piney wood wings. As a result, the lower federal courts were
virtually on their own in the enforcement process, during the most dif-
ficult period of Southern resistance. Not since the first reconstruction
were the contradictions of public opinion and community pressures on the
one hand and the requirements of the law on the other greater, and on
the earlier occasion, the pressures won. Thus, the contrasting paths
chosen by the Appeals judges would be most clearly delineated.
It was immediately apparent that I could not hope to examine all of
the desegregation cases. Such an endeavor would have occupied decades
rather than years, since I intended to give as complete as possible a
description of each case and there were literally hundreds of cases.
I therefore sought a limited number of school cases tried during the
Eisenhower years to serve as examples of different patterns. The
primary requirement in each instance was that the Fifth Circuit Court
of Appeals played an important role in the litigation. The three suits
I settled upon involved the schools of Miami, Dallas, and New Orleans.
The Miami case was relatively uncomplicated, involved little contro-
versy, and resulted in voluntary but token integration. It was typical
of the majority of the school cases. Both the Dallas and New Orleans
cases were long struggles, involving multiple hearings and bitter-end
resistance. In the Dallas cases, the problem centered around two Dis-
trict Court judges who made every effort possible to prevent or delay the
enforcement of Brown. In New Orleans, the District Court and Court of
Appeals were arrayed against the entire state government machinery of
Louisiana.
The judges I chose to examine were those who were either on the
Court in 1954 or came to serve at least until 1961. That list consisted
of seven men: Joseph C. Hutcheson, Jr., Richard Taylor Rives, Elbert
Parr Tuttle, Warren L. Jones, Benjamin F. Cameron, John R. Brown, and
John Minor Wisdom. As so often happens, real life does not fit
conveniently one's preconceived assumptions. My intended examination of
the three-part typology described by Hamilton and Peltason was impossible,
for these men did not share a similar background. Further, this group
of men could hardly be described as typical Southern judges. Five of
them were Republicans, all appointed to the Court of Appeals by Eisen-
hower, and three had not been born, raised, or educated in the South.
Thus it seemed that my study had come to an abrupt halt. As I read
the cases and interviewed the judges, only Hutcheson and Cameron are no
longer alive, I realized that these men needed no organizing principle,
no theory, to justify their story being told. Perhaps they were atypical
and impossible to categorize because they were unique individuals who
performed a monumental service for their country. The Court of Appeals
for the Fifth Circuit led the way in desegregation and formulated policies
that the Supreme Court later adopted. All but two of the judges were,
each in their own way, great men, and their convocation on one court at
the same time was unforeseen good fortune for the South. Whatever suc-
cess the South has experienced in reversing three hundred years of dis-
crimination and prejudice is owed not alone to the courageous civil
rights activists and martyrs, the Southerners of good will, and the
national policy makers. It is in no small part due to the men of the
Fifth Circuit Court of Appeals who first came together in the 1950's.
I therefore decided to at least begin to tell their story.
The following study attempts to acquaint the reader with the setting
in which the judges operated and the seven men who had such an impact
upon racial equality in the South. The federal court system and its
procedures are outlined to provide the institutional background. Southern
attitudes during the 1950's provide the counterpoint to the legal and
constitutional standards established by Brown and give some idea of the
pressures the judges faced. Before examining each of the three desegre-
gation suits, which serve as examples of the litigation as a whole,
brief biographical information introduces the judges. The final chapters
are devoted to examination of the lives, attitudes, and philosophies of
the men of the Fifth Circuit.
TABLE OF CONTENTS
Page
ACKNOWLEDGEMENTS iii
PREFACE v
ABSTRACT xiii
CHAPTER
I THE INSTITUTIONAL SETTING 1
The Federal Court System 1
Organization of the Federal Courts . . l
District Courts 2
The Courts of Appeals ' \ g
The Supreme Court 13
Other federal courts 18
The constitutional courts ig
The legislative courts 21
Administration of the Federal Court System . . 22
Court Support Personnel 24
The Administrative Office of the United States Courts 25
The Judicial Conference of the United States 25
Administrative Bodies on the Circuit Level 26
Process and Procedure: The Paper Journey Through the
System 26
The Courts of Appeals 42
The Development of the United States Circuit
Courts—Courts of Appeals 42
The Function and Role of the Courts of Appeals. . '. '. 45
The Business of the Courts of Appeals 48
The Court of Appeals for the Fifth Circuit 50
II THE SOUTHERN SETTING 62
III THE JUDGES (1): THE PERSONAL SETTING 89
Joseph C. Hutcheson, Jr 91
Richard Taylor Rives 92
Elbert Parr Tuttle ........... 93
Benjamin Franklin Cameron '.'.'. 95
Warren LeRoy Jones .!!!.'!! 96
John R. Brown '.'.'.'. 97
John Minor Wisdom 98
Page
IV THE CASES (1): THE FACTUAL SETTING, GIBSON v. BOARD OF
PUBLIC INSTRUCTION OF DADE COUNTY. . . . . . . . 103
V THE CASES (2): THE FACTUAL SETTING, BORDERS v. RIPPY. . . 125
VI THE CASES (3): THE FACTUAL SETTING, BUSH v. ORLEANS
PARISH SCHOOL BOARD 77". . . . . . ... 161
Delay: 1952-1960 ■ . . . . 164
The Major Battle: 1960-1961 180
Hopping Up: 1961- 208
Conclusion 212
VII THE JUDGES (2): JOHN MINOR WISDOM AND JOSEPH C.
HUTCHESON, JR ' 214
VIII THE JUDGES (3): RICHARD TAYLOR RIVES AND BENJAMIN
F. CAMERON 245
IX THE JUDGES (4): JOHN R. BROWN, ELBERT PARR TUTTLE,
AND WARREN L. JONES 269
X CONCLUSION 301
APPENDIX
A SUPREME COURT DECISIONS IN BROWN ET AL. v. BOARD OF
EDUCATION OF TOPEKA ET AL 309
B COURT OF APPEALS DECISIONS IN GIBSON v. BOARD OF PUBLIC
INSTRUCTION OF DADE COUNTY 315
C COURT OF APPEALS DECISIONS IN BORDERS v. RIPPY 321
D COURT OF APPEALS DECISIONS IN BUSH v. ORLEANS PARISH
SCHOOL BOARD 77 355
SELECTED BIBLIOGRAPHY 385
BIOGRAPHICAL SKETCH 396
Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment of the Requirements
for the Degree of Doctor of Philosophy
RACE, CIVIL RIGHTS, AND THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH JUDICIAL CIRCUIT
By
John Michael Spivack
August, 1978
Chairman: David M. Chalmers
Major Department: History
This dissertation examines the performance of seven judges of the
United States Court of Appeals for the Fifth Circuit in school desegre-
gation cases in the years between the announcement of Brown v. Board of
Education of Topeka et a! . in 1954 and the end of the Eisenhower Adminis-
tration in 1961. The federal judicial system and its procedures and the
climate of opinion in the South are described to illustrate the counter-
vailing pressures on the federal judges.
Three desegregation suits are examined, each of which is representa-
tive of different problems faced by the Court of Appeals. The cases
involve the public schools of Miami, Florida; Dallas, Texas; and New
Orleans, Louisiana. Emphasis is placed upon the interaction between the
federal judges and the communities and between the District and Appeals
Courts.
John R. Brown, Benjamin F. Cameron, Joseph C. Hutcheson, Jr., Warren
L. Jones, Richard Taylor Rives, Elbert Parr Tuttle, and John Minor Wisdom
are the judges included within the study. With the exception of Cameron
and Hutcheson, all are still alive and sit on the Court of Appeals for
the Fifth Circuit. Information obtained through personal interviews
relating to their background, experience in the desegregation cases, and
judicial philosophy is presented. Judge Hutcheson's first law clerk,
Dean Allen E. Smith of the University of Missouri College of Law, was
interviewed in his stead and Judge James P. Coleman, Cameron's replace-
ment on the Court and close friend, provided information about Judge
Cameron.
Five of the judges were Republican, but of this number, three were
the most forceful advocates for an extensive role for the federal courts.
Four of the judges were born, reared, and educated in the South, but two
of them were consistent enforcers of school desegregation. One of the
non-Southerners adopted the most conservative philosophical position on
the role of the federal courts. Thus, characteristics such as political
identification, social background, and place of birth provide little
insight into the judges' attitudes about desegregation and the proper
function of the federal courts.
Due largely to the efforts of four of the judges, John R. Brown,
Richard Taylor Rives, Elbert Parr Tuttle, and John Minor Wisdom, the
Court of Appeals for the Fifth Circuit took the lead in enforcing the
Brown desegregation decisions. Virtually alone, they developed policy
and procedure that was eventually adopted by the Supreme Court and
applied to the nation at large. These four men combined intellect,
leadership, integrity, courage, and administrative talent to enforce
national standards of racial equality upon the South.
It is argued that the Court of Appeals for the Fifth Circuit in the
period examined by this study was uniquely blessed by judicial greatness.
The fortunate accident of bringing together on one court Judges Brown,
Rives, Tuttle, and Wisdom, due in part to the independence of the Eisen-
hower Administration from political debt to southern Democratic Senators,
was primarily responsible for the relative success and lack of violence
in desegregating the public schools in the Deep South. During the
period of greatest resistance to integration, the Court broke down the
legal barriers and reaffirmed the primacy of the Constitution.
CHAPTER I
THE INSTITUTIONAL SETTING
The purpose of this chapter is to provide basic information about
the'federal court system and to focus in particular on the United States
Courts of Appeals. The organization of the system will be outlined, and
a hypothetical civil case will be followed in the courts from original
filing through Supreme Court decision to illustrate the procedure in-
volved. Special attention will be given to the development and operation
of the Courts of Appeals and particularly the Court of Appeals for the
Fifth Circuit.*
The Federal Court System
Organization of the Federal Courts
The founding provisions for the federal judicial system can be found
in the U.S. Constitution and the legislation which was immediately enacted
to implement the basic grants of power. Article III, Section 1, vested
the judicial power of the new government in one Supreme Court and in-
ferior courts which were to be established by Congress. The jurisdiction
of the Supreme Court, to be discussed subsequently, was set forth in
Article III, Section 2. Article I, Section 8, among other powers, gave
Congress the power "to constitute Tribunals inferior to the Supreme Court."
*In the following discussion, all references will be to the federal
courts unless otherwise specified and will describe them as they operate
at the present time.
-2-
These constitutional grants allotted power and vested jurisdiction, but
they established no courts nor provided for any judges. That task was
accomplished by the Congress in its first session by the passage of the
Judiciary Act of 1789. The specific provisions of that legislation will
be detailed in the course of the discussion, but it is here sufficient
to know that the Supreme Court, Circuit Courts, and District Courts were
set up, and judges were authorized for these courts.
The District Courts
The lowest tier of the federal court system, the trial courts of
the system, are the United States District Courts. There are ninety-four
of these courts, eighty-nine in the fifty states, and one each in the
District of Columbia, the Canal Zone, Guam, Puerto Rico, and the Virgin
2
Islands. Each state has at least one district, but many have two or
three districts, and New York, California, and Texas, each has four.
Except for the district of Wyoming, which includes portions of Yellowstone
National Park which extends into other states, districts do not cut across
state lines, although many districts, due to increases in population and
caseload, are divided into divisions. Each district has between one
and twenty-seven judges depending on the volume of cases in that district.
This does not include the U.S. Magistrates, known as Commissioners
before 1968, who perform minor judicial duties and do not constitute
official courts of record. Richard H. Reimer, A Guide to Court Systems
(5th ed.; New York: Institute of Judicial Administration, 1971),
p. 13.
2
The United States Courts: Their Jurisdiction and Work (Washington,
D.C.: U.S. Government Printing Office, 1975), p. 7.
3
Reimer, Guide to Court Systems, p. 3.
In those districts with more than one judge, the most senior judge in
terms of service, provided he is under seventy years of age, is the
4
Chief Judge.
Almost all cases in the District Courts are heard by one judge. The
only exception to this rule is that by statute (28 USC Sec. 2281) when
an injunction is sought in the District Court to restrain the enforcement,
operation, or execution of a state statute by a state officer or by an
administrative agency, the case must be heard by a three-judge panel, one
of whose judges must be a Circuit Judge from the Court of Appeals.
The jurisdiction of the District Courts is quite broad (the basic
grant is found in 28 USC Sees. 1331 and 1332), constituting the main
locus of original, or trial, jurisdiction in the federal courts. The
major components of that jurisdiction include: all offenses against the
laws of the United States, all civil actions in which the amount in
controversy exceeds $10,000 and is between citizens of different states,
or citizens of a state and foreign states or their citizens, and all
civil actions in which the amount in controversy exceeds $10,000 and
which arises under the Constitution, laws, or treaties of the United
States. Additionally, the District Courts have been given jurisdiction
over certain civil actions regardless of the amount in controversy,
among which are included tax cases, civil rights cases, cases involving
suits allowed against the United States, cases involving the regulation
of interstate commerce, and habeas corpus proceedings.
4
The United States Courts, p. 7.
5
Reimer, Guide to Court Systems, p. 8.
Charles Bunn, A Brief Survey of the Jurisdiction and Practice of
the Courts of the United States (5th ed. ; St. Paul, Minnesota: West
Publishing Co., 1949), pp. 36-69, passim.
A portion of the jurisdiction of the District Courts is exclusive
and not shared with state courts. In these instances, cases may be
brought only before the federal courts. The exclusive jurisdiction of
the District Courts is an expression of the need for uniform law on
matters in which the states have no interest and may not interfere. The
most common of these cases include admiralty and maritime cases, bank-
ruptcy proceedings, patent and copyright cases, cases involving fine,
penalty or forfeiture under federal law, and cases involving the seizure
of federal property. The District Courts also share a large portion of
their judicial power with the state courts. This is known as concurrent
jurisdiction and makes up the majority of the civil actions heard in the
federal courts. Such cases may be brought before either the proper
state court or the District Court.
Concurrent jurisdiction is a recognition that both federal and state
governments may have a legitimate interest in the legal regulation of
the conduct of its citizens. Whether a case will be brought in the
federal or state courts is initially determined by the plaintiff. The
differences between the two sets of courts are no longer substantive, for
both are bound by the applicable law. For example, suits brought under
federal statutes in state courts must be decided according to those
statutes. Similarly, cases filed in the federal courts because of
diversity of citizenship must be decided according to applicable state
law. Today, the choice of court usually depends upon the perceived
sympathies and expertise in the federal or state systems.
Reimer, Guide to Court Systems, pp. 4-5.
-5-
To equalize the position of both parties and prevent the plaintiff
from having complete control of the forum, all actions which are brought
in state courts and are also within the concurrent jurisdiction of the
District Courts may be removed, or transferred, to the federal courts.
The proceedings in the state court are then stayed or held in abeyance.
This removal right extends to federal officers and administrative agencies
sued in state courts as well as to all other defendants. Whether the
removal to the federal courts is proper is determined by the District
Q
Courts. If the removal is not proper, the case is transferred back to
the state courts.
The selection of federal judges appears to be a simple process. All
federal judges are appointed by the President with the advice and consent
of the Seante. In fact, the selection process is involved in partisan
politics and is quite complex, involving many participants. The initia-
tion of the candidacy of any aspirant to a District Court judgeship may
be the Senator from the state in which the District Court vacancy appears,
particularly if he is of the same political party as the President, by
the President himself or his advisors, by local party leadership in the
state involved, by the candidate for the judgeship himself, or even by
an influential federal judge already on the bench. In most cases, more
than one of these participants is actively involved in suggesting men
to fill the vacancy. From these sources and from other contacts within
Bunn, Jurisdiction and Practice, pp. 126-141, passim.
9
Richard J. Richardson and Kenneth N. Vines, The Politics of Federal
Courts: Lower Courts in the United States (Boston: Little, Brown & Co.,
1970), p. 58.
the state, the Deputy Attorney General recommends a list to the Attorney
General, who in turn suggests candidates to the President.
The necessary qualifications for candidates for a District Court
judgeship are both formal and informal. The only absolute requirements
are that the candidate must be a lawyer and reside within the district.
Ideally, the candidate's record will give assurance of independence and
dignity on the bench. In fact, the most important qualification is
that the candidate must have given loyal and active political service to
the President's party. It is no surprise, therefore, that the vast
majority of appointments to the federal bench have gone to active members
of the Presidential party. Two further factors are particularly impor-
tant in District Court appointments: The candidate must be personally
and politically acceptable to the U.S. Senator from the state involved12
and must have substantial local ties and a good reputation. The latter
may involve being born in the district or state and having gone to law
1 3
school in the state.
Once the President has a list of possible candidates for the District
Court judgeship, the screening process which began with the Deputy
Attorney General continues in earnest. The candidates have already been
screened for legal and judicial qualifications and political activities
Harold W. Chase, Federal Judges: The Appointing Process (Minnea-
polis: University of Minnesota Press, 1972), p. 17.
Henry J. Abraham, The Judicial Process (2nd ed. ; New York: Oxford
University Press, 1968), p. 27.
12
The tradition of Senatorial courtesy gives the Senator near veto
power over the District Court appointments and limits the appointment
power of the President considerably. Chase, Federal Judges, pp. 7-11.
1 3
Richardson and Vines, Politics of Federal Courts, pp. 71-73.
and attachments by the Justice Department. The relevant Senators'
candidates are usually included on the list, and other candidates are
informally cleared with the Senators to make certain that none of them
are personally obnoxious to them. Further informal screening may take
place through contacts with local party organizations and interest
groups, such as bar associations within the district. The Federal Bureau
of Investigation also conducts an investigation of the background of the
14
candidates.
At this point formal governmental screening is complete, but since
the early 1950's, a private organization has participated in the process.
In 1946 the American Bar Association (hereinafter referred to as the
ABA) established a Standing Committee on the Federal Judiciary to "improve
the quality" of federal judges. By the early 1950's, the ABA Committee
had established a working relationship with both the Attorney General and
1 5
the Senate Committee on the Judiciary. Since that time, all candidates
for the federal bench have been submitted to the ABA Committee for ex-
amination. Through the membership of the Committee and contacts with
bar groups and lawyers who have had dealings with the candidates, the
qualifications of the, men are examined. The Committee then sends a
report to the Attorney General rating those on the list as extremely
well qualified, well-qualified, qualified, or not qualified. While
the influence of the Committee depends upon the working relationship of
14
Ibid., p. 58.
15
Joel B. Grossman, Lawyers and Judges: The ABA and the Politics
of Judicial Selection (New York: John Wiley & Sons, 1965), pp. 64-69.
Chase, Federal Judges, p. 20.
its Chairman and the President's advisors, the ABA's report carries
considerable weight in the Senate. The President may nominate anyone
on the list, regardless of the rating given by the Committee, but
nominations of those rated not qualified have been relatively rare.
After the screening process has been completed, the President sends
his nomination to the Senate for confirmation. While very few refuse the
prestigious position of federal judge, the potential nominee has been
consulted to make sure that he or she will accept. Hearings are held
by the Senate Committee on the Judiciary. In the absence of the invoca-
tion of Senatorial courtesy or some unexpected revelation, nominations
for District Court judgeships are reported out of Committee almost pro
forma. Full Senate confirmation of the nomination usually follows quite
rapidly. Once confirmed in office, federal judges hold office for life,
or "during good behavior." Removal of federal judges can then be
1 8
accomplished only by death, retirement, or impeachment and conviction.
In the relatively few cases in which the Senate either substanti-
ally delayed confirmation or rejected the President's nominee, the
causes fit into a few categories. The most important of these was
political opposition to the President, the nominee's involvement or
identification with some controversial question, a personal animosity
against the nominee or his sponsors, invocation of Senatorial courtesy,
19
or the limited ability of the nominee. The prevalence of questions
such as these, in those few cases where delay or rejection occur,
1 7 I b i d . , p. 121.
18
Abraham, Judicial Process, pp. 41-43.
19Ibid., pp. 80-85.
demonstrates that the selection of District Court judges is deeply in-
volved in politics, and that partisan party considerations are the single
20
most important factor in their selection.
The Courts of Appeals
The intermediate tier of the federal court system is the United
21
States Courts of Appeals. There are eleven of these courts, one each
for the numbered circuits and one for the District of Columbia. The ten
are 1) First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico,
and Rhode Island; 2) Second Circuit: Connecticut, New York, and Vermont;
3) Third Circuit: Delaware, New Jersey, Pennsylvania, and the Virgin
Islands; 4) Fourth Circuit: Maryland, North Carolina, South Carolina,
Virginia, and West Virginia; 5) Fifth Circuit: Alabama, the Canal Zone,
Florida, Georgia, Louisiana, Mississippi, and Texas; 6) Sixth Circuit:
Kentucky, Michigan, Ohio, and Tennessee; 7) Seventh Circuit: Illinois,
Indiana, and Wisconsin; 8) Eighth Circuit: Arkansas, Iowa, Minnesota,
Missouri, Nebraska, North Dakota, and South Dakota; 9) Ninth Circuit:
Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington,
Guam, and Hawaii; and 10) Tenth Circuit: Colorado, Kansas, New Mexico,
22
Oklahoma, Utah, and Wyoming.
20
Jack W. Peltason, Federal Courts in the Political Process, Short
Studies in Political Science (Garden City, New York: Doubleday &
Company, 1955), pp. 30-31.
21
Prior to 1948, these courts were known as the United States
Circuit Courts of Appeals. Reimer, Guide to Court Systems, p. 7.
22
Ibid., p. 7.
-10-
The number of judges on the Courts of Appeals varies from circuit
to circuit, depending on the demands of the caseload each circuit handles.
At present, the authorized Court of Appeals judgeships are as follows:
1) D.C. — nine; 2) First— three; 3) Second— nine; 4) Third—nine; 5) Fourth-
seven; 6) Fifth—fifteen; 7) Sixth— nine; 8) Seventh— eight; 9) Eighth—
eight; 10) Ninth—thirteen; and 11) Tenth — seven. The most senior
judge in terms of service provided he is under seventy years old serves
as the Chief Judge of the Court of Appeals for each circuit. After
seventy, appeals judges may retire and take senior status, and receive
the same pay as the sitting judges, or may resign completely and have
their pensions set at the time of resignation. As in the District Courts,
the senior judges are available for such part-time duty as they are able
and willing to perform.
Most cases in the Courts of Appeals are heard by panels of three
judges, appointed by rotation on a case by case basis. Occasionally,
when the backlog of pending cases is very great and congestion on the
docket becomes a real problem, District Court judges may be temporarily
assigned to decision panels. Assignment by rotation spreads the work of
the Court of Appeals among different combinations of judges. While each
circuit follows its own procedures, in order to avoid inconsistency
between decision panels within a given circuit or to decide particularly
important cases, all of the judges of the Court of Appeals will hear a
case together, called sitting en banc.
23
James E. Langner and Stephen Flanders, Comparative Report on
Internal Operating Procedures of United States Courts of Appeals
(Washington, D.C.: Federal Judicial Center, 1973), p. 77.
24
Reimer, Guide to Court Systems, p. 8.
-11-
The work of the United States Courts of Appeals is limited almost
entirely to appellate jurisdiction, reviewing the propriety of the de-
cisions of other courts and governmental bodies. The basic statement is
found in 28 USC Sec. 1291:
The courts of appeals shall have jurisdiction of
appeals from all final decisions of the district
courts of the United States, the United States Dis-
trict Court for the District of the Canal Zone, and
the district court of the Virgin Islands, except
where direct review may be had in the Supreme
Court. "
These appeals are by right to the complaining party and not within the
discretion of the courts. There are cases in which the Courts of Appeals
are bypassed in appealing District Court decisions (appeals going directly
from the District Court to the Supreme Court), and they include 1) de-
cisions of three-judge District Courts, 2) special legislative situa-
tions, and 3) cases of imperative and immediate public importance.
The other basic segment of the jurisdiction of the Courts of Appeals
consists of appeals from decisions of certain federal administrative
agencies, such as the National Labor Relations Board, the Security and
Exchange Commission, and the Federal Trade Commission, and the enforce-
27
ment of their orders. These appeals are numerous, and together with
appeals from final decisions of the District Courts, constitute over 95
per cent of the caseload of the Courts of Appeals. These courts also
25
Bunn, Jurisdiction and Practice, p. 187.
Abraham, Judicial Process, p. 164.
27
Hart & Wechsler, The Federal Courts and the Federal System 55
(2nd ed., 1973). *
-12-
hear appeals from District Court interlocutory orders (those which are
temporary and not final) and issue special writs (commands to act or
28
refrain from acting). Finally, although usually thought of as regular
appellate business, the Courts of Appeals examine prisoner petitions and
other pro se matters.
The selection process and tenure for Courts of Appeals judges are
the same as those for the District Court judges. There are some practi-
cal differences, however, which relate quite clearly to the constituency
of the Courts of Appeals. Since the circuits consist of more than one
state, local political groups and individual Senators have both less
influence in the selection process and proportionally less interest in
the nominations. Invocation of Senatorial courtesy is still possible,
but unless several Senators are involved, it is more easily overridden.
This gives the President and his advisors greater independence in choosing
their nominees. There is also a general recognition that the Courts of
Appeals are more national and less provincial in scope and orientation
29
than the District Court, further limiting the acceptable influence of
local interests. Because Court of Appeals appointments are both per-
ceived to be and are in fact of great importance, influential sitting
judges have greater impact and involvement in the screening of candi-
dates once the nominations are made, through direct communication with
28
Bunn, Jurisdiction and Practice, pp. 191-92.
29
Jack W. Peltason, 58 Lonely Men: Southern Federal Judges and
School Desegregation (Urbana, Illinois: University of Illinois Press,
1961), p. 28.
30
Courts of Appeals are the final arbiters of over 98 per cent of
all appeals in the federal courts. Reimer, Guide to Court Systems,
p. 8.
-13-
the ABA Committee or with the Senate Committee on the Judiciary. This is
particularly true when the candidates have been judges previously and
estimates of their judicial abilities, temperament, and attitudes can
be made.
Party affiliation, past political activity and support, and com-
petent legal and judicial experience remain the most important qualifica-
tions for office, but, although there is no set rule, an additional
qualification may be state of residence. Seats on the Courts of Appeals
are distributed proportionally among the states in each circuit, and
when a vacancy occurs, it is usual for the nominee to come from the home
state of the previous occupant. This procedure is not always followed,
for political reality may prevent such succession. For example, the
liberal District Court judge from the Eastern District of Louisiana,
J. Skelly Wright, clearly deserving of a promotion to the appeals bench,
was appointed to the Court of Appeals for the District of Columbia,
rather than to the Court of Appeals of the Fifth Circuit where political
opposition to him was widespread.
The Supreme Court
At the apex of the federal judicial system stands the Supreme Court
of the United States, the most powerful court in the world and probably
the most highly respected. There are nine justices on the Supreme Court,
and with the exception of Roosevelt's attempted reorganization of the
Court in 1937, there have been no serious attempts to alter the structure
of the Court since 1869. The Supreme Court sits in Washington, D.C.,
and holds sessions approximately thirty-six weeks each year, starting
-14-
with the first or second Monday in October and continuing to the end of
31
June. The justices are recruited primarily from two sources, judges
who are currently serving in federal or state courts and federal or
state government officials. Only in a few cases, an outstanding legal
scholar, law professor, or eminent practicing attorney has been chosen.
The jurisdiction of the Supreme Court is very specific and includes
all cases arising under the Constitution, laws, and treaties of the
United States, admiralty and maritime cases, cases involving foreign
states and their ambassadors or other citizens, federal land grant cases,
disputes between two states, cases to which the United States is a party,
and cases between citizens of different states.32 This seems a very
broad grant of judicial power, but in fact, the jurisdiction of the
Supreme Court has become fairly narrow through judicial self-restraint.
The exclusive original jurisdiction of the Court is limited to two
types of cases, controversies between two or more states and actions
against ambassadors, ministers, consuls and their staffs, not incon-
sistent with the "general law of nations." The concurrent original jur-
isdiction of the Supreme Court consists of three types of cases: actions
brought by foreign ambassadors or ministers or to which consuls of foreign
states are parties, controversies between the United States and a state,
and actions brought by a state against citizens of another state or
33
aliens. This original jurisdiction accounts for an extremely small
31
Abraham, Judicial Process, p. 190.
32U.S. Const., art. Ill, sec. 2.
33
Bunn, Jurisdiction and Practice, pp. 221-22.
-15-
percentage of the Supreme Court's business, the remainder consisting of
appelate jurisdiction.
There are several means of obtaining Supreme Court review of lower
court decisions. Decisions of the District Courts and the Courts of
Appeals are appealed directly to the Supreme Court, where the United
States is a party and an Act of Congress has been held unconstitutional
or where the decision of a three-judge District Court is involved.34 The
largest percentage of cases reviewed by the Supreme Court are the decisions
of the Courts of Appeals. There are three primary methods by which a
Court of Appeals case may be reviewed in the Supreme Court. The most
rarely employed device is that of certification. The Court of Appeals
may certify any question of law to the Supreme Court requesting instruc-
35
tion on legal issues. A much more frequently employed route of review
is appeal by right from the Courts of Appeals. Appeal by right exists
only in cases in which the Court of Appeals has held a state statute
invalid as repugnant to the Constitution, laws, or treaties of the United
States, and the appealing party has relied upon that statute.36 The
third method of review of Court of Appeals (and in some cases District
Court) decisions is by petition for writ of certiorari. The writ of
certiorari is sought to obtain immediate review of lower court decisions
in those cases where review by appeal is not available. This permits
review on a broad spectrum of issues, limited only by the necessity to
pique the interest of at least four Supreme Court justices. This method
34
Ibid., pp. 225-31, passim.
35
Reimer, Guide to Court Systems, p. 10.
Bunn, Jurisdiction and Practice, p. 232.
-16-
of review gives the Supreme Court discretionary power over its own
jurisdiction. To grant certiorari, calling for the entire record of
proceedings in the lower court to be brought before the Supreme Court
for review, an affirmative vote of four justices is required.37
The Supreme Court also reviews final decisions of the highest court
of a state in which a case may be heard. Review is obtained by appeal
when the validity of a United States statute or treaty is questioned and
denied or when there is a constitutional challenge to the validity of a
state statute and its validity is upheld. The process is by writ of
certiorari when a question such as the above is raised or when there is
a claim of title, right, privilege, or immunity under the Constitution,
laws, or treaties of the United States and that claim is denied.38
The jurisdiction of the Supreme Court, unlike that of most other
courts, is largely discretionary, for even in cases of appeals by right,
the Court must decide that a substantial federal question is involved.
Due to the growth of population and the complexity of modern life, the
potential caseload of the Court is extremely large, and this has led to
a concern that the Court might be overburdened. In response to this
possibility and the Court's desire to preserve its power for important
cases, certain maxims of judicial self-restraint have been developed over
time. These self-imposed restrictions have reduced the scope of Supreme
Court jurisdiction. The following list is not meant to be complete, but
it does include the most important such rules: 1) Before the Supreme
Court will examine an issue, a definite "case or controversy" between two
37
Abraham, Judicial Process, pp. 176-80.
on
Bunn, Jurisdiction and Practice, p. 235.
-17-
adversaries under the Constitution must exist, involving rights and
prevention of wrongs related to the parties bringing the suit; 2) The
parties bringing the suit must have "standing to sue," that is they must
be personally interested in the outcome of the suit; 3) The Supreme Court
will not render advisory opinions; 4) The complaining party must refer
to a particular live issue and constitutional provision upon which he
relies; 5) The Supreme Court will not pass upon the constitutionality
of a statute or official action at the instance of one who has availed
himself of its benefits; 6) Complainants must follow proper lower court
procedure and exhaust all possible judicial and administrative remedies;
7) The federal question involved must be substantial, the pivotal part
of the appellant's case, and part of his rather than his opponent's
defense; 8) Questions of fact, as distinguished from those of law, are
not normally accepted as proper bases for review; 9) The Supreme Court
will defer to certain executive and legislative actions by classifying
issues otherwise proper as "political questions" and will not review
such questions; 10) Challenged statutes carry a presumption of validity;
11) If a case brought for review can be decided on other than constitu-
tional grounds, it will be so decided; 12) The Supreme Court will not
impute illegal motives to lawmakers; 13) If a statute is held unconsti-
tutional, where possible such determination will be limited to the
offending section; and 14) Laws may be evil, stupid, or tyrannical, but
unless they violate the Constitution they will not be struck down.39
The selection of Supreme Court Justices follows the same procedure
as that designed for the selection of all federal judges. Because of
39
Abraham, Judicial Process, pp. 355-376.
-18-
the national scope of the Supreme Court and the importance of its de-
cisions, there are important differences. Clearly, the input of indi-
vidual Senators and local party organizations is reduced to a minimum.
While it is still possible to reject a nominee for the Supreme Court,
the grounds must be other than the invocation of Senatorial courtesy or
political party considerations. The political party of the nominee
remains a factor in the original selection, but the question of the
coincidence of the nominee's values and those of the President become
much more important in the selection decision.40 Further, the process
of screening and examination of the nominee is more detailed and the
hearings before the Senate Committee on the Judiciary are of much greater
importance. The nominee's judicial values and attitudes, his probity
and intellectual accomplishments, and his past activities are carefully
scrutinized. Moreover, it is rare that any sitting judge will comment
on the nominee, for that judge may become a colleague of the nominee or
may have his decisions reviewed by the nominee. Finally, while the
President and his advisors have greater independence in the selection
process, the potential list of candidates is circumscribed due to the
demands for excellence which the importance of the Supreme Court in our
system requires.
Other federal courts
The District Courts in the United States, the Courts of Appeals,
and the Supreme Court are the best known of the federal courts, but there
are several other courts, of both general and specific jurisdiction,
40
Peltason, Federal Courts, p. 32.
-19-
which are part of the federal judicial system. These courts can be
divided into two general classifications, legislative courts and con-
stitutional courts, the latter including the courts already mentioned.
The difference between the two is based on the nature of the power under
which they were created. Constitutional courts were created under the
constitutional grant of power to Congress to establish inferior federal
courts in Section 1 of Article III and Section 8 of Article I. Legis-
lative courts were created under the Congressional legislative power
found in Article I, Section 8 of the Constitution dealing with such things
as its powers over the Territories.
The constitutional courts
The District Courts in the District of Columbia and in the Common-
wealth of Puerto Rico are exactly like the District Courts in the fifty
states. Their jurisdiction covers the same matters, judges sit for life
(good behavior), and are paid the same as other District Court judges,
and these courts share their authority with local institutions of judicial
42
power.
The other constitutional courts not previously mentioned are all of
a specialized nature. The busiest of these is the Court of Claims. The
Court of Claims consists of seven judges who sit in Washington, D.C.,
and fifteen commissioners who act as trial judges and sit in any part of
the country most convenient to the parties. The commissioners hear cases
and prepare their opinions, appeals from which may be taken to the judges
41
The United States Courts, p. 7.
42
H Ibid., p. 7.
-20-
of the Court of Claims. These appeals are either heard by panels of
three judges or by the Court sitting en banc. All appeals from the
decisions of the Court of Claims are heard by the Supreme Court on writ
of certiorari. While the jurisdiction of the Court covers a variety of
cases, all involve suits by individual citizens or corporations against
the federal government for money damages where Congress has specifically
waived the sovereign immunity of the United States.
The United States Court of Customs determines controversies con-
cerning the classification and valuation of imported merchandise for the
purpose of assessing customs duties. The Court consists of nine judges
and is divided into three divisions of three judges each. No more than
five of these judges may be from any one political party. The Customs
Court usually sits in New York City, but may sit from time to time at
other major ports of the United States.
The United States Court of Customs and Patent Appeals also sits in
New York City and is the forum for appeals from the Customs Court. The
Court of Customs and Patent Appeals also reviews decisions of the Patent
Office and the United States Tariff Commission. Appeals from this court
are taken to the Supreme Court on writ of certiorari. The Court consists
of four associate judges and one Chief Judge.
43
Ibid., p. 8.
44
Reimer, Guide to Court Systems, pp. 11-12.
45
Ibid., p. 12.
-21-
The legislative courts
Included among the legislative courts are the District Courts for
the Canal Zone, Guam, and the Virgin Islands. The judges of these courts
are appointed for terms of eight years, and unlike the judges of the
constitutional courts, may have their salaries reduced during their terms
of office. These District Courts all have one judge each. The juris-
diction of these courts is not limited to the types of cases defined by
the Constitution as within the federal judicial power, but includes all
types of cases. These courts do not share their judicial power with any
local judicial agency, and may be given duties which are not strictly
judicial in nature. All appeals from the decisions of these District
Courts are heard in the Courts of Appeals.
Although not technically part of the federal judicial system, the
United States Tax Court and the United States Court of Military Appeals
function in a judicial capacity. The Tax Court decides controversies
between taxpayers and the Internal Revenue Service involving the under-
payment of federal income, gift, and estate taxes. Its decisions are
appealable by right to the Courts of Appeals and are also subject to
further review by the Supreme Court on writ of certiorari. The Tax
Court is made up of sixteen judges who are appointed for terms of fifteen
years. A Chief Judge is responsible for the administration of the Court
and is elected by the judges for a term of two years. There are also
five commissioners, appointed by the Chief Judge, who form the Small Tax
Division, headed by a judge appointed by the Chief Judge. The Court is
46
The United States Courts, p. 7.
-22-
divided into divisions for hearing cases. The office of the Tax Court
is in Washington, D.C., but it hears cases in 110 cities with each pre-
sided over by a single judge or commissioner.
Court martial decisions in the armed forces are referred to a Board
of Review within the Defense Department. Appeals from the Board of
Review are heard by the United States Court of Military Appeals. The
Court sits in Washington, D.C., and consists of three judges from civilian
life appointed for terms of fifteen years. Review by this court is dis-
cretionary in some cases and required in others. For example, all death
4R
penalty cases must be reviewed.
The following diagram is a simple picture of the federal court system
for easy reference. The labeling is self-explanatory. The Court of
Military Appeals is not included, for its decisions are reviewed within
the Executive branch of government. The connecting lines represent the
49
routes of review.
Administration of the Federal Court System
Much of the day to day business of the courts is done by adminis-
trative and legal staff assistants within each court, and long-term
planning is done by specifically designed administrative bodies. No
examination of the federal judicial system would be complete without
some mention of their activities.
47Ibid., pp. 9-10.
48
Reimer, Guide to Court Systems, p. 13.
49
Ibid., p. 19.
-23-
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Court Support Personnel
The personnel assigned to the federal courts can be divided into two
broad categories. The first is that of the court clerks and their staff.
The clerk's staff is responsible for the day to day operation of the
courts and is in charge of the almost overwhelming flow of paperwork.
The clerk's staff performs a variety of functions, including the docket-
ing of cases, receipt of documents and notification of parties, calendar-
ing cases for hearing, attending to the publication of the court's
decisions, handling motions for judicial action, and overseeing the legal
libraries which almost all federal courts maintain.50 The clerks see
that the parties are kept aware of the requirements of prosecution of
their actions, and that the judges are kept aware of their assignments.
The second category of court support personnel consists of those who
provide the judges with legal assistance. Law clerks are typically recent
law school graduates with outstanding records. Although the practice
varies from court to court, most law clerks are selected by the indi-
vidual judge for whom they work. These appointments are temporary, two
years being the usual maximum, and the salaries of the law clerks are
paid out of the general appropriation for the federal courts. The duties
of the law clerks usually include researching questions of law, preparing
legal memoranda for the judges, and occasionally preparing draft opinions
for the judges. Since the early 1960's, particularly in the Courts of
Appeals, the position of staff attorney has developed. Again practice
varies, but these lawyers are usually older, receive higher compensation,
and serve longer terms. In some courts, the position of staff attorney
50
Langner and Flanders, Internal Procedures, pp. 67-68.
-25-
is permanent. Unlike the law clerks, staff attorneys service the entire
court rather than one judge. Their duties may include those of law
clerks, but in addition they often process prisoner petitions, decide
simple, unopposed motions, and prepare final opinions, all under the
supervision of a judge. The growth of the staff attorney position has
developed in response to the exploding caseload in the federal courts.51
The Administrative Office of the United States Courts
The Administrative Office of the United States Courts performs the
administrative duties of the federal court system. It is headed by a
Director appointed and supervised by the Chief Justice of the Supreme
Court. The Office supervises referees in bankruptcy, probation officers
and other court personnel, disburses the operating funds of the courts,
and prepares reports and conducts surveys related to the operation of the
court system. The Federal Judicial Center is the planning and research
arm of the Administrative Office. The Center conducts research, makes
recommendations for reform, and educates and trains new federal judges.52
The Judicial Conference of the United States
The Judicial Conference is charged with the responsibility of re-
solving administrative problems involving the circuits, making recommen-
dations to Congress concerning legislation affecting the federal judicial
system, and examining the conduct of the federal judiciary. The Judicial
51 Ibid., pp. 69-73.
52
Reimer, Guide to Court Systems, p. 17.
-26-
Conference is required to meet once each year, although it presently
meets twice a year. The Conference is composed of the Chief Justice of
the Supreme Court, the Chief Judges of the Courts of Appeals, the Chief
Judge of the Court of Customs and Patent Appeals, the Chief Judge of the
Court of Claims, and a District Court judge from each circuit chosen by
the Court of Appeals judges for a term of three years at the annual
meeting of the Judicial Conference of the circuit.53
Administrative Bodies on the Circuit Level
Each circuit has a Judicial Council made up of the judges of its
Court of Appeals. It meets semi-annually to efficiently dispose of the
caseload in each district within the circuit. Its primary duty is the
assignment of judges. Additionally, each circuit has a Judicial Con-
ference, which consists of the judges from the Courts of Appeals and
District Courts and invited members of the federal bar within the cir-
cuit. The Conference meets annually to discuss common problems, recommend
reforms for the improvement of the administration of the courts, and
conduct seminars for the newly-appointed judges.54
Process and Procedure: The Paper Journey Through the System
It would be impossible to give a fully detailed analysis of the
procedures of the federal courts in a relatively short presentation.
The guidelines for processing cases are the Federal Rules of Civil
53Ibid., p. 16.
Ibid., p. 17.
-27-
Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of
Appellate Procedure, portions of Title 28 of the United States Code, and
other more specialized rules. The rules are prescribed by the U.S.
Supreme Court and must be reported to the Congress by the Chief Justice.
Most courts also maintain local rules which vary from but are not in
conflict with the general provisions. As indicated, there are different
rules for civil and criminal cases. Instead of a detailed and technical
review of all rules of procedure for the federal courts, a good idea of
what happens can be gained by following a case through the judicial
system. A simple civil action will serve as our example, such as an
action brought by a Florida citizen against a Texas citizen for the
specific performance of a contract, for our interest is in the general
provisions rather than special circumstances. We will assume that one
of the parties to the action will choose to seek review of the decision
of the court, and that there is a legal basis for such review.
Civil actions are commenced in the District Courts by filing a
complaint with the clerk of the court.* This complaint must contain a
short and plain statement of the grounds upon which the court's juris-
diction is based, a statement of the claim showing that the pleader is
entitled to relief, and a demand for judgment for relief to which the
pleader deems himself to be entitled (FRCP, 8). As soon as the complaint
is filed, a summons is issued by the clerk and served by a U.S. Marshal
on the named defendant. The summons, which includes a copy of the
*Repeated citation to the Federal Rules of Civil Procedure and the
Federal Rules of Appellate Procedure would be cumbersome. In the
following discussion, where appropriate, references to the above will
be within parentheses and abbreviated respectively as FRCP or FRAP with
the number of the relevant rule as follows: (FRCP, 3).
-28-
complaint, states that the defendant must respond or face a judgment
against him by default. While the exact nature of the required service
depends upon the legal character of the defendant, unless the defendant
can not be found, service is normally personal. The Marshal or other
authorized person making service then files with the court proof of
service upon the defendant. This is called return (FRCP, 4).
The defendant must file his answer to the complaint with the court
within twenty days of the service of the summons and complaint (FRCP, 12),
The answer must contain denials of the allegations of the complaint,
statements that the defendant is without sufficient knowledge to respond
to the allegations, and/or any affirmative defenses which deny the legal
impact of the allegations. Any allegations which are not answered in this
way are deemed admitted as true (FRCP, 8). These pleadings are filed
with the clerk of the court and the parties see to the service of copies
upon each other.
When the answer is filed, the plaintiff has twenty days to file and
serve on the defendant a reply which may deny any counter-claim the
defendant may have raised in his answer. The defendant may then file an
answer to the reply. In most cases, this closes the pleadings (FRCP, 7).
Either party may file motions for judgment on the pleadings, to make the
pleadings more definite, or to strike a portion of the pleadings. These
motions are disposed of before the trial begins (FRCP, 12).
When the complaint was originally filed, the action was given a file
number and docketed, entered on the brief record of the proceedings in
court, by the clerk's office. It thus became part of the flow of
litigation in the court. The action is not yet scheduled for trial,
for the Federal Rules of Civil Procedure are designed to limit the
-29-
subjects which will be at issue. There are numerous provisions for pre-
trial discovery to give each party an opportunity to learn about, dis-
cuss, and limit the disagreement between them (FRCP, 26-37). The
element of surprise has been substantially reduced in federal actions.
Moreover, a great deal of effort is usually expended by the attorneys to
negotiate a settlement out of court on completely private terms, and
such a settlement may occur even after the trial has begun. The courts
encourage the settlement of cases to reduce their caseload and the level
of acrimony.
In the event that no settlement is reached, and all pleadings have
been filed, motions disposed of, and pre-trial discovery completed, the
action is ready to be scheduled for trial. In virtually all federal
trials, the parties have a right to trial by jury. This right is not
automatic, however, for trial by jury must be demanded in writing, filed
with the court and served on all other parties to the action. If this
demand is not made, the right to trial by jury is waived, and the case
is heard by the judge (FRCP, 38). The action is then either designated
as a jury action or as a court action (FRCP, 39). The action is then
placed on the trial calendar for hearing and a date is set (FRCP, 40).
The attorneys must then be prepared to present their case on the date
specified. This does not necessarily mean that the case will then be
heard, for a negotiated settlement is still possible. There may also be
requests filed for postponements by the parties, or the estimate made by
the clerk of the time needed for trying preceeding cases may be in-
accurate, requiring the rescheduling of the trial date. Eventually,
however, the action will come to trial.
men
ru
-30-
It seems unnecessary to give an account of the actual conduct of the
trial. Television has given most people a reasonably good notion of
what occurs in court, except that there is a good deal less drama and
much more tedium in reality. Examination and selection of a jury, if
one is involved, presentation of evidence through witnesses and docu-
tary presentation, opening and closing statements of the attorneys,
lings on objections, and instructions given to the jury by the judge
are all quite familiar. At the close of the trial, if the action is
tried by a jury, the jury retires to deliberate, and a verdict is sub-
sequently rendered. If the action is tried by a judge, he usually takes
the case under advisement and proceeds with the next case scheduled.
He will then prepare a decision containing both findings of fact and
conclusions of law thereupon (FRCP, 52). In more and more cases today,
the judge will announce the decision from the bench rather than prepare
a written opinion. After the decision has been announced, judgment is
entered by the clerk of the court (FRCP, 54 & 58). In the absence of
any appeal, the judgment would then be enforced.
We have assumed in our case that appeal is taken from the decision
of the District Court. For a brief time, the responsibility for the
case is divided between the District Court and the Court of Appeals.55
Appeals are usually commenced by filing a notice of appeal with the clerk
of the District Court within sixty days of the entry of judgment. This
notice of appeal'contains a specification of the party taking the appeal,
designates the judgment or portion thereof from which appeal is taken,
and names the court to which appeal is taken. The clerk serves notice
55
Langner and Flanders, Internal Procedure, p. 11.
-31-
of the appeal on the other party or parties to the action (FRCP, 3 & 4).
While not required in several circuits, notice of appeal is often also
served on the clerk of the Court of Appeals. The party taking the appeal
is required at the same time to file a bond for the costs of the appeal,
usually $250, with the clerk of the District Court (FRAP, 7).
In order to prevent the enforcement of the judgment of the District
Court, the appellant must also apply for a stay of judgment pending
appeal in the District Court. If the application is denied, the appel-
lant may seek a stay from the Court of Appeals (FRAP, 8). A record of
the proceedings in the District Court must be prepared to bring the
appeal to the higher court. The record consists of all papers and ex-
hibits filed in the District Court, a certified copy of all docket
entries (the history of the case) made by the clerk, and a transcript
of all or part of the proceedings prepared by a District Court reporter.
Within ten days of filing the notice of appeal, the appellant must order
the transcript from the reporter and make arrangements for payment of
the cost of the transcript (FRAP, 10). The responsibility for physi-
cally assembling the record for appeal lies with the clerk of the District
Court. When the record is complete, in any case within forty days of the
filing of the notice of appeal, the clerk of the District Court transmits
it to the clerk of the Court of Appeals with an endorsement of the date
of transmission (FRAP, 11). The responsibility of the District Court is
then concluded.
Within the time allowed for the transmission of the record from the
lower court, the appellant pays a docket fee to the clerk of the Court
of Appeals, and the clerk enters the appeal upon the court's docket.
Upon receipt of the record, it is filed by the clerk, and all parties
-32-
are notified of the date of filing (FRAP, 12). The case now becomes
part of the business of the Court of Appeals.56
Within forty days after the record has been filed, the appellant
files a brief with the clerk and serves copies of it on all other parties
to the action. The appellee has thirty days after service of the apel-
lant's brief to file and serve his own brief. The appellant will then
have fourteen days to file and serve a reply brief. Failure to file
briefs may result in the dismissal of the appeal or disallowance of oral
argument (FRAP, 31). These briefs are the written legal arguments of
the parties. They contain a statement of issues involved on appeal, a
statement of the facts of the case and the proceedings in the lower
court, the legal argument of the parties, and a conclusion stating the
relief sought (FRAP, 28). In addition, the appeallant is required to
file an appendix to his brief which includes the relevant docket entries
in the lower court proceedings, findings or opinions, the judgment or
order appealed from, and any other parts of the transcript to which the
particular attention of the court is directed (FRAP, 30).
The record and the briefs of the parties constitute the bulk of the
materials which the Court of Appeals will consider in arriving at its
decision. The court will not hear the testimony of witnesses nor in
almost all cases reconsider the facts as determined by the lower court.
As pointed out previously, the Courts of Appeals hear cases in
panels of three judges. Once the appeal is docketed, either the Chief
Judge of the circuit or the clerk assigns the case to a randomly selected
56
Copies of all papers filed with the clerk of the Courts of Appeals
are served on all other parties to the action.
-33-
and constituted three-judge panel. In making the assignment, the Chief
Judge or the clerk tries to accomplish an even distribution of the case-
load. The record and the briefs of the parties are then distributed to
the three-judge panel. Most Courts of Appeals now employ a screening
procedure to speed up hearings and reduce the backlog of cases. Frivolous
appeals without merit may be dismissed, some appeals may be decided
without oral argument, and others may require limited oral argument only.
These decisions, regardless of protestations to the contrary, are within
the discretion of the judges. In any case, after consideration of the
record and the briefs, if one of the judges decides that oral argument
is necessary, oral argument will be held.
In the event that oral argument is to be held, the clerk's staff
then schedules the appeal for hearing, and the schedule is then submitted
for the approval of the hearing panel. This scheduling is based on the
experience of the court in prior sessions regarding the amount of time
58
necessary to hear appeals. The clerk then advises the parties of the
time and place at which oral argument is to be heard (FRAP, 34).
Prior to oral argument, the judges read the record and the briefs
submitted by the parties. In addition, they often read memos prepared
for them by their law clerks or by staff attorneys dealing with the legal
issues presented. At one time, oral argument of a case on appeal was
the most important element of the case. The time allowed each side was
almost unlimited, and because there was very little briefing, the bulk of
57
William L. Whittaker, Description of the Operating Procedures of
the United States Court of Appeals for the Fifth Circuit (Washington.
B.C.: Federal Judicial Center, 1973), pp. 5-6.
58Ibid., p. 7.
-34-
the parties' legal argument was contained in the oral presentation.
Today, except in extraordinary cases in which prior approval has been
granted, the rules limit each side to thirty minutes (FRAP, 34). Each
party, however, rarely has a full thirty minutes for argument. The
judges are active participants in oral argument and frequently inter-
rupt the attorneys to ask questions or attack weak points in their
argument. The judges may seek to determine the logical extension of an
attorney's argument as applied to hypothetical circumstances. It has
been argued that oral argument adds little to the presentation of a case
on appeal because the legal issues have been covered thoroughly in the
written briefs. Most judges, however, and almost all attorneys, continue
to feel that oral argument is an important aid in sharpening the issues
before the courts.
Decision procedures vary from circuit to circuit, but all follow a
similar general pattern. Usually, at the close of oral argument, the
next case on the calendar is called for argument. Hearings are usually
set for four days each week during the scheduled session. The fifth day
of the week is set aside for the conferences of the judges or for opinion
reading.
At the conference, most often held on the Friday of a hearing week,
the three-judge panel discusses the cases that have been heard during the
week. The simple cases are disposed of first by rapid agreement, and in
those cases an oral decision from the bench will be subsequently an-
nounced. In these cases, the parties are notified of the decision by the
clerk, and no decision or opinion is published. In cases requiring
written opinions limited to a brief exposition of the action of the court
and the precedent relied upon, the court will prepare a per curiam
-35-
opinion. This is an opinion of the entire court rather than authored by
an individual judge. These opinions are unsigned and inay even be pre-
pared by a law clerk or staff attorney. They are published in the
official reports of the Courts of Appeals, the Federal Reporter.59 If
the requirements of informing the legal community, as well as the parties
to the action, are not great, a form of opinion usually called a
"memorandum" is employed. The memorandum decision is not published, and
it may not be cited as precedent in future cases. The court may also
prepare a simple "order" which is a judgment without explanation that
merely disposes of the issue in controversy. This is most often a simple
statement that the decision of the lower court is affirmed.60 The burden
of increased caseload in the Courts of Appeals has made the use of these
shortened forms of decision more popular with the judges.
The most characteristic form of decision in the Courts of Appeals,
traditionally associated with appeals tribunals, is the signed, written
opinion. At the post-hearing conference, the three judges discuss the
case and arrive at a tentative decision. If all three agree, the most
senior judge assigns the writing of the opinion. If there is a split,
the most senior judge of the majority of two assigns the opinion. An
attempt is made to assign opinion writing so that the burden is evenly
distributed. With the research aid of his law clerk, the assigned author
then prepares a draft opinion which will be circulated to the other
members of the panel. Any revisions which either all or a majority can
accept are then incorporated into the opinion. If there is any dissent,
59
Richardson and Vines, Politics of Federal Courts, p. 121.
Langner and Flanders, Internal Procedures, pp. 51-52.
-36-
the disagreeing judge has the option of preparing a dissenting opinion.
The preparation of these opinions can take up to six months or longer.
When the opinion or opinions are complete, the judgment of the court is
announced, and the opinions are read from the bench.
All full written opinions are published in the official reports of
the court. The criteria for publication, now generally agreed to by all
of the circuits, also determine whether a case will be decided by a full,
signed opinion, a per curiam opinion, or one of the simplified forms of
decision. Generally, opinions will be published where one of the fol-
lowing is true: 1) the opinion establishes, alters, or modifies an
existing rule of law; 2) the opinion involves a legal issue of continuing
public interest; 3) the opinion criticizes existing law; 4) the opinion
involves a historical review of the law that has not been previously
presented; 5) the opinion either solves or creates a conflict in the law;
and 6) the opinion involves a case in which there is a published opinion
in the lower courts.
After the court renders its judgment, regardless of the form that
judgment takes, the clerk notes the judgment on the docket which con-
stitutes entry of judgment. On that date, the clerk mails a copy of the
opinion, or if there is none the judgment and notice of the date of entry
of judgment, to all parties (FRAP, 36). The mandate of the court, con-
sisting of a certified copy of the judgment and a copy of the opinion if
any, and any direction as to costs, is issued twenty-one days after the
entry of judgment (FRAP, 41). This mandate is the binding direction of
the Court of Appeals, either to the parties or to the lower court, that
its decision be complied with.
61 Ibid., p. 51.
-37-
Again, we have assumed that appeal will be taken from the decision.
In this situation, the party seeking review in the Supreme Court must
apply for a stay of mandate pending application to the Supreme Court for
a writ of certiorari. Notice of this application for stay is served on
all parties, and the period of the stay is usually thirty days. If the
clerk receives notice from the clerk of the Supreme Court that the
appellant has filed an application for certiorari in that court, the stay
continues until final decision by the Supreme Court. If the Supreme
Court denies certiorari, the mandate issues immediately (FRAP, 41 ).62
Review in the Supreme Court in our case is initiated by filing a
petition for writ of certiorari with the clerk of the Supreme Court.
This petition will contain identification of the judgment appealed from,
a short brief stating the errors in the court below with legal citations
in support, a prayer for issuance of the writ, and most important, a
showing that the appeal is within the jurisdiction of the Supreme Court
as established by law and self-imposed limitation. Forty copies of the
petition must be filed with the clerk, who then enters the case on the
regular appellate docket and serves notice and copies of the petition
on the other parties to the action. The other parties have thirty days
in which to file a brief in opposition to the petition for certiorari.
We have assumed that our hypothetical case makes its way up the
entire hierarchy of the federal court system, but it must be remembered
that the Supreme Court receives petitions for writs of certiorari in less
than 2 per cent of actions filed in the federal courts. Recall further
that appeals by right to the Supreme Court exist only where constitutional
issues are involved, that the Supreme Court has the discretion to deny
review even in these cases, that about 90 per cent of the Supreme Court
case oad comes up on writs of certiorari, and that the Supreme Court has
developed many working rules which limit review on certiorari to a narrow
range of cases. Our simple case, based on diversity of citizenship
jurisdiction and involving more than the statutory minimum for federal
jurisdiction ($10,000), would thus be rarely found on the Supreme Court
docket.
-38-
The clerk keeps the petition until he receives the opposing brief or for
thirty days from the date of filing. The clerk then distributes copies
of the petition and any opposing briefs to each of the nine justices.
The practice of each justice varies, but most have their law clerks pre-
pare legal memoranda dealing with the legal issues presented by the
petition and brief in opposition. These memoranda are then circulated
among the nine justices.
As stated previously, the normal annual term is thirty-six weeks,
running from early October to late June. The Court hears oral argument
for the first four days in about two weeks of each month. The other two
weeks are reserved for opinion writing and consideration of the cases.63
Each Firday during or preceeding a week in which cases are argued or
opinions announced the justices meet in formal conference. Before the
justices take up the cases which have been argued before the Court, they
consider the applications for review, both appeals and petitions for
64
certiorari. If the justices feel no issue of importance is involved,
the appeal or petition for certiorari will be denied, and the judgment of
the lower court will stand. If four of the justices believe the merits
of the case call for review by the Supreme Court, the petition for cer-
tiorari will be granted and the full record of the case in the lower
court will be forwarded to the Supreme Court. Notice to all parties that
the petition for certiorari has been granted is then issued, and briefs
on the substantive issues of the cases are prepared and filed by both
parties with the clerk and served upon each other. Once the record in
CO
Abraham, Judicial Process, p. 192.
64
Anthony Lewis, Gideon's Trumpet (New York: Vintage Books, 1964)
pp. 31-41 , passim. "
-39-
the Supreme Court is complete and all briefs are filed and served, the
clerk schedules the action for oral argument and notifies the parties of
the date of the hearing.
The procedures for review of briefs, preparation of legal memoranda,
and oral argument before the Supreme Court are much the same as before
the Courts of Appeals. Each side is usually allowed one hour for the
presentation of its case, but the provisions for expanded oral argument
are somewhat more liberal than in the Courts of Appeals. Oral argument
before the Supreme Court is often a grueling experience, for the ques-
tions put by the justices expose the weakest points of each attorney's
argument.
Three Fridays of each month are usually reserved for the formal con-
ference of the justices, lasting from ten in the morning until the late
afternoon. After the applications for review are considered and resolved,
the justices begin discussion of the cases presented at oral argument
during the preceeding week. A formal procedure is followed in these
discussions, the Chief Justice giving his views first, followed by the
rest of the justices in descending order according to their seniority.
At the close of the discussion of each case, a tentative vote is taken,
each justice voting in ascending order of seniority with the Chief
Justice voting last. The Chief Justice, or the most senior member of
the majority when the Chief Justice votes with the minority, then assigns
preparation of the opinion to one of the justices.65 The burden of
opinion writing is spread as evenly as possible, but the Chief Justice
has considerable discretion in assigning opinions so that the special
expertise of a justice can be utilized.
65
Ibid., pp. 39-41.
-40-
Each justice is responsible for the opinions assigned to him. He
prepares a draft opinion with the aid of his law clerks. Once the draft
has been completed, it is circulated among the other justices. The case
may then become a subject of discussion at the Friday conferences again.
Suggestions are passed back and forth, and the opinion continues to be
reshaped until the decision and language draw the support of a majority
of the justices. The language of the opinion is extremely important,
for a moderate, well-reasoned opinion may convert the earlier dissenters.
Because of this shaping process, most Supreme Court opinions are com-
promise documents. Those justices who disagree are free to prepare dis-
senting opinions, and those who agree with the decision of the Court but
do not subscribe to the language or the reasoning of the majority may
prepare concurring opinions.
When the final decision is reached, it is announced orally by the
justices in Court. This occurs on opinion Mondays, those Mondays during
the term when the Supreme Court is not hearing oral argument. All cases
which have been decided are announced, beginning with the most junior
justice. The principal author or authors of the opinions in each case
announce the decision of the Court. The judgment of the Court is then
entered by the clerk in the Supreme Court docket, and the parties are
mailed copies of the opinions. These opinions are then circulated
throughout the legal community by publishing services, published in
pamphlets by the U.S. Government Printing Office, and later printed in
the permanent volumes of the United States Reports and the Supreme Court
Reporter. While a Supreme Court decision may take many forms, in most
Ibid., pp. 185-192, passim.
-41-
cases the decision of the lower court is affirmed or reversed, and the
Supreme Court orders the lower court to proceed in accordance with the
announced decision. In the normal course of events, this mandate is
carried out by the lower court, and the journey of our hypothetical case
through the federal court system is complete.
The description above seems much simpler than reality, for the
various ways in which rehearings, motions, and postponements can delay
the process have been omitted. Even without delaying tactics or special
procedures required in a complex case, the time elapsed from the original
filing of the complaint to the mandate of the Supreme Court would have
consumed well over a year. The cost of this process is a further com-
plicating factor. The expense of the appeal to the Courts of Appeals
alone would preclude most of the public from even making the attempt.*
*It would be rather difficult to provide a general estimate of
the costs of processing an action all the way through the federal court
system. There are too many variables including attorney's fees, travel
expense, and the length and complexity of the trial. Some notion of the
rather large expense involved, however, can be gained from an estimate
of the expenditure involved in appealing a case to the Courts of Appeals
Notice of appeal and the docket fee are each $50; the necessary tran-
scripts run to approximately $300 per day; printed briefs and appendices
would usually cost between $300 and $400; and the average travel expense
in the Fifth Circuit would be about $250. If one adds to this the mile-
age costs and $20 per day fee for witnesses in the District Court, and
at least $40 to $50 for filing and service of each copy of the complaint
in the lower court, the total almost always exceeds $1500 or more. This
does not, of course, include attorney's fees and would apply to a rather
simple case. Attorneys Robert A. Harper and Aaron Green, private
telephone interviews held in Gainesville, Florida, July 8, 1976, and
July 12, 1976, respectively.
-42-
The Courts of Appeals
The Development of the United States Circuit Courts-
Courts of Appeals
Pursuant to its constitutional power to create lower federal courts,
Congress passed the Judiciary Act of 1789.67 This was the basic document
of the federal court system. It provided for the organization of the
Supreme Court and created two tiers of lower federal courts. Thirteen
judicial districts with one court and one judge each were established,
and these districts were organized into three circuits, the Southern,
Middle, and Eastern, each with one court, manned by two Supreme Court
justices and one District Court judge.68 The original jurisdiction of
the Circuit Courts and District Courts consisted of 1) private civil
litigation involving diversity of citizenship; 2) all civil litigation
to which the United States was a party, cases in which $500 or more was
in controversy being tried in the Circuit Courts; 3) all criminal cases
under United States laws to be tried in the Circuit Courts, with minor
offenses tried in the District Courts; and 4) removal jurisdiction from
the state courts. Appellate jurisdiction was by review on writ of error
from final decisions of the District Court in civil cases involving more
than $50 and admiralty and marine cases over $300. 69
As a result of the election of 1800, the Federalists were replaced
in the Presidency and the Congress by the Jeffersonian Republicans. The
671 Stat. 73.
Reimer, Guide to Court Systems, p. 2.
69
Hart & Wechsler, Federal Courts, 39-40.
-43-
last position of Federalist strength was the federal judiciary, and one
month before Jefferson took office, Congress reorganized the lower courts.
The now twenty-three District Courts were reorganized into six circuits,
and specifically designated Circuit Court judges were appointed.70
Enough additional Federalists were appointed to maintain control of the
federal judiciary.
The court reorganization did not last long under the Republican
administration. In 1802, the circuit judges were dispensed with, the
reorganization of 1801 repealed, and the Circuit Courts staffed with one
Supreme Court justice and one District Court judge each.71 There was no
further change in the Circuit Courts until after the Civil War, which
weakened the resistance of the states to the federal courts and broke the
stalemate which had essentially frozen court sturcture since 1789. 72 In
1869, Congress authorized a specifically designated circuit judge for
each of the existing nine circuits73 (the Seventh, Eighth, and Ninth
circuits were actually created in 1866), 74 and each circuit now consisted
of one judge from each of the three types of federal courts. By the same
legislation, the amount of circuit riding done by Supreme Court justices
was substantially reduced.75
°Act of Feb., 13, 1801, 2 Stat. 89.
71Act of April 29, 1802, 2 Stat, 156.
72H
/sis
73,
Herbert Jacob, "The Courts as Political Agencies: An Historical
Analysis, ' 8 Tulane Studies in Political Science (1962), 9.
3
Act of April 10, 1869, ch. XXII, 16 Stat. 44.
74
U.S. Congress, Senate, Committee on the Judiciary, Legislative
Hlstgryof the United States Circuit Courts of Appeals and the Judges Who
jgiyedjunng the Period 1801 Through May, 1972. 92nd Conn.. 2nd jeSs ,
Is /£, 141 , 157, 1 75 .
75
Hart & Wechsler, Federal Courts, 44.
-44-
The Circuit Courts remained unchanged until 1891. In that year, the
Circuit Court of Appeals Act of 1891 was passed. This legislation pro-
vided for the creation of a Circuit Court of Appeals for each circuit,
each with three judges, two of whom were designated circuit judges.
While these courts had appellate jurisdiction, they were also general
courts of record and had no general appellate jurisdiction over the
District Courts. This continued until 1911, and for that twenty year
period there were again two tiers of trial courts in the federal system.
The only change during that time was the creation of a Circuit Court of
Appeals for the District of Columbia in 1893. 78
In 1911, the three tier system of the federal courts as it operates
today was finally established. The Circuit Courts as tribunals of
original jurisdiction were abolished, and the new Circuit Courts of
Appeals of the existing circuits were established as purely appellate
79
courts. The only change in structure since 1911 occurred in 1948 when
the name of the courts was changed to the United States Courts of Appeals
and the most senior circuit judge was made Chief Judge of the circuit
on
with certain administrative duties. In 1929, the Tenth Circuit was
81
established with its own court, completing the system. The only changes
since 1929 have dealt with the creation of additional judgeships for the
Act of March 3, 1891, ch. 517, 26 Stat. 826.
Hart & Wechsler, Federal Courts, 47.
78
Legislative History of U.S. Circuit Courts, 31 .
79
Act of March 3, 1911 , ch. 231 , 36 Stat. 1131 .
on
Act of June 25, 1948, ch. 646, 62 Stat. 870.
O]
Legislative History of U.S. Circuit Courts, 193.
-45-
Courts of Appeals to meet the expanding caseload. These additions have
been provided by increments of one or two judges at a time, or by major
increases in the system by omnibus judges bills.82
The Function and Role of the Courts of Appeals
The most obvious functions of the Courts of Appeals are shared with
other courts, such as ensuring against miscarriages of justice and limit-
ing the scope of conflict in our society, but the Courts of Appeals'
existence within a larger framework also imposes further responsibilities.
These courts must help procure fair trial in the District Courts, make
the rulings of the District Courts within each circuit more consistent,
and help make the administration of justice and the interpretation of law
more uniform throughout the country, a duty shared with the Supreme
Court. The duties of the Courts of Appeals are also substantive, for
these courts evaluate and determine the propriety of decisions of the
lower courts, give administrative leadership, and most importantly, par-
ticipate in the growth, development, and adaption of the common law to
the realities of common experience.
It is useful to look at the Courts of Appeals from the perspective
of the judges, as they see their role. Research in this area by J.
Woodford Howard of the Federal Judicial Center has revealed two major
Op
Richardson and Vines, Politics of Federal Courts, p. 49.
Herbert Jacob, Justice in America: Courts, Lawyers, and the
Judicial Process (2nd ed.; Boston: Little, Brown and Co., 19721
pp. 192-93.
84
Langner and Flanders, Internal Procedures, p. 2.
-46-
and three ancillary role perceptions on the part of federal appeals
judges. One major role was that of the "Adjudicator," in which the
social effects of a decision were stressed.* In this view, judges placed
particular emphasis on the finality of decisions and of finding justice
in each case. This immediate result orientation was tempered somewhat by
a stated allegiance to legal stability and the principles of stare decisis.
The other major role was that of the "Ritualist," in which the decisional
process itself was emphasized. In this view, judging was seen as an end
in itself, and great importance was placed on the production of satis-
factory written opinions. The reasoning of the decision was thought to
be more important than the specific results in the individual case.
The most traditional of the ancillary role perceptions was that of
the "Administrator." In this view, the judges stressed their adminis-
trative function in the federal judicial system, particularly supervision
of District Courts and administrative agencies and winnowing less impor-
tant cases from the appellate stream. Many judges also believed they had
a role to perform as an "Educator." The judges maintained that there was
an obligation to educate the bar, the administrative agencies, and the
higher state courts as to the demands of justice and enlightened law.
They also believed theyhad a responsibility to make the general public
more familiar with the ways in which the legal system could solve prob-
lems. The most controversial role perception was that of the "Lawmaker."
The view of the judge as legislator, while acknowledged by many judges,
J. Woodford Howard, Role Perceptions on the U.S. Courts of Appeals
for the 2nd, 5th, and D.C. Circuits (Washington. D.C: Federal .Inri'vial
Center, 1973) , pp. 4-15.
*The titles used are Howard's.
-47-
received cautious endorsement by few. Only the most activist of the
Court of Appeals judges accepted this view of their role within the
system.
Another approach to the function or role of the Courts of Appeals
emphasizes its relationship to the other courts in the system. First,
while subject to the review of the Supreme Court, the Courts of Appeals
are largely independent. The number of cases reviewed by the Supreme
Court is so small that the primary locus of systematic judicial review
is in the Courts of Appeals. Therefore, these courts have the main
responsibility for supervising the application and interpretation of
national and state law in the District Courts and administrative agencies.
A further result of the small volume of cases which reaches the Supreme
Court is that the Courts of Appeals are the main providers of finality
in the federal judicial system. These courts also serve to filter cases
in the system and to shape issues on the way to the Supreme Court. The
Courts of Appeals also actively engage in policy formation, for they
develop areas of specialization in which they achieve almost total
independence.
Regardless of the perspective, clearly the traditional view of the
Courts of Appeals as mere middlemen between the District Court trial
level and the Supreme Court should be discarded. Rather, they are in-
dependent sources of power and policy which effectively formulate national
law residual ly and regionally. The Courts of Appeals perform functions
OC
J. Woodford Howard, The Flow of Litigation in the United States
Courts of Appeals for the Second, Fifth, and District of Columbia
Circuits (Washington, D.C.: Federal Judicial Center, 1973), pp.
65-75. HH
-48-
which for reasons of constituency, procedure, caseload, and interest, can
not be performed by other federal courts.
The Business of the Courts of Appeals
The business of the Courts of Appeals consists almost entirely of
appeals from decisions of the District Courts and certain administrative
agencies. It is useful to have some information about the volume of
cases that appear before these courts, the reasons for that volume, and
the type of cases heard.
The Courts of Appeals handle appeals from the District Courts in
four major areas; United States criminal cases, United States civil
cases, private civil cases, and bankruptcy proceedings. Along with
appeals from administrative agency rulings, the above make up the bulk of
the appeals caseload. The types of cases heard have changed little,
but there has been a marked change in the volume of work for the Courts
of Appeals. In 1960, there were 87,421 filings in federal District
Courts, and by 1972, the filings were up to 143,216. This increase is
substantial, but it is dwarfed by the explosion in the appeals caseload.
In 1960, 3,899 appeals were taken to the Courts of Appeals, but in 1972,
there were 14,535 appeals taken.88 This increase has overburdened the
Courts of Appeals, for a similar expansion in the number of authorized
judgeships has not taken place. In the 1960's alone, the caseload
87
ao c a Wi111nSI?afr°th: "Survey of the United States Courts of Appeals, '
42 Federal Rules Decisions 243, 294 (1967).
on
Henry J. Friendly, Federal Jurisdiction: A General View (New
York: Columbia University Press, 1973), p. 31. ~
-49-
increased approximately 200 per cent while there was a 43 per cent in-
89
crease in the number of judgeships. By the mid-1970's, with no further
increase in judges, the caseload had increased another 120 per cent.90
As a result of this appeals explosion, the time required for disposal of
cases in the Courts of Appeals has lengthened considerably creating a
91
growing backlog of pending cases.
There are many possible explanations for the expanded caseload,
which has made the Courts of Appeals proportionally the busiest courts in
the system. Over the long term, the appeals explosion is part of the
general increase in the resort to court action. The urbanization of
America concentrated large numbers of people, upset traditional patterns
of social relations with an attendant increase in criminal activity, and
involved the courts with what were formerly private social matters.
The federal judicial system has received increased usage as a result of
the growth of population, increased personal wealth, increased personal
mobility, car ownership and use, and increased economic activity.93 Thus,
the courts are being employed more often as an avenue of redress for
social, economic, and political problems. In particular, the Courts of
Hart & Wechsler, Federal Courts, 56.
90
Commission on Revision of the Federal Court Appellate System,
Structure and Internal Procedures: Recommendations for Change (Washing-
ton, D.C.: Commission on Revision of the Federal Court Appellate System,
1975) , p. 1 .
91
Annual Report of the Director of the Administrative Office of the
United States Courts (Washington. D.C.: Administrative Office of the
United States Courts, 1964), pp. 132-33.
92
Jacob, Courts as Political Agencies, pp. 38-41.
93
Christopher A. Manning, Judgeship Criteria: Standards for
Evaluating the Need for Additional Judgeships (Chicago": American
Judicature Society, 1973), p. 3.
-50-
Appeals have suffered from an increased rate of appeals from an already
growing caseload in the District Courts. Specifically, the growth of
criminal appeals may be traced to the passage of the Criminal Justice Act
in 1964 which provided free legal counsel for all indigent defendants.94
At present, although the rates of appeals vary substantially, almost one
in three of all contested District Court decisions are appealed.95
The heavy caseload has had a real impact on the Courts of Appeals.
Many of the screening procedures designed to speed the flow of litigation
were developed in the 1960's when the appeals explosion began. It is
possible that these and other short cut procedures have had some influence
on substantive decisions. Further, evidence suggests that fairly
routine trials in the District Courts are often transformed in the Courts
of Appeals into major civil liberties cases.96 The care with which these
cases must be heard is threatened by the increasing backlog of cases and
the resulting demand for speed. One might argue that the lower federal
courts are no longer physically able to do their appointed work.
The Court of Appeals for the Fifth Circuit
The Court of Appeals for the Fifth Circuit is in many ways the
most interesting and perhaps the most important of all the Courts of
94
Jerry Goldman, "Federal District Courts and the Appellate Crisis
57 Judicature 211, No. 5 (December, 1973), 211-13.
95
Howard, Flow of Litigation, p. 14.
Richard J. Richardson and Kenneth N. Vines, "Review, Dissent and
the Appellate Process: A Political Interpretation," 29 Journal of
Politics 597 (1967), pp. 600-01.
-51-
Appeals.* The Fifth Circuit is the largest of the Courts of Appeals,
with the largest caseload and the largest population served. The prob-
lems of the Courts of Appeals are most acute here and have had the
greatest impact on internal procedures. While these problems are largely
administrative and procedural, including overworked judges, increasing
backlogs of cases, delay in hearing cases, coordination with the other
circuits to arrange for aid through the assignment of visiting judges,
lack of cohesion and loss of collegia! nature of the court, their solu-
tion has constantly engaged the interest of the Administrative Office of
the United States Courts and the Judicial Conference of the United States.
Failure to solve the problems of the Fifth Circuit raises serious ques-
tions about the continued functioning of the entire judicial system.
Thus, the Fifth Circuit serves as something of a laboratory for attempts
to modernize the Courts of Appeals while maintaining the quality and
tradition of their justice.
The Fifth Circuit is unique in a substantive as well as an institu-
tional sense. It has been at the center of one of the most difficult
legal, social, and political problems in our recent experience, the
redefinition of the relationship between blacks and whites. In the
1950' s and early 1960's, a large portion of civil rights cases were
decided here. Precisely in that section of the country where racial
relations were both an essential part of the culture and most out of
step with the demands of justice and the times, the Fifth Circuit Court
of Appeals was the final arbiter. The slow-moving but eventually
*Unless otherwise specified, all references to a court in this
section refer to the United States Court of Appeals for the Fifth
Circuit. The term "Fifth Circuit" is used hereinafter to refer both
to the Court and to the organizational division.
-52-
successful enforcement of national law and policy in the South was in no
small degree the result of the judicial statesmanship of the Fifth
Circuit.
The Fifth Circuit was originally established as part of the court
reorganization of 1801. At that time it consisted of South Carolina,
North Carolina, and Georgia. In 1866, the circuit was altered to contain
the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and
Texas. The only subsequent addition was that of the Canal Zone in 1948.
From the date of its creation, forty-three judges have served on the
Court, and the size of the Court has grown from the original compliment
of three judges in 1801 to its present roster of fifteen active appeals
97
judges. The greatest growth in size has occurred since 1948 when the
Court was expanded to six judges. Today, the Fifth Circuit Court of
Appeals is the largest English-speaking court in the world.98 The cen-
tral office and courthouse is located in a new Italian Renaissance
building in New Orleans, Louisiana. The majority of its sessions are
held there. The Court also holds sessions for from one to three weeks
each year in Houston and Fort Worth, Texas; Atlanta, Georgia; Mont-
gomery, Alabama; Jacksonville, Florida; and Jackson, Mississippi.
The business of the Court is not unlike that of the other Courts of
Appeals, but there are local peculiarities which are worth mentioning.
The most obvious characteristic of the Court's business is its volume.
Although only one of eleven, the Fifth Circuit decided almost 25 per cent
97
Legislative History of the U.S. Circuit Courts, 3, 105-17.
98
Leslie A. Steele, "A New Home for the Fifth Circuit Court of
Appeals," 47 Florida Bar Journal 450 (July, 1973).
-53-
of all cases disposed of after hearing or submission in the Courts of
99
Appeals by 1970. The primary litigant in these cases, both as appel-
lant and appellee, has been the United States government, reducing but
not eliminating the Court's role as a forum for private litigation. The
Court also handles more cases involving states or state agents as parties
than do the other Courts of Appeals, and it hears a disproportionate
share of civil liberties cases. The fields in which the Court has been
most active include admiralty, civil rights, federal taxation, labor
relations, insurance, and prisoner petitions.
Another view of the Court's business may be had by examining rates
of appeal and reversal in the Fifth Circuit. Approximately 30 per cent
of District Court decisions and less than 2 per cent of administrative
orders are appealed. Of these appeals, the Court reverses or otherwise
modifies the lower decision after hearing in about one-third of the cases.
The rate of appeal is rather low, but the rate of reversal is the highest
among the Courts of Appeals. In particular, the decisions of the Tax
Court, the National Labor Relations Board, and the District Courts in
civil rights cases were subject to the highest reversal rate.101 Of
special interest is the difference in the Court's reversal rate of cer-
tain districts within the circuit. There is real evidence of an urban-
rural split within the Fifth Circuit, particularly with regard to civil
rights cases. The districts with the highest rates of reversal were
Northern Florida, Northern Georgia, Southern Mississippi, and Southern
99
Howard, Flow of Litigation, p. 3.
100Ibid., pp. 6-7, 9-12.
01 Ibid., pp. 13-29, passim.
-54-
Alabama. The districts with the lowest reversal rates were Eastern
102
Louisiana and Southern Texas. This difference in reversal rates
illustrates the diversity of the circuit, in this case between the rural
Old South and the large urban areas of New Orleans and Houston. The
Court's responsibility of representing national judicial power in the
region and maintaining uniformity in the law is thus particularly
difficult.
Another approach to the business of the Court is to examine the rate
of dissent on the Court, indicating the social and philosophical degree
of disagreement among the judges. It must be noted that there is much
less dissent in the Courts of Appeals than in the Supreme Court. While
the regional base of the circuits may provide judges who have similar
attitudes, the main reason for the lower reversal rate is a function of size.
The Supreme Court has nine justices, and dissent is often collegial. The
vast majority of cases in the Courts of Appeals are heard by three-judge
panels, and dissent is of necessity a lonely experience. Thus, it is
surprising that the Fifth Circuit rate of dissent of 14 per cent is the
highest among the Courts of Appeals. The most notable aspect of
dissent in the Fifth Circuit is its fairly consistent nature, for dis-
sent is most likely when District Court decisions are reversed, occurring
with the greatest frequency in civil liberties cases. Dissent in the
Fifth Circuit therefore usually constitutes an expression of illiberal
10W,p. 31.
103
Burton M. Atkins, "Judicial Behavior and Tendencies Toward Con-
formity in a Three Member Small Group: A Case Study of Dissent Behavior
on the U.S. Courts of Appeals," 54 Social Science Quarterly 41 (June,
1973). " J~
104
Richardson and Vines, Review, Dissent, p. 609.
-55-
feeling, for the dissent upholds District Court decisions which deny
claimed civil liberties. The major exception to the rule is labor cases
lflR
in which dissent is usually pro-labor.
The Courts of Appeals are all operated according to the same broad
procedures, previously discussed. Each one, however, has considerable
freedom in arranging its internal procedures dealing with the rules under
which cases will be heard and processed and the personnel who will aid
the judges in fulfilling their responsibilities. The local peculiarities
of each court usually reflect the problems faced by each court, and this
is certainly true of the Court of Appeals for the Fifth Circuit. The
following examples of Fifth Circuit operating procedure reveal the con-
cern with its heavy caseload and growing backlog of pending cases.
The staff of the Court is organized much the same as other Courts
of Appeals into clerk's staff, staff attorney personnel, and library
staff. The Court has the largest clerk's staff among the circuits (33)
and the largest total staff (42), in keeping with its caseload. The
clerk's staff, including several varieties of deputy clerks and secre-
taries, is responsible for docketing, calendaring, some unopposed, pro-
cedural motions, publications, and notification. There are three staff
attorneys who handle p_ro _se matters after docketing, provide legal
advice to deputy clerks who handle prisoner correspondence, prepare
proposed orders or opinions for summary calendar or £ro se cases as
directed by the Chief Judge, abstract current "slip" or summarized
opinions, and are occasionally involved in screening cases. The staff
attorney positions are permanent in the Fifth Circuit, and they are under
105
Richardson and Vines, Politics of Federal Courts, pp. 136-38.
-56-
the supervision of the chief administrative officer of the circuit, the
Circuit Executive. The law library of the Court is one of the largest
and is the only one among the Courts of Appeals with a lawyer serving as
librarian. There are four positions on the library staff handling over
120 law reviews, journals, and court report services.
The Fifth Circuit has developed many internal procedures which
differ from the general requirements of the Federal Rules of Appellate
Procedure. While filing notice of appeal with the clerk of the District
Court whose judgment is appealed is the general rule, in the Fifth
Circuit, a copy of the notice of appeal is also sent to the clerk of the
Court of Appeals and the appropriate court reporter. This informs
the Court at the earliest possible time of an appeal, and it also alerts
the court reporter as to probable demands on his time. The practice has
also developed in the Fifth Circuit for reporters to contact the appel-
lant's attorney to determine if a transcript of the District Court
1 08
proceedings will be required. Pro se matters, where parties act on
their own behalf, are handled by the staff attorneys. They process
applications for leave to appeal in forma pauperis, applications for the
appointment of counsel, and preliminary preparation of cases in which
1 OQ
the party has no lawyer.
All cases are docketed immediately upon receipt of notice of appeal,
but criminal cases are docketed first, and court reporters must give
Langner and Flanders, Internal Procedures, pp. 67-90, passim.
107Ib_i_d., pp. 11-12.
] no
Whittaker, Fifth Circuit, p. 2.
109Ibid., p. 4.
-57-
priority to preparing transcripts in criminal cases. This is part of
the special procedure instituted under Chief Judge Elbert P. Tuttle in
the 1 9 60 ' s to expedite criminal appeals. This procedure provides for
early review of appeals by clerical and staff attorney personnel, early
consultation with the attorneys, accelerated filing of record and briefs,
and advanced hearing dates. There is also a special deputy "monitoring"
clerk to see that all papers and briefs are filed on schedule and to
obtain the agreement of the parties to schedules. Most cases are
placed on the general docket, but appeals taken in forma pauperis go on
the miscellaneous docket, being transferred to the general docket if
granted.
The Fifth Circuit has the most complete and far-reaching screening
procedure among the Courts of Appeals. The Chief Judge appoints a panel
of judges to screen pending appeals. The panel determines the extent,
if any, of oral argument to be allowed in each case, but if the oral
argument is allowed, a different panel will be assigned to hear the case.
The screening panel may determine that the appeal is frivolous and dis-
miss it, by unanimous vote assign the case to the summary calendar for
disposition without argument, or place the case on the regular calendar
for either limited oral argument or full oral argument not to exceed
thirty minutes per side. If the case is assigned to the summary calen-
1 12
dar, immediate written notice is sent to the parties. Through this
device, the Court has been able to limit the cases given full
Langner and Flanders, Internal Procedures, pp. 14-16, 39-40.
Whittaker, Fifth Circuit, p. 4.
112
Langner and Flanders, Internal Procedures, pp. 35-38.
-58-
argumentation to the most important and saved considerable judicial
man-hours.
During the course of proceedings in the Courts of Appeals, the
attorneys often file both procedural and substantive motions requesting
anything from an extension of time to file briefs to a dismissal of the
appeal based upon the briefs and record. These motions can considerably
delay the progress of an appeal, and the Fifth Circuit has adopted pro-
cedures to reduce that delay. Certain procedural and unopposed motions
may be acted upon by the clerk of the court, subject to review by a
judge on timely request by an adversely effected party. Additionally,
the clerk is required to file notice with the Court when granting a
motion will delay the appeal. Some motions may be granted by a single
judge, but most go to a designated "motions" panel. Motions are decided
solely on the papers and briefs, with no oral argument unless the Court
orders it. Staff attorneys usually process motions and prepare memoranda
on £ro se motions and petitions. If motions in a case are filed sub-
sequent to the assignment of the case to a particular hearing panel, the
1 1 1
motions are heard by that panel rather than the motions panel. The
motions panel also rules on emergency matters when the Court is not in
114
regular session.
The briefing procedures in the Fifth Circuit also reflect the con-
centration upon speed. The time requirements for filing appeals briefs,
answering briefs, and reply briefs, are shorter than required by the
Federal Rules of Appellate Procedure. The general time limits are forty
113Ibid., pp. 25-29.
114
Jerome D. Chapman, "Expediting Equitable Relief in the Courts of
Appeals," 53 Cornell Law Review 12 (November, 1967).
-59-
days, thirty days, and fourteen days, respectively. In the Fifth Cir-
cuit, the time requirements are thirty-five days, twenty days, and seven
days. To facilitate the filing of briefs in cases where funds are a
problem, such as appeals filed in forma pauperis, typewritten briefs may
be substituted for the normally required printed briefs.
Judges are selected for hearing panels by the Chief Judge rather
than by the clerk of the court, who has that responsibility in some
circuits. In making these assignments and in setting the calendar with
the clerk, the Chief Judge takes into account the number of cases in the
"ready" pool, the availability of senior judges and visiting judges from
other circuits, and personnel, travel, and space requirements. Unlike
some circuits, in the Fifth Circuit, all written decisions are still
published in one form or another. In those cases in which no opinion
is written, the decisions appear in tabular form in the Federal Re-
porter.
The special or local procedures examined above relate to the primary
problem of the Fifth Circuit, its heavy caseload. Some argue that this
11 8
workload exceeds the Court's capacity. At the least, the caseload is
a problem, for even though the number of judges on the Court has expanded
faster than on any other Court of Appeals, the caseload per judge is also
115
Langner and Flanders, Internal Procedures, pp. 18-20.
116Ibid., p. 44.
117Ibid., pp. 52-55.
118
Charles Alan Wright, "The Overloaded Fifth Circuit: A Crisis
in Judicial Administration," 42 Texas Law Review 949, No. 7 (October,
1964).
-60-
119
increasing. The most common recommendations for alleviating the
problem are splitting the Fifth into two circuits or establishing more
judgeships for the circuit. The second recommendation brings up the
other major problem of the Fifth Circuit, its size.
As previously mentioned, this court is the largest, with fifteen
active judges, creating serious operational difficulties. There is a
loss of the special sense of collegial decision-making so essential to
appellate courts. The Court's size and the large geographical area it
covers also make judicial conferences and en banc proceedings cumbersome.
The size of the Court also increases potential intra-circuit conflict,
for the larger the number of judges, the larger the number of panels,
and the larger the number of possible interpretations of the law. The
continued expansion of the Court has aggravated the problems of com-
munication, administration, and uniformity in interpretation.
In response to this problem, the Court has adopted certain informal
practices. There is constant consultation among the judges by phone and
monitoring of slip opinions to try to avoid inconsistency among the
panels. No en banc proceedings are held unless a judge specifically
requests one within a certain time after filing. In an effort to prevent
intra-circuit conflict, non-panel members may circulate letters of
criticism to the full Court after examining slip opinions. The clerk
will then hold up publication of the opinion until there is a chance
119
Shafroth, Survey of the United States Courts, pp. 253, 269.
120
Commission on Revision, Structure and Internal Procedures,
pp. 57-58. —
-61-
121
for an exchange of views and modification of the opinion. Unfor-
tunately, these practices have only eased rather than solved the problems
of the Fifth Circuit.
The federal court system is thus our institutional setting. Within
the requirements of that system, men must perform their judicial duties
while remaining a functioning part of their environment and participants
in the life of their communities. The inevitable tension which results
is a vital element of this dissertation.
121
J. Woodford Howard, Decision Making Procedures in U.S. Courts
of Appeals for the 2nd and 5th Circuits [Washington, D.C.: Federal
Judicial Center, 1973), pp. 5-10.
CHAPTER II
THE SOUTHERN SETTING
On May 17, 1954, Chief Justice Earl Warren announced the decision of
the United States Supreme Court in Brown v. Board of Education of Topeka,
et al . , four cases which had been consolidated for hearing. It was that
segregation of white and Negro children in the public schools of a state
solely on the basis of race, even if the facilities were equal, con-
stituted a denial to the Negro children of the equal protection of the
laws guaranteed by the Fourteenth Amendment of the United States Consti-
tution.* In its implementing decision a year later, the Court held
that the primary responsibility for ending segregation in the schools
was the burden of local school authorities, acting in good faith and
overseen by the federal courts. Thus, the lower federal courts were in-
volved in an attack on one of the venerable institutions of the South.
In the previous chapter, the structure and procedure of the federal
court system was described. The courts do not operate in a vacuum, how-
ever, but within an environment influenced by the personal characteristics
of the judges, their political loyalties, and the values, opinions, and
]347 U.S. 483 (1954).
♦The cases which were consolidated into Brown v. Board of Education
of Topeka included appeals from state and federal courts in Delaware,
Kansas, South Carolina, and Virginia. Hereinafter, the cases will be
referred to either as Brown or Brown v. Board of Education.
2
Brown v. Board of Education of Topeka, et al . , 349 U.S. 294
(1955).
-62-
-63-
beliefs of their communities and regions. It is therefore essential to
an understanding of the way the courts of the Fifth Circuit handled their
oversight task, to consider their southern setting.
It is the purpose of this chapter to examine that climate of opinion
from the time of the Brown decision in 1954 until the election of John F.
Kennedy in 1960. In order to understand that setting, the background of
belief, the nature of the South and of Southerners, as well as the re-
action to the Brown decision will be examined.
It would be difficult to deny that the citizens of each region of
the United States, in many cases even of individual states, feel that
they have a special character, and that their region is in some way unique.
Few, however, feel their difference more strongly than Southerners. In
spite of the growing homogeneity of all Americans as a result of mass
communications, marketing, and increased mobility, the South has been
and is still perceived as being somehow different or special.
A note of caution must be stated before proceeding with our de-
scription of the South and Southerners. The South is in many ways an
intellectual construct, symbolic rather than real. That symbol has value
as a generalization, but the conventional wisdom now accepts that there
are many Souths.* Miami, Atlanta, and Houston are very different from
one another, and all three have little in common with the black belt of
the Deep South. It has been reasonably argued that the border states
*Some include within the South only the eleven states which con-
stituted the Confederacy: Alabama, Arkansas, Florida, Georgia, Louisiana
Mississippi, North Carolina, South Carolina, Tennessee, Texas, and
Virginia. Others might add to this list the border states of Kentucky,
Maryland, Missouri, and West Virginia, and the state of Oklahoma. The
discussion hereafter applies to both definitions.
-64-
( Kentucky, Maryland, Missouri, Oklahoma, and West Virginia), the "peri-
pheral" South (Texas, Tennessee, Florida, Arkansas, and North Carolina),
and the Deep South (Alabama, Georgia, Louisiana, Mississippi, and South
Carolina), and Virginia are three rather distinct sections. The notion
of a South, however, will be useful to analyze the background of the
climate of opinion in the 1950's. What follows is not intended as an
exhaustive description of the South and Southerners. Rather, those
aspects of the South which will illuminate the subsequent discussion
will be presented.
Before proceeding with our analysis, one further caution seems in
order. What follows is based on the observations of men who have written
about the region. Proper evaluation of their work requires attention to
the perspective from which they see the South. Some of the men are very
much insiders, Southerners writing about themselves and their home. This
is clearly the case with William D. Workman, Brooks Hays, James M. Dabbs,
W.J. Cash, and Hodding Carter. They represent the Old South as either
segregationists or moderates. Other Southerners, like Ralph McGill and
Hodding Carter, III, though very much a product of the South, strongly
dissented from the region's racial attitudes. Others who have written
about the South, such as Numan V. Bartley, Jack Peltason, James Silver,
Howard Zinn, and Keith McKean are essentially outsiders, national com-
mentators on the regional scene. While their views may be based on ex-
perience within the South, they write about others and not themselves.
The distinction between these two groups of men must be kept in mind.
3
E.g., Numan V. Bartley, The Rise of Massive Resistance: Race and
Politics in the South During the 1950's (Baton Rouge. Louisiana:
Louisiana State University Press, 1969), p. 68.
-65-
One way to approach southern values and culture is to divide them
into two patterns or streams of thought that are important for Southerners.4
One treats men as individual actors, emphasizing self-reliance and in-
dividual opportunity. This attitude is akin to the modern idea of
equality. The second viewpoint is patriarchal. In this picture of
society, notions of caste and class, family, birthplace, and attachment
c
to the southern past are stressed. The South is thought of as a large
family with white men filling the roles of father and provider, white
women as homemakers, and most blacks as children to be governed, pro-
tected, or chastized. With regard to the latter, there has often been
a real noblesse oblige whereby responsibility for others is both felt
and taken. At the same time, these "wards" have been subject to rapacious
exploitation.
That the South is a region of contradiction is also demonstrated by
the conflicting values of the southern black belt planters, bankers, and
merchants, who have traditionally ruled state politics in the Deep
South. They were committed to what they believed was a traditional
southern view of life, elements of which included attachment to white
supremacy, a distrust of democratic principles, a belief in an organic
and closed society, states' rights and sovereignty, and a distrust of
city life and politics. However, many of these men were also attracted
4
Keith F. McKean, Cross Currents in the South (Denver: Alan Swallow,
1960), pp. 7-8.
Ibid., pp. 9-20, 36-38.
Ralph McGill, The South and the Southerner (Boston: Little, Brown
and Company, Atlantic Monthly Press, 1959), p. 27.
Bartley, The Rise of Massive Resistance, pp. 17-18.
-66-
to desperately needed economic progress in the South and its possibilities
o
for pecuniary gain. The difficulty has lain in the contradicting nature
of the two desires. It was the persistence of agrarian values, the
rigidity of the social structure, the in-group nature of the political
structure, the weakness of social responsibility, and the conformity of
q
thought and behavior, which hampered regional economic progress.
Perhaps the most basic paradox about the South was that the very
qualities of that region which most would agree were laudable, or at
least were appealing, were also the source of some of its least admirable
qualities. W.J. Cash wrote that:
Proud, brave, honorable by its lights, courteous,
personally generous, loyal, swift to act, often too
swift, but signally effective, sometimes terrible
in its action--such was the South at its best. And
such at its best it remains today, despite the great
falling away in some of its virtues. Violence, in-
tolerance, aversion and suspicion to new ideas, an
incapacity for analysis, an inclination to act from
feeling rather than thought, an exaggerated indi-
vidualism and a too narrow concept of social re-
sponsibility, attachment to fictions and false
values, above all too great attachment to racial
values and a tendency to justify cruelty and in-
justice in the name of those values, sentimentality
and a lack of realism— these have been its charac-
teristic vices in the past. And despite changes
for the better, they remain its characteristic vices
today.10
Hodding Carter maintained there was an appealing attachment to pride,
honor, and family; a concern and interest in history and the romance of
Ibid., pp. 237-50, passim.
9
William Nicholls, Southern Tradition and Regional Progress (Chapel
Hill: University of North Carolina Press, 1960), p. 15.
w.J. Cash, The Hind of the South (New York: Alfred A. Knopf,
1941), pp. 428-29.
-67-
myth; and the rugged individualism of a society not so far removed from
frontier life. Connected with these values, there was also an almost
casual attitude toward violence; an intransigent conservatism; and a
mental and moral conformity with the power to bind whole communities.
The concern with the past, which Hodding Carter discerned in a
feeling of resentment against the North as a conquering nation and a view
1 ?
of Appomattox as an event of only yesterday, often produced an inability
to see reality. Yet, in the South, there was a fatalism not character-
istic of the rest of the country. This sense of life was molded by an
acceptance of failure and defeat as part of one's common experience.
The South was, in ways, a defeated nation subjected to occupation. This
endurance, and refusal to believe that things will always turn out for
the best, has always seemed to make the Southerner more at home with the
world and less restless, and Southerners have both benefited and lost as
a result.
Since the past and the present are more important than the future,
the values of relaxation, leisure, manners, formal courtesy, and neigh-
borliness are part of what James McBride Dabbs calls the Southern
14
Heritage. Similarly, the political and social attitudes of the South
emphasize the conservation of past beliefs and practices, a tendency to
Hodding Carter, Southern Legacy (Baton Rouge, Louisiana: Louisiana
State University Press, 1950), pp. 24, 50-52.
12Ib-id. , p. 19.
James McBride Dabbs, "Into the Modern World," in We Dissent, ed.
by Hoke Norris (New York: St. Martin's Press, 1962), pp. 138-39.
14
James McBride Dabbs, The Southern Heritage (New York: Alfred A
Knopf, 1958), pp. 27-30.
-68-
accept the world as it is rather than to change it, and a general
hostility to reform and ideology. Further, if one seeks comfort from
the present and identification from the past, the critical and inquiring
attitude necessary for change in the future is not developed. These
qualities led to an emphasis on the local, immediate, concrete aspects
of life and a changeless and ordered social structure.
One of the most informative qualities of Southerners is that, above
all else, they value a sense of "place." This feeling is clearly ex-
pressed in the southern emphasis on one's family and close relationship
with one's kinfolk. The relations between blacks and whites depends upon
an awareness that each has a given "place" which is proper. The southern
sense of "place," however, is much more than a kind of family and social
identification, for it also has a physical meaning. In describing their
own qualities, Southerners point to their deep "love of the land."17
This is a deep attachment to the soil. It is almost a feeling that
Southerners are a product of their land. The closest attachment is to
one's home, but it is also expressed by love of one's community, county,
and state. One of the Southerner's reasons for the determination to
remain southern and defend the region against "outside intervention" is
the importance of the land and the rights attached to it. The southern
tradition of national patriotism, notwithstanding the Civil War, is the
broadest expression of this sense of "place." It has therefore always
15
James McBride Dabbs, Who Speaks for the South? (New York: Funk &
Wagnalls Company, Inc., 1964), pp. 3-8.
Dabbs, The Southern Heritage, p. 33.
17Ibid., p. 26.
-69-
been more important for Southerners to know who they were rather than
what they did.
One further crucial characteristic of the South must be here men-
tioned; that is, the dominance of race. Host controversies in the South,
regardless of the subject, seem to resolve themselves into questions of
race. The two constants of southern life have been the conviction that
the races should be separate and that there must be white domination in
1ft
the South. These convictions were originally put into practice through
slavery and then through segregation, a symbol of the Old South and its
1 9
victory over Reconstruction. The maintenance of white supremacy has
been the central value of southern life. It should not be surprising,
therefore, that the Brown decisions were seen as a direct attack on the
South, to be resisted though they were the supreme law of the land.
While there was an absence of genuine liberal alternatives in the
South, the black-belt leadership did have some opponents. These in-
cluded neopopulist mavericks like Huey Long of Louisiana, and an in-
creasing number of conservative businessmen in the "New South" tradi-
20
tion. Partly as a result of the slowly growing influence of such men
and the desire to improve regional economic performance, the 1940's were
something of a liberalizing period in the South. Moreover, the racism
of the Nazi enemy in World War II made easy acceptance of racism in the
South more difficult to maintain. While the major patterns of
I o
Carter, Southern Legacy, pp. 87, 146.
19
Dabbs, The Southern Heritage, p. 127.
20
Bartley, The Rise of Massive Resistance, pp. 20, 25. See also,
C. Vann Woodward, Origins of the New South 1877-1913 (Baton Rouge:
Louisiana State University Press, 1951), and Carl N. Degler, The Other
South: Southern Dissenters in the Nineteenth Century (New York: Haroer
& Row, 1974). "
-70-
discrimination remained, the years after the war saw a grudging acceptance
that segregation would end one day, and there were even signs of a breach
in that practice through voluntary desegregation in a few southern
21
colleges.
This trend was checked to some extent by real dissent in the late
1940's. The Dixiecrats represented social, economic, and political re-
volt against the New and Fair Deals and the beginnings of more active
national involvement in southern racial practices. The Dixiecrats
countered attacks on southern social institutions and reasserted the
ideology of states' rights.22
It was clear that the nation would not continue to ignore the legal
structure of racial discrimination which had prevailed in the South from
the 1870's through World War II. In the early 1950's, the cases which
became Brown vs. Board of Education were under consideration in the
federal courts. In reaction, Southern legislatures, particularly in
Georgia, began preparation of laws to circumvent an expected Supreme
Court ruling which would end segregation in the schools.23
On May 17, 1954, the United States Supreme Court announced its
decision in Brown vs. Board of Education. That decision overturned more
than a half century's acquiesence in the southern practice of segregation
as long as separate facilities were equal.24 Speaking for the Court,
Chief Justice Earl Warren held that separate was inherently unequal in
21
Hodding Carter, III, The South Strikes Back (Garden City, New
York: Doubleday & Company, Inc., 1959), pp. 12-15.
22
Bartley, The Rise of Massive Resistance, pp. 31-32.
3Ibid., pp. 53-55.
24
See Plessy vs. Ferguson, 163 U.S. 537 (1896).
-71-
education and that therefore segregation of the schools deprived black
plaintiffs of the equal protection of the laws guaranteed by the
Fourteenth Amendment. Because of the complexity of the problem and the
broad variety of local conditions, the Court restored the case to its
docket and ordered further argument on the issue of appropriate relief.
In the second Brown decision, announced on May 31, 1955, the Court
ordered that desegregation of the public schools was to be worked out by
local school authorities under the watchful eye of the lower federal
courts. The plaintiffs, and all students, were to be admitted to public
schools on a racially non -discriminatory basis with all deliberate speed.
The speed and degree to which the Brown decisions were enforced thus
largely depended on the attitude adopted by the South.
The immediate reaction to Brown varied from place to place, but some
generalizations can be made. In the border states, there was either
token compliance or preparation for compliance as plans for desegregation
25
were proposed. In the peripheral South, there was little action either
in compliance or resistance, and a good deal of watchful waiting.26 On
the other hand, in most of the Deep South, there was strong opposition to
the ruling, and, with the exception of Alabama, legislation was passed
making compliance with Brown, in effect, a violation of state law.27 With
the possible exception of Mississippi, whose reaction was symbolized by
Judge Tom Brady's "Black Monday" speech excoriating the Supreme Court and
25
Press, mT)$, Si I87rk' The Urging South (New York: Oxford University
Bartley, The Rise of Massive Resistance, p. 68.
27
Ibid., p. 77.
-72-
28
its decision, the general mood of the South was, however, calmer than
many had expected and little concrete action was taken.
Brooks Hays, at the time a moderate Congressman from Little Rock,
has since argued that "the calm that initially prevailed in the South
was eventually broken by the establishment of the White Citizens Councils
on
and the increased activity of the NAACP." The pressures for enforce-
ment of Brown by the NMCP and the activities of the Citizens Councils
and similar movements unified and maintained opposition through the
30
1950' s. Added to these forces was the impact of the second Brown
decision in 1955 which set forth the general procedures by which locali-
ties would present plans for school desegregation and proceed to com-
pliance with the law. Through the 1950' s, immediate reaction in the
South became a set climate of opinion. To determine the atmosphere in
which the courts were required to apply the mandate of Brown, it is now
necessary to examine the ideas and strategies of its opponents and to try
to understand why and how the particularly hostile environment developed.
Segregationists were the most important group of men during the period
under consideration, for they were vocal and organized, and they repre-
sented the views of the vast majority of southern citizens. According to
James W. Silver, a dogma for most segregationists (the following example
referring to Mississippi) would include the following articles of faith:
28
Carter, III, The South Strikes Back, p. 26.
29
Brooks Hays, A Southern Moderate Speaks (Chapel Hill: University
of North Carolina Press, 1959), p. 88.
30
Carter, III, The South Strikes Back, pp. 16-17.
-73-
a) the biological and anthropological "proof" of
Negro inferiority
b) the presumed sanction of God as extrapolated
from the Bible
c) the present state of affairs as one that is
desired and endorsed by Negroes and whites alike
d) the repeated assurance that only through
segregation can law and order prevail
e) a view of history which declares that there
has been a century of satisfactory racial ex-
perience in Mississippi
f) a constitutional interpretation which denies
the validity of the Supreme Court desegregation
decisions. 31
To complete this dogma, add a political belief in the supremacy of states'
32
rights, and, as Numan V. Bartley argues, a belief that the civil rights
movement was the result of conspiracy and manipulation by outside,
un-American forces.
In the tense atmosphere which followed the Brown decisions, the
influence and activity of the Ku Klux Klan increased. There was an in-
crease in its membership and appeal to sympathizers, but with the excep-
tion of Alabama, the Klan did not gain the power and prestige in the
1950's similar to that it had in the 1920's. Where the Klan was active,
its propensity for violence was an effective force for absolute conformity
of white opinion, a consistent goal of the segregationists.34 Unfor-
tunately for the Klan, state political leaders and the White Citizens
Councils provided more socially acceptable and seemingly responsible
James W. Silver, Mississippi: The Closed Society (New York-
Harcourt, Brace & World, Inc., l§Sfa), ppT 149-50;
32
Ibid., p. 22.
33
Bartley, The Rise of Massive Resistance, p. 170.
34
Ibid., pp. 201-208.
-74-
alternatives. These two groups set the tone and developed the tactics
of the segregationist South.
The Citizens Council was first organized by planter Robert Patterson
in Sunflower County, Mississippi, in the summer of 1954. Patterson had
heard Judge Brady's "Black Monday" speech and was convinced of the need
for an organization to provide effective opposition to, in his view, the
clearly erroneous Brown decision. By the fall of 1954, the Citizens
Council was out in public, advertising itself as a responsible organiza-
tion committed to preserving segregation, preventing violence [a reference
to the Klan], and reactivating the precepts of states' rights. The
Council was extremely popular in Mississippi, and by the end of the year
was a force in state and local politics. In October, 1955, the organiza-
tion newspaper, "The Citizens' Council," began publication, and by the
next year, the Citizens Councils had 80,000 members and had expanded to
other states in the South. In April of 1956, the national organization,
the Citizens Councils of America, was established. Eventually it grew
to 300,000 members. By the beginning of 1958, the Citizens Councils
dominated Mississippi politics and white community opinion, was quite power-
ful in Alabama and Arkansas, and had varying degrees of influence
35
elsewhere.
The Citizens Councils employed several tactics. The most important
of these included counterattack against the efforts of the NAACP to find
plaintiffs for school desegregation suits, organization of large scale
protest, presentation of the cause of "constitutional government," and
the assertion of the doctrine of interposition (to be discussed
35
Carter, III, The South Strikes Back, pp. 30-197, passim.
-75-
subsequently). Economic pressure was brought to bear against indi-
vidual blacks and their organizations, and a constant stream of anti-
black literature was distributed.37 The Citizens Councils demanded total
white conformity for the cause of segregation and brought intense social
and economic pressure against the few southern whites who spoke in favor
of compliance with Brown.38 The Councils also organized boycotts of
national companies in retaliation for what they viewed as unfriendly
attitudes to southern racial policies.
In general, rural and working class whites in the South were segre-
gationist and most urbanites were somewhat more moderate.40 Thus, most of
the Citizens Council membership outside of Mississippi was rural and
working class.41 In Mississippi, however, the Citizens Council member-
ship and other segregationist leaders were drawn from the "best people"
42
of the state. In that state and elsewhere, the involvement of such
people gave added respectability to the organizations and further iso-
lated white liberals and moderates.43
36Ibid., p. 72.
37
Ibid., pp. 109-12, 123-24, 137.
3ft
Ibid., pp. 143-47.
39Ibid., p. 159.
40
n JAt- Pel.<;ason> 58 Lonely Men: Southern Federal Judges and School
Desegregation (New YorTTniif court, Brace & Ho7TdTT96TTrpp^ 33-34
41
Bartley, The Rise of Massive Resistance, p. 104.
42
»„„ ■> „Hodd,1,n9 Carter, III, "Meanwhile in Mississippi-Solidarity For-
ever?," in we Dissent, ed. by Norn's, p. 91. J
43
Ibid, pp. 94-95.
-76-
Segregationists in the South were not limited to those who belonged
to specific organizations committed to white supremacy.* If the Citizens
Councils and secondarily the Klan served as the workers and zealots for
segregation, the real white supremacy leadership outside of Mississippi
came from entrenched politicians.44 The national as well as the state
and local leadership of the South opposed desegregation. Nineteen U.S.
senators and eighty-two U.S. Congressmen signed the "Southern Manifesto"
in 1956, opposing the Supreme Court's ruling and federal intervention in
the public schools.**
Separation of the races was to be defended by a campaign of "massive
resistance." The entire South would use all steps short of violence or
secession to oppose desegregation of the schools. The two essential
doctrines for this position were the primacy of states' rights in such
"local" matters as education, and the more aggressive doctrine of "Inter-
position," according to which state sovereignty would be interposed
between the federal courts and local school boards and officials.45 Under
this doctrine, schools did not have to comply with federal court orders
*In a general sense, the term segregationist applies to all who
favored separation of the races, and thus would include a majority of
all white Southerners. Here, the term is used in a narrower sense to
describe political leaders committed to complete opposition to the
implementation of the Brown decision.
44
Samuel DuBois Cook, "Political Movements and Organizations," in
The American South in the 196Q's. ed. by. Avery Leiserson, with an
Introduction by Alexander Heard (New York: Frederick A. Praeqer, Pub-
lisher, 1964), p. 133.
M^.TrTJ ^T ,Soulhe/ns wh0 d1d not sign the Manifesto were Senators
^ p St^ Kff^Uver 0f Te™«see, U.S. Representatives Dante
Fascell of Florida, Jack Brooks, Homer Thornberry, W.R. Poaqe Jim
Zll '/f ?T96 Mfh0n of Texas' and the entire delegations from Okla-
homa and Kentucky. Lyndon Johnson and Sam Rayburn were not asked to sign
45 '
Bartley, The Rise of Massive Resistance, pp. 126-128.
-77-
to present desegregation plans and admit all students without discrimina-
tion based on race. Since the schools were operated under the authority
of the states, federal court orders directing them to take certain
actions were without legal force. The theory of "interposition," and
the entire campaign of massive resistance, including state legislative
attacks on Brown, was first developed in Virginia in 1955 and became the
example for the Deep South. 6 A vast majority of Virginians favored
segregation, and even a bare majority favored closing the public schools
rather than submitting to integration.47
The basis of massive resistance and interposition was a denial of
the validity of the Brown decisions, and this was the position taken by
Virginia and the Deep South. While most of the South was unified by
1958, the peripheral South did not really adopt the logic of massive
resistance. Rather than direct opposition, it attempted to avoid com-
pliance with the Brown decision.48
Two methods of avoidance employed by the state legislators were
pupil placement laws and subsidies to private schools, not subject to the
Brown decision. Pupil placement laws which were not discriminatory on
their face but which allowed local school boards broad latitude to con-
tinue separate school systems were largely successful, particularly
46
Ibid., pp. Ill, 134.
47
n w*. Rob^lnsLL- Gates, The Making of Massive Resistance: Virginia's
Politics of Public School Desegregation, 1954-1956 (Chapel Hill- Uni-
versity of North Carolina Press, 1962), p. xix.
48
Bartley, The Rise of Massive Resistance, pp. 138-44, 292.
-78-
after the concept was not disallowed by the Supreme Court.49 Likewise,
the closing of public schools by localities and state grants to private
all white academies met with some success in Mississippi, Alabama, and
Virginia.50
This legislation and the statutes which made compliance with Brown
a crime were useful to segregationists, but they were aided also by the
passive nature of the judicial process and the national political climate.
Southerners were able to find conservative allies in the North for their
attack on the Supreme Court by combining the causes of segregation and
security consciousness.51 Further, judicial action depended upon the
initiation of lawsuits by individuals or organizations like the NAACP, for
the Brown decisions gave the lower federal courts no real mandate beyond
the supervision of locally originated desegregation plans. In the
absence of a suit, the courts could not order schools to desegregate.
To prevent blacks from bringing such suits, coercion, intimidation, poli-
tical and legal attacks against both the NAACP and individual blacks,
and, on occasion, violence were employed.
49
Peltason, 58 Lonely Men, pp. 78-82. The Supreme Court refused to
review a decision of the Fourth Circuit Court of Appeals, Carson vs.
Warlick, 2 RRLR 16 (1956), which held that a pupil assignment law was
not inherently discriminatory or unconstitutional, but which warned that
if applied in a discriminatory fashion, such a law might be held uncon-
stitutional.
50
Ibid., pp. 193-94.
51
Bartley, The Rise of Massive Resistance, pp. 290-291.
52
. . peltason, 58 Lonely Men, pp. 57-65. A word should be added about
violence. Violence in the 1950's was directed against supporters of the
Brown decision. Violence included more than physical attacks against
individuals, for official failure to curb mob violence was an aspect of
the problem. Further, the possibility of violence was used by local
officials as a legal claim that the need to maintain order excused
° ?« Llr0m obeyln9 desegregation orders. Peltason, 58 Lonely Men,
pp . I 36- I 46. '
-79-
Thus, an overall segregationist strategy was developed to avoid, or
at least postpone, the effect of the Brown decision. This strategy,
described by J.W. Peltason, moved from step to step as follows:
1) mobilization of political power to discourage school boards and
judges from proceeding against segregation; 2) creation of obstacles to
make it difficult for blacks to take desegregation suits before judges;
3) persuasion of southern federal judges not to issue desegregation
orders through legal argument; 4) cricumvention of those orders which
were issued; 5) persuasion of school boards that they had no obligation
to desegregate or cooperate with judges in any way; and 6) attacking the
Supreme Court, its decisions, and its personnel.53
The Case for the South by William D. Workman, a South Carolina news-
54
paperman, published by Devin-Adair six years after the Brown decision,
provides frame and flavor of much of the "respectable South" thinking.
Workman believed that the South was the most homogeneous section of the
nation. It was a large clan based on its Northern European heritage and
spared from the waves of immigration. The South retained its frontier
virtues and relied on custom and its history as guides for action. The
South had long been the subject of hatred in the North and merely asked
to be left alone. After all, Workman argued, the South had not sought
to impose its mores on other regions.
The basic conflict over the Brown decision, according to Workman,
went beyond the issue of segregation. In his view, the Supreme Court had
twisted the Constitution so as to remove its heart, the Tenth Amendment.
53Ibid., p. 40.
54
William D. Workman, Jr., The Case for the South (New York: Devin-
Adair Company, 1960).
-80-
The Supreme Court had become an instrument of absolutism in the conflict
between the rightful sovereignty of the states and the overextension of
the authority of the federal government. This was particularly pernicious
since federal imperialism proceeded on the basis of due process and
equal protection, "broad and fuzzy"55 terms at best.
The issue of segregation was misrepresented in the national news
media, for the South was unable to get a fair hearing. In fact, segre-
gation was not prejudice and white supremacy but "preferential associa-
n 56
tion." The best Southerners rejected both integration and the KKK
and supported the Citizens Councils. Further, it was the only possible
social organization in the South to insure domestic tranquility, as no
other region had the same percentage of Negroes in its population. Dis-
continuance of segregation would ruin southern education as the influx
of Negroes would lower school standards. While it was clear that in-
dividual Negroes could be brilliant and successful, Negroes were inferior
to whites as a race. Ironically, the Brown decision and pressure from
the North made things more difficult for the Negro and reversed a growing
trend to increased racial cooperation.
Workman also warned against the champions of integration among whom
he included the NAACP, the AFL-CIO, the Americans for Democratic Action,
the National Council of Churches, and the Anti-Defamation League of
B'nai Brith, some of which he labeled as "red-front"57 organizations.
None of them realized that true Americans (read Southerners) would never
55Ibid., p. 36.
56Ibid., p. 46.
57Ibid., pp. 190-191.
-81-
be told what to do. These integrationists, including "moderates," were
the modern day abolitionists, fanatics and martinets, dangerous to the
peace of society. Finally, the South would ne\ier accept integration and
be made the subject of a vast social experiment.
Refusing to be classified as a bigot, Workman did feel that changes
in the status of Negroes in the South were in order. To improve their
lot without destroying the fabric of southern life, he suggested 1) a
relaxation of barriers to voluntary association, 2) the extension to
Negroes of greater personal dignity, and 3) improved housing for Negroes.
These changes were, however, dependent upon Negroes behaving as respon-
sible citizens, a task Workman believed they had not always performed.
Although William Workman probably spoke for the vast majority of
Southerners, there were other voices. Southern moderates, difficult as
it is to define the term, were the largest non-resistance group. They
did not favor the desegregation of the schools, but most had values higher
than segregation and believed in obedience to the law.
Brooks Hays, the U.S. Representative from Little Rock until unseated
by a Citizens Council candidate in 1958, had long been known as a
southern moderate, and he so classified himself. Though he questioned
the constitutionality and judgment of the Brown decisions, he favored
obedience to the law and was firmly committed to maintaining the public
school system of the South. Hays believed that "the South really has few
prejudiced white people who cannot be persuaded to justice and Christian
u •* ..58
charity.
58
Hays, A Southern Moderate Speaks, p. 222.
-82-
Hays1 moderation must not be misread. He had little belief in the
power or the right of federal lawmakers and courts to redirect southern
life. He maintained that "in the last analysis, it will be the churches
and the local community organizations that will provide solutions to the
59
problems of civil rights." Thus, he argued for a piecemeal , volun-
taristic approach to school desegregation, proceeding no more rapidly
than the attitude of local communities would permit. Hays, after all,
did sign the "Southern Manifesto" in 1956 and voted against the Civil
Rights Bill of 1957 as a federal interference in local responsibili-
., 60
ties.
Hays' view was reasonably representative of a group of men who
became Governors in the South towards the end of the decade. Governors
Carl Sanders of Georgia, Ernest Hollings and Donald Russell of South
Carolina, and Terry Sanford of North Carolina were part of this new
breed. Perhaps the most forward looking of the moderate political
leaders was Governor Leroy Collins of Florida. In response to threats
of violence over Negro lunch counter sit-in demonstrators in Tallahassee,
Collins made a statewide television address in which he called for com-
pliance with the law and stated that merchants had a moral obligation to
extend the full services of their establishments to the public they
claimed to serve. Prophetically, he reminded Floridians that "We can
never stop Americans from struggling to be free."
59
Ibid., p. 195.
6°Ibid., pp. 89, 100-101.
Coleman B. Ransome, Jr., "Political Leadership in the Governor's
Office," in The American South, ed. by Leiserson, pp. 215-17.
CO
Leroy Collins, "But in Florida— We Cannot Wash Our Hands," in
We Dissent, ed. by Norris, p. 110.
-83-
The most powerful force for moderation was the desire of Southerners
for economic progress. Moderates argued that the segregationists were
creating turmoil in the South and discouraging national business leaders
from seeking the advantages of the South for plant location. Thus, con-
servative business leaders, particularly those interested in attracting
new industry, counseled against measures which would disrupt the peace,
close public schools, and bring the region into disrepute. This business
oriented concern was one of the keys to the eventual defeat of die-hard
segregationist power.
The interests which motivated the business leadership, and the eco-
nomic benefits available if southern segregationism was modified, brought
the steady erosion of massive resistance. At the end of 1960, Numan
Bartley summed it up, writing that:
. . . the future of public education and the
stability of the governmental process, rather than
segregation and desegregation became the central
issues. This situation led to a shift away from
massive resistance, a shift that was conservative
rather than reformist, that brought social stability
rather than social change.64
The concern for profit had become more powerful than the concern for
race.
While many applauded them, the moderates were also viewed from a
different perspective. Perhaps the moderates really constituted a
majority in the South, which believed in either segregation or desegre-
gation, but lacked the courage of their convictions. Ralph McGill offered
(T1
McGill, The South and the Southerner, p. 238.
64
Bartley, The Rise of Massive Resistance, p. 320.
-84-
the forceful conclusion that "the practicing moderates contributed
largely to the undoing of a fine honorable word. As events developed
in the South' s travail of race, the self-styled moderate turned out to
be one who stood on the sidelines wringing his hands and urging both
65
parties in the conflict to be calm." Many who considered themselves
to be moderates sought a token compliance with Brown through gerrymander-
ing school districts, allowing the integration of a low number of
"quality" Negro students, and making use of the inherent delays in the
i i 66
legal process.
By contrast white liberals in the South were a small and somewhat
lonely group of men and women in the 1950' s which had little impact on
the regional climate of opinion. No major political office-holder during
the period could be called liberal on the issue of school desegregation.*
With few exceptions such as Ralph McGill of the Atlanta Constitution,
southern liberals were without an effective public voice. Those few
local newspapermen, clergy, and ordinary citizens who dared to oppose
the majority view were subject to social ostracism, economic coercion,
and at times, physical violence. Dissent on matters of race was simply
not acceptable. There were prominent individuals from the South who were
committed to desegregation and equality, but they were without any real
influence.
65
McGill, The South and the Southerner, p. 283.
Robert A. Leflar and Wylie H. Davis, "Devices to Evade or Delay
Desegregation," in Desegregation and the Supreme Court, ed. by Benjamin
Murr Ziegler (Boston: D.C. Heath and Company, Problems in American
Civilization, 1958), pp. 97-98.
*In this discussion, the term liberal describes those who com-
pletely endorsed the Brown decision and looked forward to the end of
discrimination and segregation in the South.
Bartley, The Rise of Massive Resistance, pp. 193-95.
-85-
Perhaps the only effective force for desegregation in the 1950' s in
the South was the NAACP, although it had to overcome substantial dif-
ficulties. The majority of black Southerners were in no position to
challenge the status quo by urging enforcement of the Brown decision,
few blacks could or would pursue school desegregation suits as plain-
tiffs. The organization was the subject of both legal harassment and,
in some cases, physical violence. Nevertheless, the NAACP was at least
able to prosecute enough school desegregation suits to keep the issue
before the federal courts. Direct confrontation through the courts was
the only available means and eventually proved effective. With the
exception of isolated activity such as the Montgomery bus boycott in
1956, the NAACP was the only meaningful black instrument in support of
integration in the South of the 1950's.
This chapter has briefly examined the background of southern atti-
tudes, the initial reaction to the Brown decision, and the southern
response in the 1950's. The South was overwhelmingly opposed to the
desegregation of its public schools. As the 1950's ended, the South,
excluding the border states, had taken no serious steps to desegregate
its public schools, despite the rulings of the Supreme Court. The first
and most uncontrovertable reason for the failure of the Brown decision
in the 1950's was the reality of Southern opposition to desegregation.
This failure, however, did not belong to the South alone. The segrega-
tionists used states' rights as an instrument to immobilize the national
government, and the Eisenhower administration and Congress as well
Howard Zinn, The Southern Mystique (New York: Alfred A. Knopf,
1 964) , p. 41 .
-86-
69
provided little support for even moderate Southerners. In fact, it
was probable this reluctance to act reflected majority opinion of the
nation. In the event, national inaction made the most recalcitrant school
boards and southern federal judges the pacesetters, and it was not until
the Little Rock school crisis in 1957 that the administration was forced
to make any efforts to see that the federal courts were obeyed. In
most cases, the default of responsible leaders who were capable of changing
long held views left state and local leadership in the South to extrem-
ists. The failure of local leadership was particularly true with regard
to the southern Bar, for a large proportion of southern lawyers supported
or created segregationist arguments which they knew or should have known
72
had little legal basis. The failure of leadership was doubly unfor-
tunate, for where enlightened leadership did operate, as in Atlanta, at
73
least the beginning of peaceful desegregation was possible.
The most belligerant and determined segregationists were from the
rural black belt in the Deep South. In most of the South, through
malapportionment and special devices such as the county unit system,
rural areas were vastly overrepresented in relation to the growing urban
and suburban populations. Not until the mid-1960's would this imbalance
69
Peltason, 58 Lonely Hen, pp. 45-49.
70Ibid., pp. 52-55.
Cook, "Political Movements and Organization," in The American
South, ed. by Leiserson, p. 134.
72
McGill, The South and the Southerner, p. 227.
73
Zinn, The Southern Mystique, pp. 20-21.
74
Bartley, The Rise of Massive Resistance, pp. 96, 103.
-87-
begin to be corrected. In the 1950' s , the imbalance gave added power to
the forces for segregation.
There seemed to be little hope for real change in the South. Even
before the Kennedy administration took office, however, there were signs
that offered encouragement to southern moderates and liberals. First,
the conflict between the desire for economic progress and the racial
ideology of the Old South was becoming increasingly sharp. Increasingly
often toward the end of the decade, the, first set of values were seen as
more important than the continuation of segregation. Southerners began
to realize it was important to maintain the public schools, integrated or
not, in order to attract new industry. The key to this adjustment in
most of the South was that before there was a real change in the way
Southerners thought about race, there was a significant change in the way
they acted about their schools.
As a result of the Brown decisions, and faced with Southern refusal
to comply, the federal courts became the frontline force in the desegre-
gation of southern schools. Even though the courts had to wait for
others to act first, there was enough litigation of the issue to keep the
courts involved. This presence was important, for the courts, par-
ticularly the courts of appeals, constituted a national force for com-
pliance in the South. Even though the Brown decision was enforced only
in a few selected areas and by small degrees, and then only by legal
75
Zinn, The Southern Mystique, pp. 8-9, 50-52.
76Ibid., pp. 22-23.
77Ibid., pp. 18, 38-39.
coercion, the slowly growing incidence of school desegregation orders
became a more common part of southern life.
The federal courts were thus entrusted with the primary responsi-
bility for desegregation in southern public schools.78 Until the Little
Rock decision in 1958, the burden rested on the federal district courts
at the trial level and on the courts of appeals. The judges of these
courts were mostly Southerners. They lived in Southern communities, and
practiced law with Southern colleagues. Their courts were staffed and
operated in an atmosphere that was bitterly hostile to the law the judges
were bound to enforce. Clearly, this charted the path of the courts and
their judges between the Scylla of the Constitution and the Charybdis
of their lives within the Southern setting.
7ft
Hartley, The Rise of Massive Resistance, p. 65.
CHAPTER III
THE JUDGES (1): THE PERSONAL SETTING
The first two chapters have described the structure and operation
of the federal court system, particularly the Court of Appeals for the
Fifth Circuit, and the climate of opinion in the South after the Brown v.
Board of Education decisions. This chapter briefly profiles the judges
who served on the Fifth Circuit Court of Appeals from Brown to the end of
the Eisenhower years. These men made decisions which were intimately
connected with changing the racial arrangements traditional to the South,
and it is their response as men and judges to their environment, their
office, the national Constitution, and the pressures for stability and
change which is the central concern of this study.
The purpose of this chapter is to briefly introduce the judges of
the Court of Appeals for the Fifth Circuit.* This introduction will be
limited to basic biographical information. All of the men who served on
the Court from May 17, 1954, until the end of 1960 will not be covered
in this study.
The seven judges included are, in the order of their seniority:
Joseph C. Hutcheson, Jr., Richard Taylor Rives, Elbert Parr Tuttle,
Benjamin Franklin Cameron, Warren LeRoy Jones, John R. Brown, and John
in *Su^secluent reference to the Court of Appeals for the Fifth Circuit
will be to the Court of Appeals or Court unless otherwise noted.
-89-
-90-
Minor Wisdom. Inclusion or exclusion of the judges was determined by
reference to several factors. All of the judges included either served
for the entire period or were appointed after the Brown decision and were
still on the bench at the end of 1960. All of the judges included par-
ticipated in major school desegregation decisions during the period in-
volved. The judges included either wrote opinions for the Court of
Appeals or wrote dissenting or special concurring opinions.
Among those men excluded from the study, only Wayne G. Borah re-
mained on the Court of Appeals more than seven months after the first
Brown decision. Borah retired some two and one-half years after Brown,
but he participated in only one school desegregation case of any note,
and in that instance wrote no opinion. Thus, with the exception of
Judge Wisdom who was appointed in mid-1957, the judges under study served
for all or most of the period. They all heard more than one school de-
segregation case, and in the absence of Supreme Court activity, served
as the final arbiters on this explosive issue for most of the Deep South.
The brief introductions which follow will be in the order of the judges'
seniority on the Court of Appeals.
Those not included in this study are Wayne G. Borah, Edwin R.
Holmes, Robert L. Russell, Louie W. Strum, and the inactive senior
judge, Samuel H. Sibley. Judge Borah sat on the Court of Appeals from
October, 1949, until December, 1956; Judge Holmes from April, 1936,
until November 1954; Judge Russell from October, 1949, until January,
1955; and Judge Strum from October, 1950, until July, 1954. U.S.
Congress, Senate, Committee on the Judiciary, Legislative History of
the United States Circuit Courts of Appeals and the Judges Who Served
During the Period 1801 Through Hay, 1972, 92nd Cong., 2nd Sess.,
1972, 104.
Joseph C. Hutcheson, Jr.
Judge Hutcheson was born in Houston, Texas, on October 19, 1879,
the son of a well-known lawyer and two time U.S. Representative. He was
educated at the Bethel Military Academy in Virginia and attended the
University of Virginia. In 1900 he received his law degree from the
University of Texas, where he was elected to the honorary Order of the
Coif. After admission to the practice of law in Texas in the year of his
graduation from law school, he became a member of his father's Houston
law firm. He remained with the firm until 1918.
From 1913 to 1917, Hutcheson was the chief legal advisor to the
city of Houston and was mayor from 1917 to 1918. In the latter year,
President Woodrow Wilson appointed him as a United States district judge
for the Southern District of Texas. Hutcheson sat on the district court
for twelve years, until 1930. Having established a reputation as an able
judge and an outstanding legal scholar, he was appointed to the Fifth
Circuit Court of Appeals by President Hoover. Thereupon began an almost
unprecedented period of service of some thirty-seven years, as U.S.
circuit judge from 1931 to 1964 and as a senior* circuit judge from 1964
to 1968. During that period, Judge Hutcheson was Chief Judge of the
Fifth Circuit from 1948 to 1959, when at the age of eighty, he was
*When federal District and Appeals Court judges reach the age of
seventy, they may elect either to resign or to retire and take states
as a senior judge. Senior judges retain full salary and are called
SenW^Hnl caseWh<? n«d arises and as their health allows.
Senior judges regularly inform the Chief Judge of the Circuit regardinq
their availability for duty and the Chief Judge makes the assignment 9
-92-
required to relinquish the Chief Judgeship. Judge Hutcheson died on
January 18, 1973, at the age of ninety-four.2
During his years on the bench, Judge Hutcheson was active in pro-
fessional, civic, and public affairs. He was a member of the Executive
Council of the American Law Institute, the Harris County, Texas, and
American Bar Associations, and the ABA Special Committee on the Restora-
tion of the Inns of Court. Judge Hutcheson was also the American chairman
of the Anglo-American Commission of Inquiry dealing with Palestine from
1945 to 1946. An advocate of tough but equal justice, Hutcheson was an
early member of the Advisory Committee of the National Association of
Legal Aid Organizations. A man of far ranging interests, he was also a
member of both the Houston Philosophical Society and the Philosophical
Society of Texas. He published numerous legal articles, but he was
best known for his Judgment Initiative (Chicago: Foundation Press,
1938), in which he set forth his view of the usefulness of the informed
"hunch" in decision-making.
Richard Taylor Rives
Judge Rives was born in Montgomery, Alabama, on January 15, 1895.
He was a student at Tulane University for one year from 1911 to 1912 and
is the only judge included in this study who did not attend law school.
He prepared for a legal career in the traditional manner, by reading and
studying law in the offices of Hill, Hill, Whiting and Stern in Montgomery.
2
Uho Was Who in America. V (Chicago: Marquis Who's Who, Inc.,
1973) , p. 350.
3Ibid.
-93-
His only law degree was an honorary L.L.D. from the University of Notre
Dame, in 1966. Judge Rives displayed such aptitude in his studies that
he was admitted to the practice of law in Alabama in 1914 at the age of
nineteen. Prior to entering into practice, he served in the National
Guard on the Mexican Border in 1915 and 1916 and was a first lieutenant
in the Signal Corps of the American Expeditionary Forces in World War I
from 1918 to 1919.
Judge Rives practiced law in Montgomery from 1920 until 1951.
During that period he was active in local Democratic party politics and
served as an Alabama Delegate at the 1940 National Democratic Convention.
In 1951, President Truman appointed Rives to the Court of Appeals. He
served as Chief Judge from 1959 to 1960 and took senior judge status
in 1966.
Judge Rives has been active in professional organizations during his
career as a lawyer and a judge. Prior to his judicial tenure, he was
president of both the Montgomery and Alabama Bar Associations and an
active member of the American Bar Association. He was also selected as
a honorary member of the Order of the Coif. As Chief Judge of the Fifth
Circuit, he was a member of the Judicial Conference of the United States
in 1959 and 1960, and from 1961 to 1967, he served on the Judicial Con-
ference Advisory Committee on Appellate Rules.4
Elbert Parr Tuttle
Judge Tuttle was born in Pasadena, California, on July 17, 1897.
He spent his youth in California and Hawaii and was a student at the
who-s'gTHCTJ"),^^'1 S°"thWPSt (13th ed-; Chicago: Ma^is
-94-
Punahou Academy in Honolulu from 1909 to 1914. Tuttle received a
bachelor's degree from Cornell University in 1918 and his law degree from
the same institution in 1923. As a student, he was elected to the Order
of the Coif and Phi Kappa Phi. Judge Tuttle worked as a newspaperman in
New York on the New York Evening Star and in Washington, D.C. on the
Army & Navy Journal and the American Legion Weekly in 1919. He moved
to Atlanta, Georgia, and was admitted to the practice of law in that
state in 1923. Judge Tuttle continued practice in Georgia and after
1946 in Washington, D.C, with the firm of Sutherland, Tuttle and
Brennan.
Judge Tuttle served in the army during World War II and was dis-
charged in 1946 as a colonel. In the reserves, he was the commander of
the 108th Airborne Division from 1947 to 1950. He retired as a brigadier
general in the U.S. Army Reserve. From 1953 to 1954, Tuttle was General
Counsel for the Treasury Department. In the latter year, President
Eisenhower appointed Tuttle to the Court of Appeals, where he still
serves as a senior circuit judge. From 1961 to 1967, Tuttle was Chief
Judge of the Circuit, and he took senior status in 1968.
Judge Tuttle has been very active in professional organizations and
civic affairs. His service reflects his stature as a judge and an
Atlanta community leader. He is past president of the Atlanta Bar
Association (1948), a member of the American Bar Association, the Ameri-
can Law Institute, and past president of the Atlanta Chamber of Commerce
in 1949. As Chief Judge of the Circuit, Tuttle was a member of the
Judicial Conference of the United States from 1961 to 1967 and the
Judicial Conference Subcommittee on Federal Jurisdiction from 1969 to
1975. He has been chairman of both the Judicial Conference Advisory
-95-
Committee on Judicial Activities since 1969 and on Civil Rules since
1971. Judge Tuttle's civic activities have been equally numerous. From
1947 to 1949, he was Trustee of the Atlanta Community Chest, and in 1951,
he was the vice-president of the Atlanta Community Planning Council. He
has also served as a trustee of the Interdenominational Theological
Center, Cornell University, Atlanta University, Spelman College, More-
house College, and Piedmont Hospital.5
Benjamin Franklin Cameron
Judge Cameron was born in Meridian, Mississippi, on December 14,
1890. He received his college degree from the University of the South
in 1911 and his law degree from Cumberland University in Lebanon,
Tennessee, in 1914. While a law student, Cameron was also a teacher of
Latin and German and the athletic director of the Norfolk Academy in
Virginia from 1911 to 1913. His involvement with sports continued the
next year as athletic director of Cumberland University.. In 1914, Judge
Cameron was admitted to the Mississippi Bar and engaged in the private
practice of law in Meridian until 1955. He also served as a United States
Attorney for the Southern District of Mississippi after 1929. In 1955,
at the suggestion of several southern Democrats,6 Cameron was appointed
to the Court of Appeals by President Eisenhower. He remained on that
Court until his death on April 3, 1964.
5,
Inc_5 ^-WJ^ya^lca. II (38th ed.; Chicago: Marquis Who's Who,
Mary Hannan Curzan, "A Case Study in the Selection of Federal
Judges: The Fifth Circuit, 1953-1963" ( Ph.D. Dissertation
Yale University, 1968), p. 41.
-96-
Judge Cameron's professional activities were limited to his member-
ships in the Lauderdale County, Mississippi, and American Bar Associations.
His civic activities and outside interests reflected, in part, Cameron's
continuing interest in young people and athletics. From 1945 until his
death, he was a trustee of the R.D. Sanders Foundation, and from 1943 to
1945, he was the Chairman of the Board of Regents of the University of
the South. In 1940, Cameron was the chairman for Mississippi of the
Finnish Relief Fund. He had additionally been the president of the
Choctaw Area Council of the Boy Scouts of America, vice-president of the
Mississippi State Council of the YMCA, and the president of the Meridian
Touchdown Club. Judge Cameron had the distinction of being the first
Republican from Mississippi to be named to the Federal Courts of Appeals
in over half a century.8
warren LeRoy Jones
Judge Jones was born in Gordon, Nebraska, on July 2, 1895. He did
not receive a college degree, but graduated cum laude from the University
of Denver School of Law in 1924, after serving in the army during the
First World War. He was admitted to the Colorado bar in 1924 and in the
same year was a deputy district attorney for the city and county of
Denver. He practiced law in Denver in 1925, and the next year moved to
Jacksonville, Florida. Judge Jones practiced law in that city until
1955, when he was appointed to the Court of Appeals bench by President
Eisenhower. In 1966, he took senior status.
Who Was Who in America. IV (1968), p. 149.
New YorklLs^T^l "*"*, "■ Atte"^ to Block "«*««..•
-97-
Judge Jones has been active in both professional and civic organiza-
tions which reflect both his interests and activities. He was past
president of the Jacksonville (1939) and Florida (1944) Bar Associations
and is a member of the American Bar Association, and past president of
the Jacksonville Chamber of Commerce (1955). Jones is also a member of
the American Judicature Society, the American Law Institute, the Maritime
Law Association, the New Orleans Bar Association, and a Judicial Fellow
of the American College of Probate Counsel. He was the recipient of the
Lincoln Diploma of Honor from Lincoln Memorial University in Harrogate,
Tennessee, and received an honorary L.L.D. from Stetson University in
1955. Judge Jones is also a well-known collector of Lincolniana.9
John R. Brown
Judge Brown was born in Funk, Nebraska, on December 10, 1909. He
was brought up in Nebraska and received his undergraduate degree from the
University of Nebraska in 1930. At the University of Michigan, Brown
compiled a straight "A" record, was a member of the law review and the
Order of the Coif, and received his law degree in 1932. He subsequently
received honorary L.L.D. 's from the University of Michigan (1959) and the
University of Nebraska (1965). Upon graduation, Judge Brown moved to
Houston, Texas, and was admitted to the Texas bar in 1932. He practiced
law in Houston until 1955 as a member of the firm of Royston & Rayzor,
specializing in the practice of admiralty and maritime law. During World
War II, Brown served as an officer in the Army Air Force's Transportation
Corps in the Pacific Theatre from 1942 to 1946.
g
Who's Who in the South and Southwest (13th ed.), p. 384.
-98-
Brown was appointed to the Court of Appeals by President Eisenhower
in 1955, and he still serves on that Court. He has been Chief Judge of
the Circuit since 1967. Judge Brown was active in Republican politics
prior to his appointment to the federal bench. He was the chairman of
the Harris County Republican Committee in Texas from 1953 to 1955. He
has also been active in professional organizations as a member of the
Houston, Texas, and American Bar Associations, the American Judicature
Society, and the American Law Institute. He is a member of the ABA Com-
mittee on Admiralty and Maritime Law, the Maritime Law Association and
its Committee on Admiralty Rules, and the U.S. Association of ICC
practitioners. Judge Brown is also an Elder of the Presbyterian
Church.
John Minor Wisdom
Judge Wisdom was born in New Orleans, Louisiana, on May 17, 1905.
He received his undergraduate degree from Washington & Lee University in
1925, and studied literature at Harvard University and law at Tulane Uni-
versity, receiving his law degree from the latter in 1929. During his
legal studies, he was selected for the Order of the Coif. Wisdom was
admitted to the practice of law in Louisiana in 1929 and was a corpora-
tion lawyer in New Orleans until 1957. Beginning in 1938, and for many
years thereafter, he was a part-time professor of law at Tulane Univer-
sity. Wisdom served as an officer in the Air Force during World War II,
leaving the service in 1946 as a lieutenant colonel.
10Ibid., p. 90.
-99-
Judge Wisdom was active in Republican politics, serving as National
Committeeman for Louisiana from 1952 to 1957 and was also a member of the
Republican Executive Committee. He was an early supporter of Eisenhower's
nomination in 1952 over Senator Taft of Ohio and was the chairman of the
Southern Conference for Eisenhower. In recognition of his service to
the Republican party and his outstanding legal reputation, Wisdom was
appointed to the Court of Appeals by President Eisenhower in 1957. Judge
Wisdom is now second in seniority to Chief Judge John R. Brown. He will
not, however, become Chief Judge upon Brown's retirement, for Wisdom is
already past the age of seventy.
Wisdom has been very active in professional and civic affairs and
his interests are fairly broad. In addition to his memberships in the
New Orleans, Louisiana, and American Bar Associations, he is also an
active member of the Inter-American Bar Association and is past presi-
dent of the Foreign Policy Association. Judge Wisdom was a member of the
President's Commission on Government Contracts and is presently a member
of the Multi-District Litigation Panel. He is a member of the Louisiana
and American Law Institutes. Wisdom is a Trustee of Washington & Lee
University and was treasurer of the New Orleans Community Chest and
president of the New Orleans Council of Social Agencies.11
These seven men constitute the central element of this study. They
were, in effect, the decision-makers of last resort in the legal battle
over school desegregation in the formative years between 1954 and 1960.
They operated in an environment generally hostile to their responsibility
nibid., p. 828.
-100-
of carrying out the Supreme Court mandate of the Brown decisions. The
national administration was somewhat less than vigorous in its direction
or enforcement of the policy announced in Brown, and at least in terms
of specific application to the Fifth Circuit, the Supreme Court provided
no guidance. These judges, Hutcheson, Rives, Tuttle, Cameron, Jones,
Brown, and Wisdom, were indeed at the eye of a social hurricane.
It is sometimes tempting to conclude that certain aspects of any
person's past are consistently useful tools for predicting subsequent
behavior. In the present context, that consideration might lead one to
expect that a roughly contemporary group of southern judges, such as the
subjects of this study, would be either hostile to a policy of desegre-
gation in the schools or at least suspicious of judicial involvement
with social policy. That assumption would here be unwarranted. All of
the judges studied are non-ethnic Protestants, and in that regard they
are typical of a homogeneous South. These men come from an era prior to
the present growth and mobility so characteristic of the present South,
for the youngest of their number is sixty-eight years old. Until their
appointment to the Court of Appeals, these judges had engaged primarily
in the private practice of law.
For a group of southern judges, there are, however, several perhaps
untypical elements in their collective biography. One of their number
never attended law school. Three of them were born and spent their early
years outside of the South and also attended colleges and/or law schools
outside the South. More importantly, five of the seven men were or are
Republicans and all but two were appointed to the Court of Appeals by
President Eisenhower, a Republican. Finally, and most unusually, only
-101-
one of these men had any judicial experience prior to their appointment
to the Court of Appeals. In these circumstances, facile assumptions
based on the southern setting are dangerous at best.
■102-
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CHAPTER IV
THE CASES (1): THE FACTUAL SETTING,
G'BSON v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY
The previous three chapters have set forth the institutional,
regional, and personal backgrounds of the seven Court of Appeals Judges
for the Fifth Circuit. It is now time to see Judges Hutcheson, Rives,
Tuttle, Cameron, Jones, Brown, and Wisdom in action. Therefore, each
of the next three chapters will deal with a public school desegregation
case that came before the Fifth Circuit Court between 1954 and 1960.
During the years of the Eisenhower Administration, the Fifth Circuit
Court of Appeals heard numerous public school desegregation cases. Since
the focus of this study is on the Court and the Judges, not the develop-
ing case law of school desegregation, no attempt has been made to review
them all. The three cases which have been chosen, Gibson v. Board of
Public Instruction of Dade County, (1956-1959), Borders v. Ripp.y (1955-
1961), and Bush v. Orleans Parish School Board (1951-1964),* are from
Florida, Texas, and Louisiana, respectively. Each represents a different
n^ r , the exception of Gibson v. Board of Public Instruction of
Dade County, the cases here reviewed had several different
reflecting changing or additional parties to the suit and different
Zl eV^l Jhe nameS of the cases which have been set forth above
ipnnth? G WhlCh S0;* readily identif* them- Sin« they involved a
ITS lSV*i It declsions> Tegal citations will be reserved until the
point at which they are specifically appropriate. Unless otherwi e
stated, hereafter the cases will be referred to in the text resoec-
Parish case ^ "*■ ^ R1PPY °r DallaS CaSe' a"d ^ °"«ns
-103-
-104-
problem for the Judges. While all three cases deal with school desegre-
gation, each has a unique nature.
The first of the cases to be reviewed, Gibson v. Board of Public
Instruction of Dade County, is the simplest of the three and involved
the Court of Appeals in correction of lower court decisions. The de-
cisions themselves precipitated but did not directly require the first
integration of public schools in the state of Florida. Borders v. Rippy
dealt with the integration of public schools in Dallas, Texas. It
required the Court of Appeals to spend many years battling with two
district court judges who refused, as long as possible, to implement the
Brown desegregation decisions. Finally, Bush v. Orleans Parish School
Board was one of the most complex and lengthy desegregation cases ever
decided. It required the Court of Appeals to continually support a lone
district court judge against the Governor, the Legislature, and most of
the State officers of Louisiana.
Before beginning a review of the Gibson case, a word of guidance
seems in order. While the Orleans Parish and Rippy cases were as impor-
tant as any decided during this period in the Fifth Circuit (the first
public school integration in Florida took place in Miami and was con-
nected with the Gibson decisions), no claim is made here that these
three cases had the greatest impact. It would probably be impossible to
pick any such single public school desegregation case since the Brown
decisions. The three cases were chosen for their inherent interest and
as representative of the various situations that the Appeals Court Judges
faced. Beneath the welter of legal maneuvering, the cases are being used
as a vehicle to illustrate the attitudes and judicial behavior of Judges
Hutcheson, Rives, Tuttle, Cameron, Jones, Brown, and Wisdom.
-105-
In the federal courts of the United States, the case of Gibson v.
Board of Public Instruction of Dade County involved two hearings in the
U.S. District Court for the Southern District of Florida, and two hearings
before the Court of Appeals for the Fifth Circuit.1 While the super-
vision of the courts lasted longer, the legal struggle— from the original
filing of the suit until the second decision in the Court of Appeals-
took approximately three and one-half years. The cases were heard in
the district court by Judges Emett C. Choate and Joseph P. Lieb and in
the Court of Appeals by Judges Rives, Jones, and Brown, and then by
Rives, Brown, and Wisdom. Gibson was typical of the majority of de-
segregation litigation in the 1950's. The attempt of school officials
to employ a Pupil Assignment law as a desegregation plan was upheld in
the local federal District Court. The Court of Appeals reversed these
decisions, holding such a statute insufficient where the school system
remained segregated. It was also typical that the litigation produced
no clear-cut result, for integration in Miami took place voluntarily on
a token basis in reaction to rather than as a consequence of the suit.
The last reported decision in the Gibson case resulted in returning the
case to the District Court for continued supervision.
The original suit was an action for a declaratory judgment for the
right of black school children to attend public school in Dade County
Gibson v. Board of Public Instruction of Dade County, 2 RRLR (Race
Relations Law Reporter) 9 (S.D. Fla. 1956); 246 F.2d 913, 2 RRLR 784
(5th Cir. 1957); 170 F.Supp. 454, 4 RRLR 21 (S.D. Fla. 1958); 272 F 2d
763, 4 RRLR 859 (5th Cir. 1959).
2
The original suit was filed on June 12, 1956, and the second
Appeals Court decision was announced on November 24, 1959. Miami Herald
July 24, 1957, p. 1, col. 6; Gibson v. Board, 272 F.2d 763 '
-106-
without discrimination based on race or color. The primary legal issues
raised dealt with the right of the plaintiffs to bring suit and the suf-
ficiency of certain Florida legislation (to be discussed subsequently)
as compliance with the requirements of the Brown decisions. The ruling
by the U.S. Supreme Court on May 17, 1954, that segregation in the public
schools was unconstitutional brought no immediate change to Southern
education. In the absence of voluntary compliance by local school
boards, it was necessary for black parents to bring suit. Thus, through-
out the South, NAACP attorneys began a search for parents who would
attempt to enroll their children in previously all white schools and,
if necessary, to act as plaintiffs in desegregation suits.
This was the case in Miami, Florida, where petitions were being
circulated in the black community to find willing parents. The local
NAACP attorney, Howard Dixon, sought children who lived near white
schools because the current policy was one of nearest school assignment.
If entrance were denied and meetings with school board officials pro-
duced no results, suit would be filed in the federal courts.3 Florida's
Attorney General, Richard Ervin, warned the state NAACP not to push
integration until the U.S. Supreme Court had ruled whether it was to be
immediate or gradual. This apparent confrontation was avoided, however,
for both sides appeared to be willing to wait for the second Brown
decision which would hopefully establish the procedure for desegregating
the schools. Dr. G.W. Hawkins, the acting president of the Miami NAACP,
assured public officials that there would be no push for integration
during the 1954-1955 school year, and that the NAACP wanted voluntary
3
New York Times, August 19, 1954, p. 21, col. 2.
4
Miami Herald, August 19, 1954, p. Dl , col. 8.
-107-
desegregation. The circulation of petitions, Hawkins said, was merely
a device to let the public know how the black community felt.
No legal action was taken until 1956 when the Gibson case was filed.
In the intervening period, the U.S. Supreme Court handed down its ruling
in the second Brown decision, calling for desegregation of the public
schools with "all deliberate speed" under plans submitted by local school
boards under the guidance of the federal district courts. Also in the
interim, the Dade County Board of Public Instruction, in response to
requests from black parents for the enrollment of their children in
previously all white schools, issued a statement of policy which read
in part:
It is deemed by the Board that the best interests
of the pupils and the orderly and efficient adminis-
tration of the school system can best be preserved
if the registration and attendance of pupils enter-
ing school commencing the current school term (Fall,
1955) remains unchanged. Therefore, the Superinten-
dent, principals, and all other personnel concerned
are herewith advised that until further notice the
free public school system of Dade County will con-
tinue to be operated, maintained and conducted on a
nonintegrated basis.6
Dade County would therefore take no steps to desegregate its public
schools on a voluntary basis. On June 12, 1956, Theodore Gibson, local
president of the NAACP, filed suit on behalf of his son, Theodore, Jr.,
and five other black school age children in the federal District Court
for the Southern District of Florida, seeking the desegregation of Dade
County's public schools.
Ibid., September 1, 1954, p. CI, col. 2.
Gibson v. Board, 246 F.2d 913, 915, 2 RRLR 784.
Miami Herald, July 24, 1957, p. 1, col. 6.
-108-
G.E. Graves acted as the attorney for the plaintiffs and Jack Lloyd
represented the Board of Public Instruction (referred to hereinafter as
O
the Board). The action filed by Graves sought a declaratory judgment
to sustain plaintiffs' right to attend a nonsegregated school in Dade
County, Florida, in accordance with the Supreme Court's rulings in the
two Brown decisions. The black students contended that in accordance
with its stated policy, the Board continued to operate the public schools
on a segregated basis, and this constituted a violation of their con-
stitutional rights under the Fourteenth Amendment of the U.S. Constitu-
tion. The Board countered, in its motion to dismiss the complaint, that
no black student had made specific application for transfer to or enroll-
ment in a white school. The District Court shared this view and dismissed
the complaint.
As Judge Choate viewed the case, the primary legal issue was whether
or not his court had jurisdiction to decide the matter, whether an actual
controversy existed upon which he could rule. As his decision made
clear, Judge Choate answered the question in the negative. He agreed
that the district court had jurisdiction to render a declaratory judgment
in civil rights cases, but went on to point out that "Declaratory judg-
ments can be rendered only in cases of actual controversy, and this
Court is not empowered to render any advisory opinions." Since the
plaintiffs did not allege in their complaint that the Board denied them
admission to an integrated school, nor that any applications for admis-
sion were made, the lack of the essential element, denial by the Board
Ibid.
9
Gibson v. Board, 2 RRLR 10.
109-
of the students' constitutional rights, divested "the Court of the power
to proceed further in this proceeding."
With regard to the Board's statement of policy that the public
schools would continue to operate on a "nonintegrated" basis, Judge
Choate found it to be at most "a threat to deprive the Plaintiffs of
their rights but it does not constitute a deprivation as a matter of
law." Whether the Board would follow its own statement of policy or
the Brown ruling could not be determined, but the Judge was confident
that the Board members were honorable and did not take lightly their
oaths to support the Constitutions of the United States and Florida. As
Judge Choate saw the responsibilities of the district courts under the
second Brown decision, his Court was not to make policy for school
boards, but, quoting from Brown, 349 U.S. 301, "to consider the adequacy
of any plans ... to meet these problems and to effectuate a transition
1 7
to a racially nondiscriminatory system." Since there had been no plan
proposed by the Board, nor any act by the Board in denial of the black
students' rights, no justiciable cause was presented to the Court.
Judge Choate therefore dismissed the plaintiffs' suit without prejudice.*
Obviously, the plaintiffs were not pleased with Judge Choate's ruling and
instructed their attorney to file an appeal with the U.S. Court of
Appeals for the Fifth Circuit. The arguments of the parties remained
10Ibid.
"ibid.
12Ibid., p. 11.
*Dismissal of a suit without prejudice provides no impediment to
a future refiling of the same suit once the defect has been remedied.
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the same in the higher court, and the essential legal question continued
to be whether or not the plaintiffs had raised a justiciable controversy.
The case was heard in the Appeals Court by a panel composed of
Judges Richard Taylor Rives, Warren L. Jones, and John R. Brown. Judge
Rives prepared the opinion for an unanimous court, reversing Judge Choate,
and the decision was announced on July 23, 1957. The Court disposed
of the contentions of the Board out of hand by referring to two other
recent decisions. Quoting both the lower court opinion and that of the
Court of Appeals in Bush v. Orleans Parish School Board (also covered by
this study), Judge Rives ruled that the Board's position was without
merit. In the present circumstances, it was not necessary for the black
children to make application for admission to any particular school. In
explanation, Rives cited as precedent a recent Fourth Circuit case as
follows:
Defendants argue, in this connection, that plain-
tiffs have not shown themselves entitled to injunc-
tive relief because they have not individually
applied for admission to any particular school and
been denied admission. The answer is that in view
of the announced policy of the respective school
boards (that segregation would continue) any such
application to a school other than a segregated
school maintained for Colored people would have
been futile; and equity does not require the doing
of a vain thing as a condition of relief.15
13
Gibson v. Board, 246 F.2d 913, 2 RRLR 784;
14
,„„, 138 F-Supp. 337, 340 (E.D. La. 1956) and 242 F.2d 156 (5th Cir.
1 957) .
15
School Board of City of Charlottesville v. Allen, 240 F 2d 59
63-64 (4th Cir. 1956).
-111-
The Appeals Court also denied the Board's contention that the
plaintiffs were not entitled to relief because they had failed to exhaust
administrative remedies available under the recently passed Florida Pupil
Assignment Law of 1956. No law passed by any legislature, Rives stated,
could justify violation of the Constitution of the United States. As
long as segregation continued in Dade County schools, consideration of
the effect of any Florida laws on the assignment of pupils would be pre-
mature. Thus, Judges Rives, Jones, and Brown held that the district
court had erred in dismissing the complaint. They reversed its judgment
and remanded the case for further action in the lower court.
After a little over one year in the federal court system, the
Gibson case was back where it had started; Dade County's public schools
were still segregated. The only issue that had been decided was that
Theodore Gibson, Jr., and his friends did not have to apply for admission
to a particular all white school in order to have the right to prosecute
their federal suit. However, the situation in Dade County had changed.
Just prior to the announcement of the district court decision in Novem-
ber, 1956, Dade County's "Little White House" conference on education,
which included representatives of most major civic groups, had called for
at least some integration of the public schools, rather than closing
■jo
them down. Further, the legislature of Florida had provided the Board
with a means by which it could avoid the maintenance of an obvious
segregation policy. On July 26, 1956, the "Pupil Assignment Law" was
Fla. Stat. Ann., Sec. 230.232, Chap. 31380 (1956).
17Gibson v. Board, 2 RRLR 785.
1 8
New York Times, November 22, 1956, p. 43, col. 1.
-112-
enacted, providing for the assignment of public school students on the
19
basis of several non-racial factors. The statute allowed school
boards to continue segregating their schools without appearing to do so.
The factors to be considered were objective, but school boards were free
to apply them as they saw fit.
Although the school superintendent of the Dade County school system,
Dr. Joe Hall, told the district court, now with Judge Lieb on the bench,
that there was no segregation in his county, the black students con-
tinued to seek admission to all white schools with no success. Hall
argued that assignments were made according to the Florida Pupil Assign-
ment Law, which did not mention race and was evidence of Florida's and
Dade County's good faith compliance with the Brown decision.* Further,
Hall said, Gibson had not appealed the denial of his application according
to the new law's procedure, and thus had not exhausted administrative
20
remedies available to him. The Board also argued that the plaintiffs
were not entitled to maintain the suit as a class action. If such a
contention were sustained, in order to desegregate the public schools,
19
The Act was passed to promote the "health, safety, good order and
education of Floridians." The factors to be considered in pupil assign-
ment included: intangible social scientific factors; socio-economic
class consciousness of pupils; intellectual ability; scholastic pro-
ficiency; available facilities and teaching capacity; effect of admission
of new students on established academic programs; moral, ethical, cul-
tural backgrounds and qualifications, etc. 1 RRLR 924-25, citinq Fla.
Stat. Ann., Sec. 230.232.
*Dr. Hall's denial that segregation was still the policy in Dade
County was difficult to reconcile with comments he made regarding school
admission applications not covered by the Gibson suit. In dealing with
the denial of four black students' applications for admission to Orchid
Villa Elementary School, an all white school located in a neighborhood
that was changing from white to black, he admitted that the race of the
students was one of the factors considered. New York Times, September,
27, 1958, p. 43, col. 4.
20
Ibid., August 21, 1958, p. 14, col. 4.
-113-
each individual black child seeking admission to a previously all white
school would have to file suit in federal court if their application for
admission was denied. The chilling effect of such a laborious and ex-
pensive process is obvious.
In their suit amended to emphasize as plaintiffs' prayer for relief,
Reverend Gibson and the black parents asked for 1) a declaratory judgment
that certain portions of the Florida Constitution and Florida law be
declared unconstitutional in that they violated the Fourteenth Amendment
of the Constitution of the United States by requiring segregation by race
in the public schools of Florida; 2) an order of the Court requiring the
Board to promptly present a desegregation plan for the Dade County
schools; and 3) an injunction preventing the Board from requiring plain-
tiffs or other Negroes to attend any particular Dade County public
21
schools because of their race. The Board contended that the offending
statute and portion of the Constitution had been rendered void by the
Brown decision; that the Board's resolution to continue segregation had
been superseded by the passage of the Pupil Assignment Law by the Florida
Legislature in July, 1956; and that all subsequent pupil assignments
were and continued to be made in accordance with the provisions of that
Law.22
Judge Lieb heard the case without a jury, and on December 22,
1958, presented his opinion. Referring again to the Orleans
Parish case cited by Judge Choate in the earlier district court
hearing, he ruled that the plaintiffs were entitled to
21
Gibson v. Board, 170 F.Supp. 454, 4 RRLR 21, 22 (S.D. Fla. 1958).
22Ibid., 4 RRLR 22-23.
-114-
bring the action as a class suit and the Florida statute and Constitu-
tional provision were unconstitutional, but denied the plaintiffs'
request for a court ordered plan for desegregation of the schools and an
injunction against the Dade County School Board. Judge Lieb also held
that while the requirement of segregation was unconstitutional, the
Pupil Assignment Law was valid and met the requirements of a reasonable
desegregation plan. Students would be assigned to schools without
reference to race under the new law. Further, since the plaintiffs had
not directly challenged the Pupil Assignment Law, it was entitled to a
25
presumption of validity. The only relevant state law was the Pupil
Assignment Law, and the previous practice of segregation under the State
Constitution and laws (now void) and the 1955 Board resolution (now
superseded) did not excuse the plaintiffs from following the procedures
provided for by the Pupil Assignment Law. In the present case, Lieb
argued, plaintiffs had withdrawn and abandoned appeals before the Board
of Public Instruction after their applications for admission were denied
by the School Superintendent. If the plaintiffs believed that they were
being denied admission because of their race, they had this appeal
available to them, as well as a further review by the State Board of
Education. Then and only then, could they appeal to the courts. The
23
The statute prohibited the operation of any public, private, or
parochial school in which blacks and whites were taught or boarded
together. The Constitutional provision read as follows: "White and
colored children shall not be taught in the same schools, but impartial
provision shall be made for both." Fla. Stat. Ann., Sec. 238.09, Chap.
19355 (1939) and Fla. Const, art. 12, sec. 12 (1885).
24
Gibson v. Board, 4 RRLR 23.
Ibid.
-US-
Supreme Court of the United States had approved just such a procedure in
Shuttlesworth v. Birmingham Board of Education, Alabama, 358 U.S. 101
(1958), a case which had arisen in the Fifth Circuit. Further, the
Alabama law there involved and the Florida law in the present case were
almost identical. In neither instance was the law invalid on its face,
and any improper application of both laws would only be revealed by
following the review procedures provided. Therefore, Judge Lieb held,
the plaintiffs had adequate remedies available to them under the Pupil
Assignment Law.
As a result of two and one-half years of litigation, the only change
which had occurred was the formal declaration that Florida's segregation
provisions were invalid. However, no black students had been admitted
to any white schools. The races were as separate in education as they
had always been under the Florida Constitution of 1885. Nevertheless,
Gibson's suit was essential for desegregation in Dade County. The School
Board could no longer claim a legal justification for segregating the
schools, a substantial barrier to vindicating the plaintiffs' constitu-
tional rights.
With court-ordered plans and injunctive relief denied to them,
Gibson and the NAACP now looked to Miami's Orchid Villa Elementary School
27
where four black students were seeking admission. The Board of Public
Instruction of Dade County had a surprise in store for those trying to
desegregate the public schools. In an action which drew the praise of
Florida Governor Leroy Collins and the denunciation of many of the state
26Ibid., pp. 23-25.
27
Miami Herald, December 28, 1958, p. CI, col. 7.
legislators, on February 18, 1959, the Board voted to admit four black
students to previously all white Orchid Villa Elementary School.28 The
students involved were Sherry Joseph, age six; Irene Amanda Glover, age
90
seven; Jan Glover, age nine; and Gary Range, age six. All of them
were children of middle class black families.*
The members of the Board, Jess Yarborough, C.T. HcGummon, Robert S.
Butler, Jane Roberts, Anna Brenner Meyers, C. Raymond Van Dusen (Chairman),
and Helen J. Vosloh, were a varied group of individuals, running the
gamut from segregationist to integrationist and including both northerners
30
and southerners. However, they were all relatively united regarding
the strategy that the Board should follow. The proposal was initiated
by Board member Dr. Robert S. Butler as a means to integrate the public
schools through the application of the Pupil Assignment Law rather than
31
through litigation. Small scale, voluntary integration was seen as a
way to avoid mass, court ordered integration, to demonstrate the Board's
good faith attempts to comply with the Brown decision, to establish the
Pupil Assignment Law as an acceptable plan for desegregating the Dade
County public schools, and to forestall NAACP attorney Edwin L. Davis'
op
New York Times, February 19, 1959, p. 19, col. 1. Orchid Villa
Elementary was located in an area of low income whites which was begin-
ning to change into a black neighborhood. Hostility to desegregation
in this situation was intense.
29
Miami Herald, Febraury 19, 1959, p. 1, col. 4.
*The parents were Robert N. Prymus, a barber, and his wife (the
Glover children), a cafe owner, Selwyn Joseph and his wife, and Oscar
Range, a funeral home owner. Ibid. , p. 11, col. 2.
30Ibid., p. 7, col. 3.
31 Ibid., p. 1, cols. 4 and 7.
-117-
threat to extend race-mixing under the Pupil Assignment Law to test the
32
Board s good intentions.
As the opening of the 1959 fall term approached, it became obvious
that few whites would attend Orchid Villa with the four new black
students. Only ten white children were registered for a school which
33
only the year before had 420 students. In fact, on opening day only
eight of the white children appeared for classes. Both the School Super-
intendent and NAACP head Theodore Gibson agreed that this under-utiliza-
tion of the school could not be the answer. Additional requests for
transfer by black students were being considered by the Board. Al-
though desegregation remained peaceful and drew renewed praise from
35
Governor Collins, a few more white students came to Orchid Villa, but
the highest number reached was only fifteen. The School Superintendent
recommended that about 400 more black students be admitted to Orchid
Villa. Three hundred and seventy-nine black students were so assigned,
and the white teaching and administrative staff was replaced by a black
one, with a substantial likelihood of white transfers out of Orchid
Villa. Theodore Gibson charged that the Board was acting in bad faith.
At the same time, the Board refused the transfer applications of five
other black students, including his son, to previously all white
32
Ibid., February 19, 1959, p. 7, col. 1, and Febraury 20, 1959,
p. 2, col. 7.
33Ibid., September 8, 1959, p. 1, col. 2, and September 9, 1959,
p. 1 , col . 1 .
34
Ibid., September 9, 1959, p. 1, col. 1.
35
New York Times, September 10, 1959, p. 24, col. 4, and Hi ami
Herald, September 10, 1959, p. 1, col. 4.
-118-
schools. Perhaps in response to the cricisms raised by Gibson, the
white student applications for transfer out of Orchid Villa, now almost
entirely black, were denied by the Board on the recommendation of
Dr. Hall.37
The circle for Orchid Villa Elementary School was now complete.
What had once been a white elementary school with a few token black
students was now a black elementary school with a few token white stu-
dents. All of the effort to establish the Board's good faith in the
application of the Pupil Assignment Law and to demonstrate that the Law
constituted a valid desegregation plan for the Dade County schools had
hardly been a success.
While Gibson's lawyer had predicted that the real test of desegre-
gation in Dade County would come at the Orchid Villa Elementary School,
he did not abandon prosecution of Gibson's suit. Joined by Robert L.
Carter of New York City as co-counsel, Attorney Graves appealed Judge
Lieb's decision to the Court of Appeals for the Fifth Circuit. The case
was heard by Judges Rives, Brown, and a relatively new addition to the
Court, John Minor Wisdom. As before, Judge Rives wrote the opinion
expressing the unanimous judgment of the Court, which was handed down
on November 24, 1959.39
36Miami Herald, October 8, 1959, p. 1, col. 2.
37Ibid., October 22, 1959, p. 1, col. 5.
New York Times, November 26, 1959, p. 1 , col . 1.
Gibson v. Board, 272 F.2d 763, 4 RRLR 859 (5th Cir. 1959).
-119-
Most of the issues involved in the original action had already been
determined in the two previous district court hearings and the earlier
hearing in the Court of Appeals. The Appeals Judges really had to
determine only whether the Florida Pupil Assignment Law was a desegre-
gation plan which met the mandate of the second Brown decision, a ques-
tion they answered in the negative. The Dade County School Board main-
tained that the Pupil Assignment Law met the Brown demand for a de-
segregation plan, and that the Law had been fairly and equitably applied.
Theodore Gibson, Jr., and the NAACP totally disagreed.
In his decision, Judge Rives provided a brief history of the Florida
Pupil Assignment Law which had been passed soon after Gibson's original
complaint had been filed. The School Board initially adopted an
"Implementation Resolution" which indicated that pupil assignments would
be made according to the new law, but kept them as they had been before
40
for the school year 1956-57. Thereafter, the Board would assign all
students individually.
The forms to be used were cards which did not indicate any choice
of schools but in one corner the solitary word "School" was followed by
a blank. There was no indication that the Board would consider assigning
black children to other than their hitherto segregated schools. With a
very few exceptions, all of those engaged in the process (principals,
teachers, and parents) were unaware that the Board's previous policy of
segregation had been abandoned.
At the time of the district court's remand hearing in the Fall of
1958, complete actual segregation of teachers and students continued to
40Ibid., 4 RRLR 860.
-120-
exist in Dade County. Further, and quite importantly according to Judge
Rives, certain census records and other Board forms continued to reflect
a formally segregated, dual school system. For example, a Board form,
caption "PUBLIC SCHOOLS, DADE COUNTY, FLORIDA, 1958-59 SUBSTITUTE
41
TEACHERS GUIDE," listed the various schools in the county under the
headings "WHITE" and "NEGRO." Superintendent Hall explained that the
list did not refer to pupils but indicated that instructional personnel
were all either one race or the other, but his argument met with little
success before the Court. Rives argued that the distinction had little
meaning, since schools with all black teachers also had all black students
and no white ones. Public school segregation continued, he said, at the
time of the trial. Therefore, the Pupil Assignment Law together with
the Board's "Implementing Resolution" did not constitute an acceptable
desegregation plan nor a reasonable start toward compliance with Brown.
The machinery provided by the law and resolution could be used either to
43
desegregate the schools or to continue segregation.
To instruct the lower court, the litigants, and any possible future
litigants, Rives discussed the Shuttlesworth case relied upon by Judge
Lieb in the district court. That decision was affirmed by the Supreme
Court "upon the limited grounds on which the District Court rested its
44
decision," and limited its approval of the Alabama School Placement
Ibid.
42T. .,
Ibid.
43Tk. .
Ibid.
44
Ibid., citing Shuttlesworth v. Birmingham Board of Education,
358 U.S. 101 (1958).
-121-
Law "to the constitutionality of the law upon its face." Judge Rives
distinguished Shuttlesworth from Gibson by pointing out that in the
former the plaintiffs had exhausted their administrative remedies and
confined their attack to the constitutionality of the law on its face.
The Shuttlesworth case afforded no support for the district court's
opinion for in that case the plaintiffs had limited their attack to the
constitutionality of the law as it was written, not as it was applied.
In the present case, the situation was quite different, for the plain-
tiffs argued that the Pupil Assignment Law was not a desegregation plan
and had been applied unfairly.
Judge Rives reaffirmed the Court of Appeals previous ruling that
as long as Dade County's schools remained segregated, it would be premature
to consider the effect of the Pupil Assignment Law. Since there were no
integrated schools at the time of trial, assignment of students could not
be constitutional. Judge Lieb's decision was therefore reversed, and the
case sent back to the district court. Judge Rives advised the Board to
submit a desegregation plan, and if the district court approved the plan,
a transition period would be allowed for the changeover to a desegre-
gated school system. In any event, the district court was to proceed
in accordance with the Court of Appeals and Brown opinions and retain
4fi
jurisdiction over the case. Rives, for the unanimous court, did not,
however, order a speed-up in desegregation for Dade County, nor did he
rule on Theodore Gibson's request for immediate desegregation. The
45
Ibid., p. 862, citing Shuttlesworth v. Board, 162 F.Supp. 384.
J bid .
47
Miami Herald, November 25, 1959, p. 1, col. 1.
-122-
Court of Appeals limited its ruling to the precise question presented:
Did the Florida Pupil Assignment Law serve as a desegregation plan for
the Dade County schools? The Court's answer was no.
There were to be no more decisions from the Court of Appeals nor the
district court in the Gibson case, either within the time period covered
by this study or thereafter. The district court maintained jurisdiction,
but the parties to the suit initiated no further legal action.* Hence-
forth, desegregation proceeded by negotiation and compromise. Theodore
Gibson, Jr.'s involvement with the desegregation of Dade County's public
schools was not quite finished, however, for he continued to seek
admission to a previously all white school. In June of 1960, the Board
announced its decision to expand desegregation in Dade County by ad-
mitting two sisters, Barbara and Rosetta Pearson, to Fulford Elementary
School and North Miami Beach Junior High School, respectively. At the
same time this decision was reached, the Board denied applications for
admission by twelve other black students to all white Miami Jackson
48
High School. Among those twelve applicants was Theodore Gibson, Jr.
The Board gave no reasons for any of these decisions.
The situation in Dade County had changed substantially since the
Gibson case was first filed in 1956. State statutes requiring
*The Court of Appeals had suggested that the Board submit a plan
for the application for admission of plaintiffs and other black students
without regard to race to any schools for which they were qualified. In
January, 1960, the Board filed a plan in the District Court "consistent
with the higher Court's mandate," and in March, 1960, the District Court
issued an order approving the Board's plan. Ernest Lacalomito, Deputy
Clerk of the U.S. District Court for the Southern District of Florida,
private telephone interview in Miami, Florida, June 15, 1978.
48
Miami Herald, June 30, 1960, p. 1, col. 5.
-123-
segregation had been invalidated, and by the beginning of the school
year in the Fall of 1962, the ongoing process of integration of the
public schools was proceeding slowly but smoothly and was no cause for
49
disturbance. The plaintiffs, Gibson et al_. , were forced to complete
their public education in Dade County in racially segregated schools,
but the suit they brought induced the Board of Public Instruction to
begin a program of token integration. Once begun, that program, and the
slow shift of public sentiment in favor of maintaining the public
school system in Florida, was hard to limit. Token desegregation was
replaced in the late 1 960 ' s and early 1970's with active integration
under HEW guidelines and a new policy in the Fifth Circuit.
It would be misleading to generalize the situation in Dade County
and its relatively peaceful surroundings to all of Florida or the rest
of the South. Clearly, the circumstances in Miami were not typical, for
a large segment of the population was not Southern in either birth,
upbringing, or outlook. As evidenced by the results of the "Little
White House" meeting in 1956, a majority of the civic leaders in the
area were at least prepared to accept some integration to maintain the
public school system. The federal courts were not faced with implacable
opposition. The litigation, however, was fairly typical of the great
majority of the school cases during the 1950's. Gibson was a relatively
simple case. The district court decisions reflected local attitudes,
but were arguably in conformity with the Brown decision. The Court of
Appeals, in reversing those decisions, indicated that the error of the
lower court had been a misreading of the Supreme Court's mandate.
49
New York Times, September 7, 1962, p. 30, col. 7.
-124-
Finally, the issues of law and fact were not complex, and the district
court did not defy the Appeals Court's rulings.
Thus, Gibson v. Board of Public Instruction of Dade County was a
relatively unremarkable case, except that it dealt with the first public
school desegregation in Florida and was the catalyst for the beginning
of voluntary desegregation in Miami. It ne^er attracted real national
attention or comment. That this was true becomes even clearer when
Gibson is compared to the two subsequent desegregation cases which will
be examined. These features made Gibson a fair representative of the
mass of desegregation suits, and thus essential for inclusion within
this study.
CHAPTER V
THE CASES (2): THE FACTUAL SETTING,
BORDERS v. RIPPY
In the previous chapter, the relatively uncomplicated case of
Gibson v. Board of Public Instruction of Dade County was examined. The
legal issues there involved included the right of the plaintiffs to bring
suit, the status of the school board's alleged desegregation plan as
compliance with the Supreme Court desegregation decision, and the impact
of state law on desegregation of the public schools. The Gibson case was
important largely as an example of the majority of school cases decided
in the Fifth Circuit during this period. It was the exception rather
than the rule for desegregation suits to require more than a few hearings.
Further, desegregation in Miami came not as a direct result of the liti-
gation but rather as a voluntary reaction against it. The case which is
the subject matter of this chapter involves many of the same issues, but
where Gibson was relatively simple, it is complex. The factual situation
was not really more involved, but the relationship between the District
Court and the Court of Appeals for the Fifth Circuit was quite different.
This change made Borders v. Rippy* a model of conflict between the two
lower tiers of the federal court system.
*This case had several different names during its journey through
the federal courts. What follows is a f ul 1 citation for all of the
hearings which were reported. Bell v. Rippy, 133 F.Supp. 811, 1 RRLR 318
(N.D. Tex. 1955); Brown v. Rippy, 233 F.2d 795, 1 RRLR 649 (5th Cir.
1956); cert. den. Rippy v. Brown, 352 U.S. 878, 77 S.Ct. 99 (1956); Bell
v. Rippy, 146 F.Supp. 485, 2 RRLR 32 (N.D. Tex. 1956); Borders v. Rippy,
247 F.2d 268, 2 RRLR 805 (5th Cir. 1957); pet. for rehearing, Borders v.
Rippy, 2 RRLR 984 (5th Cir. 1957); Borders v. Rippy, 2 RRLR 985 (N.D. Tex.
-125-
-126-
The litigation in Borders v. Rippy took almost six years in the
federal courts, from 1955 to 1961, before desegregation of the schools
was begun. Between the District Court for the Northern District of
Texas and the Fifth Circuit Court of Appeals, there were over twelve
hearings in the case, equally divided between the two courts.1 From
1955 through 1957, the case was tried in the district court by Judge
William H. Atwell and from 1958 through 1961 by Judge T. Whitfield
Davidson. During the various hearings in the Court of Appeals, all
seven of the Judges included in this study, at one time or another heard
the case.
The purpose of the suit was desegregation of the public schools of
Dallas, Texas. The legal issues involved can be separated into the two
basic categories: procedural questions and substantive questions. In-
cluded in the first category were 1) whether or not the original action
constituted a timely filed justiciable controversy, and 2) whether or
not the plaintiffs, black school-age children, had exhausted available
1957); Rippy v. Borders, 250 F.2d 690, 3 RRLR 17 (5th Cir. 1957);
Borders v. Rippy, 4 RRLR 877 (N.D. Tex. 1959); Boson v. Rippy, 275 F.2d
850, 5 RRLR 392 (5th Cir. 1960); Borders v. Rippy, 184 F.Supp. 402, 5
RRLR 679 (N.D. Tex. 1960); Boson v. Rippy, 285 F.2d 43, 5 RRLR 1048 (5th
Cir. 1960); Borders v. Rippy, 195 F.Supp. 732, 6 RRLR 746 (N.D. Tex. 1961)
For the balance of this chapter, individual citations will be given for
each hearing. The choice of Borders v. Rippy as the generic name for the
case was based upon both frequency and common usage. The last hearing in
the case occurred after the end of the period under examination. It is
included to indicate the final disposition. All decisions and hearings
in the case were not published in the official law reports.
The Supreme Court was very briefly involved in this case. In
Rippy v. Brown, 352 U.S. 878, 77 S.Ct. 99 (1956), the Court denied
certiorari, thus in effect affirming the first decision of the Court of
Appeals for the Fifth Circuit. From that time on, the Court of Appeals
was the final arbiter.
-127-
administrative remedies under state law before seeking review in the
federal courts. Among the substantive matters to be determined were
1) the timing or pace of desegregation in Dallas, 2) the good faith of
the efforts toward desegregation by the Dallas School Board, and 3) the
impact of Texas public school law upon the rights of the plaintiffs and
the duties of the defendant.
Although these legal questions had to be resolved before desegre-
gation began, the real story of Borders v. Rippy was the relationship
between the District Court and the Court of Appeals, and the reaction of
the lower court judges to the opinions of the Appeals judges. The
reasonably amiable process of education observed in the Gibson case was
absent here, for the judges of the District Court and the Court of Appeals
had quite different views of what the Supreme Court required of them
under the Brown desegregation decisions.*
The action in Borders v. Rippy was filed originally in July, 1955,
2
as Bell v. Rippy. The plaintiffs were twenty-eight black children who
were denied entrance to the public schools nearest their homes because
of their race and were assigned to public schools maintained for Negroes.
*Research on this chapter presented some serious difficulties.
Reference to the Dallas case was very limited in the New York Times and
attempts to obtain relevant portions of the Dallas News through inter-
library loan have produced nothing. Of the six and one-half year period
requested, only one month (in the wrong time period) has arrived.
Nothing has come in for the last several months even though a subsequent
request was made. As a result, the information in this chapter is
limited almost entirely to that found in the reported decisions. A
further difficulty lies in the fact that not all hearings in and activity
by the courts was reported either in the official legal reporting system
or in the Race Relations Law Reporter. As a result, a very limited
amount of the material presented has been reconstructed through reference
to reported decisions.
2
See, Boson v. Rippy, 275 F.2d 859, 5 RRLR 392 (5th Cir. 1960).
-128-
The defendant, Dr. Edwin L. Rippy, was sued in his capacity as the presi-
dent of the Board of Trustees of the Dallas Independent School District
(referred to hereinafter as the Board or School Board). At trial, the
basic facts were agreed to by the defendant, for the Board admitted that
the plaintiffs had been denied admission because of their race.
The position of the School Board had been established even before
the suit was first heard for trial. In response to the Brown desegrega-
tion decisions, the Board had issued statements of policy in July of
1955. First, the Superintendent of Schools was directed to begin a
detailed study of the schools and the difficulties that would have to be
met under an integrated school system. The Board then unanimously ap-
proved a statement of policy as follows:
It was reported that this School System has been,
is at present and will be obligated to continue an
intensive study of the problems involved in twelve
specific areas,* and that reports would be made to
the public of these studies periodically. It will
be impractical to attempt integration until these
studies are completed. Therefore, the Superinten-
dent of Schools is hereby instructed that there
3Borders v. Rippy, 247 F.2d 268, 2 RRLR 805 (5th Cir. 1957).
*The twelve areas were "1 . Scholastic boundaries of individual
schools with relation to racial groups contained therein. 2. Age grade
distribution of pupils. 3. Achievement and state of preparedness for
grade level assignment of different pupils. 4. Relative intelligence
quotient scores. 5. Adaption of curriculum. 6. The overall impact on
individual pupils scholastically when all of the above items are con-
sidered. 7. Appointment and assignment of pupils. 8. The relative
degree of preparedness of white and negro teachers; their selection and
assignment. 9. Social life of the children within the school. 10. The
problems of integration of the Parent-Teachers Association and the Dad's
Club Organization. 11. The operation of the athletic program under an
integrated system. 12. Fair and equitable method of putting into effect
the decrees of the Supreme Court." Borders v. Rippy, 247 F.2d 268, 2
RRLR 805, 806 (5th Cir. 1957).
-129-
shall be no alteration of the present status of
the schools of this district in the term beginning
September 1955. 4 (footnote added)
In the meanwhile, the public schools of Dallas, Texas, would continue to
be segregated. It was against the implementation of the above policy
that the plaintiff school children sought relief.
5
The suit in Bell v. Rippy was a class action heard in the U.S.
District Court for the Northern District of Texas by Judge William H.
Atwell. The plaintiffs asked for a declaration of their rights to attend
the schools of Dallas on a non-segregated basis and injunctive relief
against the officials of the Dallas schools to prevent them from main-
taining a segregated school system. They cited the Brown decision as the
direct basis for their claim. In reply, the School Board maintained that
it was complying with the desegregation decision, by undertaking its
study.
In his very brief opinion upholding the School Board's position,
rendered on September 16, 1955, Judge Atwell noted that although the
Supreme Court had declared segregation in the schools illegal and un-
constitutional, schools for whites and blacks in Dallas were substan-
tially equal, a fact "of which the court had judicial knowledge."
4 1 b i d .
5133 F.Supp. 811, 1 RRLR 318 (N.D. Tex. 1955).
Bell v. Rippy, 1 RRLR 319. This statement constituted what is
known as "judicial notice." By this device, judges may consider eviden-
tiary matter which has not been proved in court but which is widely
accepted as true by common knowledge. Thus, for example, one need not
prove that the sun appears to rise in the East. Of course, judicial
notice, like any other legal device, may be subject to abuse.
-130-
According to Atwell, all of the law as declared by the various courts in
the country, "agreed upon the proposition that when similar and con-
venient free schools are furnished to both white and colored that there
exists no reasonable ground for requiring desegregation." Judge Atwell
further argued that the Supreme Court required that segregation be done
away with only after the local school officials and the lower courts had
worked out a proper desegregation plan. Since there was as yet no plan,
to grant injunctive relief would be premature, would ignore the equities,
and would usurp a function to the court not contemplated by the Supreme
Court. Judge Atwell therefore dismissed the case without prejudice to
p
be refiled at some later date.
The black school children immediately appealed Judge Atwell 's ruling
to the Court of Appeals for the Fifth Circuit. The appeal was heard
g
under the name, Brown v. Rippy, before Chief Judge Hutcheson and Circuit
Judges Cameron and Brown. The decision reversing the lower court was
rendered in a per curiam* opinion on May 25, 1956, from which Judge
Cameron dissented.
In its very brief opinion, the Court concluded that the district
court had mishandled the case completely. The district judge had ap-
parently declined to hear any evidence, believing that there were no
7Ibid.
Ibid.
9
233 F.2d 796, 1 RRLR 649 (5th Cir. 1956).
*Per curiam opinions are those prepared by the court as a whole
rather than authored by a single judge speaking for the court. They
are generally brief and most often used in cases in which the law is
clear and there is little real dispute over facts.
-131-
facts in dispute and that the plaintiffs had agreed with the explanation
given by the Board. Indeed, the plaintiff school children argued on
appeal that the lower court judgment was entered under a complete mis-
apprehension of both the facts and the law.
In disposing of Judge Atwell ' s rather novel procedure and reading
of the law, the Court of Appeals was both blunt and terse:
We think it quite clear that there is no basis in
the evidence for the action taken by the district
judge, none in the law for the reasons given by
him in support of his action. The judgment is
accordingly VACATED and REVERSED and the cause is
REMANDED with directions to afford the parties a
full hearing on the issues tendered in their plead-
ings . ' 0
One rarely finds such a direct and complete rejection of lower court
action. Apparently, the majority felt there was nothing of merit in
Judge Atwell's opinion to warrant discussion.
With such a clear expression of disapproval, one would not expect
any disagreement on the Court of Appeals. In fact, Judge Benjamin
Cameron entered a lengthy and empassioned dissent which was character-
istic of his view in desegregation suits. The burden of that opinion
was that the Board had acted in good faith and the plaintiffs' suit was
indeed premature. Cameron argued the Supreme Court had clearly recog-
nized that the problem would take time to work out and that primary
responsibility and authority for desegregating the schools would rest
with state and local authorities. He urged that "as long as these of-
ficials were proceeding in good faith with deliberate speed . . . the
Brown v. Rippy, 1 RRLR 650.
-132-
Supreme Court did not intend that they be subjected to harassment by
vexatious suits or by the intervention of the courts." Courts should
not act until local school officials had an opportunity to do so. Judge
Cameron further argued that the suit was premature because the plain-
tiffs had not first exhausted administrative remedies available to
them.*
According to Judge Cameron, the facts showed that the Dallas school
authorities were proceeding in good faith to desegregate the schools and
had agreed that the plaintiffs had the right to attend the schools of
their choice without regard to race. He maintained that there was no
justiciable controversy, for "the only point at issue related to
12
timing." The administrative and budgetary difficulties involved in
desegregating schools which had been segregated for ninety years was more
than sufficient justification for the Board's denial of the plaintiffs'
requests for admission, and required allowing the school authorities to
apply their expertise to resolve any problems. Dallas had over one
hundred schools and nearly 100,000 students. Each of the schools and
students presented a different circumstance to be considered in "light
1 3
of many other considerations besides race." Moreover, Cameron said
that nothing in the plaintiffs' complaint nor in the facts showed that
the Board was not acting in good faith.
nibid., p. 651.
*What these administrative remedies were was never made clear.
12Ibid., p. 653.
13Ibid., p. 652.
-133-
The decision was unacceptable to the Board, but the Supreme Court
denied their request for certiorari, declining to hear the case and in
effect affirming the Court of Appeals decision. The Board also issued
its "Second Statement on Desegregation by the President of the Board"
which concluded that:
The Board recognizes its responsibility to implement
the decree of the Supreme Court, but it reaffirms its
studied opinion that it would be derelict in this
regard if it ordered an alteration in the status of
its schools until its understanding of the problems
involved is as comprehensive as possible and its
plans for such changes are completed. This Board
feels that it cannot and should not in good conscience
accept the responsibility for the manner in which the
decree of the Supreme Court is to be carried out
until it has had sufficient time within which to
formulate plans which must be to the best interests
of this school district, its children, and the com-
munity.
* * *
Therefore, for the immediate future this Board feels
that any change is premature and instructs the
Superintendent of Schools to continue a segregated
school system for the school year 1 956-1 957 . 1 5
The School Board would therefore do nothing towards desegregating the
schools. Instead, it would continue to study and watch before it would
carry out its responsibility, so clearly fixed by the Supreme Court and
identified by Judge Cameron in his dissent.
On remand, the case was again heard in the district court by Judge
Atwell under the title, Bell v. Rippy. The contentions of the parties
remained as they had been in the original suit. Atwell repeated his
4Rippy v. Brown, 352 U.S. 878, 77 S.Ct. 99 (1956)
15Borders v. Rippy, 2 RRLR 806-807.
16146 F.Supp. 485, 2 RRLR 32 (N.D. Tex. 1956).
134-
earlier performance in the suit and again dismissed the suit without
prejudice on December 19, 1956.
Judge Atwell's opinion combined a disregard for the Brown decision
and his novel counterpart to civil rights, civil wrongs. He noted that
the Court of Appeals had reversed his opinion and commented that Judge
Cameron's dissent was "most convincing and somewhat elaborate in his
"I Q
citation and reasoning." The Judge then went on to point out the long-
standing tradition of segregated schools in Texas and the very recent
desegregation decisions of the Supreme Court. The Supreme Court, Atwell
opined, had "based its decision on no law but rather on what the court
regarded as more authoritative, modern psychological knowledge." The
Judge then said that the evidence showed substantially equal education
was available to "white and colored" pupils and the sole question was
whether keeping apart the two races was a deprivation of any constitu-
tional right.* He felt that the School Board was doing its best to comply
with the rulings of the Supreme Court and its "suggestion" that the
20
parties carefully seek to integrate.
This creative reasoning provided the prologue for the main thrust
of Judge Atwell's argument. The suit was brought "under the national
Bell v. Rippy, 2 RRLR 33. Judge Atwell was indeed a venerable
jurist. At the time of the second Rippy hearing in his court, the Judge
was eighty-six years of age. New York Times, December 20, 1956, p. 1,
col. 2, and p. 33, col. 3.
18Bell v. Rippy, 2 RRLR 32.
19
Ibid., p. 33.
♦Apparently, Judge Atwell did not believe the Supreme Court had
settled the question.
Ibid.
-135-
civil rights of the Constitution" and not under state statutes which
required segregation, as the attorney for the Board argued. Thus, there
were national civil rights for all people provided by the Constitution.
There being civil rights, Judge Atwell argued, there were also "civil
wrongs." There were about 119,000 students in Dallas, 15 per cent of
whom were black. Dallas was growing and the School Board was constantly
increasing its expenditures to expand school facilities. Since the white
schools were already overcrowded, integration would require white stu-
dents to get out to make room for black students. That would be "un-
21
thinkably and unbearably wrong." It would be a "civil wrong." Thus,
Judge Atwell argued, no equity required the granting of the requested
injunctive relief, and the School Board should be given ample time to
continue its attempts to solve the problem.
Again, the plaintiffs sought the reversal of Judge Atwell's decision
in the Court of Appeals. The case was heard this time under the name of
22
Borders v. Rippy, before Circuit Judges Rives, Brown, and Jones, who
once again reversed Judge Atwell's decision. The decision was rendered
in an opinion written by Judge Rives for an unanimous court on July 23,
1957.
In his opinion, Rives recounted the basic facts of the case and the
School Board's claims that it was complying with the Supreme Court de-
cisions, that the schools were overcrowded, and that the scholastic apti-
tudes of the black and white students were so far apart that there were
insufficient teachers to adequately instruct those pupils. He also noted
21Ibid.
Z2247 F.2d 268, 2 RRLR 805 (5th Cir. 1957).
-1 36-
the Board's claim that the plaintiffs had not appealed to the State
Commissioner of Education as required under the laws of Texas and there-
by had failed to exhaust their administrative remedies.
Citing a series of cases decided within the Fifth Circuit (including
the case which will be the subject of the next chapter), Rives held that
the School Board and the Superintendent had "denied the plaintiffs the
right to attend public schools of their choice solely on account of their
23
race or color, and this action alone deprived the plaintiffs of their
constitutional rights. No administrative review could constitute a pre-
requisite to seeking redress in the federal courts. As to the Board's
claim that overcrowding prevented immediate desegregation, Rives rejected
24
it as an excuse for excluding pupils on the basis of race.
Rives then announced what served as a basic philosophy of the
Fifth Circuit Court of Appeals in school desegregation cases for the
1950's and the early 1960's. "The equal protection and due process
clauses of the fourteenth amendment do not affirmatively command inte-
gration, but they do forbid any state action requiring segregation on
25
account of their race or color of children in the public schools." The
Court reversed its policy in 1967 in the case of U.S. v. Jefferson County
Board of Education, 372 F.2d 836 (5th Cir. 1966), on rehearing en banc,
380 F. 2d 385 (5th Cir. 1967), under the leadership of John Minor Wisdom,
who called for affirmative action to achieve integration lock, stock, and
barrel. The Court was to move from passive desegregation to active
3Borders v. Rippy, 2 RRLR 807.
Ibid.
25Borders v. Rippy, 2 RRLR 807.
-137-
integration. Constitutional rights were denied when plaintiffs were
excluded because of their color, and it was not a sufficient answer to
say that the Board had made a prompt and reasonable start toward good
faith compliance. Judge Atwell's district court had a responsibility to
retain jurisdiction to require actual good faith compliance, Rives said,
"Faith by itself, however, without works, is not enough. There must be
'compliance' at the earliest practicable date."
Applying these standards, Judge Rives ruled that the lower court
decision had to be reversed. The plaintiffs' prayer for relief had only
asked that the Board be required to desegregate its schools with "all
deliberate speed." For the Court, Rives held that "at least to that much
27
they are certainly entitled," and directed the district court to enter
such a decree.
The Rippy case did not immediately return to the district court for
a third hearing. After the appeal from Judge Atwell's second opinion was
taken but before the Court of Appeals decision was announced, the Texas
legislature took certain steps to maintain a segregated school system
throughout the state. On Hay 23, 1957, Governor Price Daniel signed into
law two pieces of public school legislation. The first was a "Pupil
28
Placement Act" which gave school boards the authority to assign pupils
based on a number of standards, and provided for limited appeals and
state court review. The provisions of this Act were similar to the
Florida pupil assignment law discussed in the Gibson case. It also
26Ibid., pp. 807-
27Ibid., p. 808
28
Chapter 283 of the 1957 Texas Legislature, Vernon's Annotated
Civil Statutes of Texas, Art. 2901(a).
-138-
provided that no children would be forced to attend racially mixed
schools if their parents or guardians objected.
29
The second law, which was to be involved in subsequent litigation
in the Rippy case, required a local option election in each school dis-
trict on the abolition of the dual or segregated schools. In order to
abolish segregated schools, 20 per cent of the qualified voters in a
school district had to sign a petition calling for an election. Future
desegregation by any other means would be illegal.* Any individual who
violated its provisions would be fined and in any school district that
had already been integrated without the local option election, the
schools would be ineligible both for accreditation and for "Foundation
Program Funds," i.e., all state financial aid. In other words, no seg-
regation, no money. In addition, in a special session, the legislature
created further obstacles to school integration. It passed a school
closing law which provided for closing the schools when violence or the
danger of violence could only be prevented by the use of troops; a law
authorizing the Attorney General to aid school boards in litigation in
federal courts challenging the constitutionality of state statutes; and
a law requiring the registration and filing of information by any organi-
zation engaged in activities designed to interfere with the operation of
30
the public schools by the State of Texas.
29
Chapter 283 of the 1957 Texas Legislature, Vernon's Annotated
Civil Statutes of Texas, Art. 2900(a).
*A few school districts in Texas had already been integrated. In
those districts, the local option election could abolish the integrated
system and return to the dual school system.
30See, 3 RRLR 87-91.
-139-
Based on the passage of these laws, the Dallas school officials
petitioned the Court of Appeals for a rehearing. The case was heard,
for the third time, by Judges Rives, Jones, and Brown, and their decision
31
was announced in a per curiam opinion on August 27, 1957. Despite the
Board's argument that the Dallas School District would lose six million
dollars a year of state aid and individuals who carried out the order
would be penalized, the Court denied the petition for rehearing. Texas
law would not be permitted to interfere with federally guaranteed rights.
Referring to the local option election law, the Court said:
That Act, of course, cannot operate to relieve the
members of this Court of their sworn duty to sup-
port the Constitution of the United States, the
same duty which rests upon the members of the several
state legislatures and all executive and judicial
officers of the several states. We cannot assume
that that solemn sworn duty will be breached by any
officer, state or federal. If, however, it should
be, then the Board of Trustees of the School District
and the persons carrying out the order to be issued
by the district court are not without their legal
remedies. 32
The Board could not, therefore, take refuge in a statute the Court of
Appeals at least intimated was of questionable validity.
Now, the Rippy case was returned to Judge Atwell's court, and on
September 5, 1957, he reluctantly followed the judgment of the Court of
33
Appeals. The result of his order, he commented, would unsettle the
31Borders v. Rippy, 2 RRLR 984 (5th Cir. 1957). This decision was
not published in the official reports.
32Ibid., p. 985.
33Borders v. Rippy, 2 RRLR 985 (N.D. Tex. 1957). The order of the
district court was not published in the official reports.
-140-
tranquility of the Dallas schools "which has existed in a proud form for
many years under which both the colored and white pupils have had equal
school facilities and splendid teachers . . . ," but he was forced to
obey the higher court. Now, after two years of delay in which neither
a plan nor any start had been made toward desegregation, Judge Atwell
asked the attorneys for both parties to prepare an order for his approval
which would include a detailed plan for complete integration, to commence
35
in four months time. The Court of Appeals had asked for desegrega-
tion with all deliberate speed, and now Judge Atwell was going to give
it to them.
This time the defendant School Board appealed the district court
decision. After two and one-half years of legal sparring, a federal
court, reluctant though the judge may have been, had ordered them to
integrate the Dallas schools by a specific date uncomfortably near in
the future. This fourth appeal was heard in the Court of Appeals as
Rippy v. Borders, again before Circuit Judges Rives, Jones, and Brown.
Judge Rives once more wrote the opinion which was handed down on Decem-
ber 27, 1957.*
According to Rives, Judge Atwell had again misconstrued the mandate
of the Court of Appeals. Judge Rives noted that Atwell 's order had been
entered with no further hearing. No new testimony was heard and Atwell
34Ibid., p. 986.
35Ibid.
36250 F.2d 690, 3 RRLR 17 (5th Cir. 1957).
*In this rare example of federal judicial speed, the Court of
Appeals had reviewed the Rippy case three times and the District Court
once within a six month period.
-141-
decided the case solely on the record to date. The attorneys for both
sides were asked to do no more than draft suggested orders. In this,
and in the substance of his injunction, Atwell had again erred. Atwell's
order was excessive, restraining and enjoining the defendants from
"requiring or permitting segregation of the races." This was a mis-
reading of the law and the Court of Appeals directions, for only the
requirement of segregation was forbidden. As had been stated earlier,
only racially discriminatory segregation was unconstitutional. Atwell
had therefore gone well beyond what the Court had required when he re-
strained the School Board from permitting segregation. Thus, Atwell's
37
injunction was too broad.
The plaintiffs had asked for no more than desegregation with all
deliberate speed, and the Court of Appeals mandate had fixed no specific
date. Further, those with the primary authority and responsibility for
desegregating the schools were the school authorities. Only if they
failed in that responsibility to the satisfaction of the plaintiffs,
should the district court make a determination and order further steps.
According to Rives, the district court must "exercise its own judgment
38
and discretion." Clearly, he argued, Judge Atwell had not done this,
for he had only reproduced an erroneous version of the Appeals Court
rul ing.
Therefore, the Court of Appeals reversed Atwell's decision and
ordered him to retain jurisdiction for any further proceedings that were
necessary:
37
Rippy v. Borders, 3 RRLR 19-20.
38Ibid., p. 20.
-142-
The school authorities should be accorded a reason-
able further opportunity promptly to meet their
primary responsibility ... and then if the plain-
tiffs, or others similarly situated, should claim
that the school authorities have failed in any
respect to perform their duty, there should be a
full and fair hearing. . . .39
The problem was therefore back in the hands of the School Board,
which now had to proceed with planning for desegregation. The Court of
Appeals had avoided what it had viewed as a precipitous desegregation
in Dallas, and for the first time one of its decisions received favor-
able local comment. Further action was taken on April 16, 1958, when
the district court entered an order enjoining the defendants from
segregating the schools "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. . . ."
The school authorities of Dallas had not, however, resolved their
difficulties with regard to Texas law. In both the federal and state
courts, in separate but related suits against the Texas State Commis-
sioner of Education, the Dallas School District sought to clarify its
legal standing under the previously mentioned local option election
statute and the desegregation order of the federal district court. The
school authorities apparently could not obey the federal or state
39
Ibid., p. 21.
40
New York Times, December 28, 1957, p. 5, col. 2. Local citizens
said the reversal of Atwell's ruling would provide a breathing spell and
prevent Dallas from becoming another Little Rock. The NAACP was not
pleased with the decision.
41
See, Boson v. Rippy, 275 F.2d 850, 5 RRLR 392, 393 (5th Cir.
1960).
-143-
requirements without violating the other. They sought a declaratory
judgment to resolve this dilemma. In both the federal and state suits,
the School Board was unsuccessful as trial court dismissals were affirmed
on appeal .
In reaction to the failure of the above effort in the federal court,
and. prior to the filing of its suit in the state courts, the Board issued
43
another statement of policy. It announced that it was filing suit in
the state courts to hopefully achieve judicial unanimity.* Until that
suit was determined, there would be no change in the status of the Dallas
public schools. Thus, the Superintendent was instructed to continue
segregation in the schools for the 1958-1959 year.
Throughout the prosecution of the Rippy case, the plaintiffs had
displayed continued patience. The constant delays, however, finally
forced a request for immediate action. Thirteen months after the last
district court order had been entered, they filed a "Motion for Further
Relief" on May 20, 1959. In it they asked for an order directing the
42
In the federal suit, Circuit Judges Tuttle, Brown, and Wisdom
upheld the dismissal of the suit because there was no justiciable con-
troversy nor was there any federal statute giving the district court
jurisdiction over the suit. Dallas Independent School District v. Edgar,
255 F.2d 421, 3 RRLR 656 (5th Cir. 1958). The state court suit met with
a similar fate because the plaintiffs had not attacked the constitution-
ality of the statutes involved, and since the suit was in reality against
the state, it could not be maintained without the legislature's consent.
Dallas Independent School District v. Edgar, 328 S.W. 2d 201, 4 RRLR 878
(Ct. Civ. App. Tex. 1959).
43
See, Statement on Desegregation, 3 RRLR 788 (1958).
♦Filing and prosecuting the state action provided the school
authorities with a further justification for delaying production of a
desegregation plan.
-144-
Board to comply with the earlier judgments and the April 16, 1958, Dis-
trict Court order by:
Immediately operating all schools under their
supervision in the Dallas Independent School Dis-
trict on a nonracial and nondiscriminatory basis;
and that defendants be further directed to now
permit plaintiffs and all Negro minors similarly
situated to enter, matriculate and study in schools
under their supervision without regard to race or
color.44
The Board responded on July 27, that "each day of delay in integrating
45
Dallas schools lessened the danger of violence."
The hearing on the "Motion for Further Relief" was held on July 30,
1959. Attorneys for the school children argued that the Board was
admittedly still operating segregated schools in defiance of federal
court degrees. Therefore, there was no substantial controversy at issue.
However, to allay the fears of the defendants, plaintiffs would be willing
to accept the beginning of the 1960 school year as a reasonable date to
begin integration. The defense attorney disagreed saying that the
plaintiffs were in too great a hurry and that the Board was doing its
best to comply with all the law.
At the conclusion of the argument, Federal District Judge T.
Whitfield Davidson, who at the age of 81 had replaced Judge Atwell the
year before, delivered a lengthy oral opinion preliminary to entrance of
his decision. He concluded by warning that integration was surely coming,
44
See, Boson v. Rippy, 275 F.2d 850, 5 RRLR 392, 393 (5th Cir.
1960).
45
New York Times, July 28, 1959, p. 14, col. 4.
46
See, Boson v. Rippy, 5 RRLR 393-94.
-145-
but he for one, could not say when. He refused to set any date, except
that it "would not be now":
... an appropriate order will be that the School
Board be instructed to further study this question,
and that some definite action be taken, perhaps
towards holding this election or doing other things,
sometime next spring, but we cannot say definitely
whether or not it will take place at any particular
time, day, month or year, we don't know, because we
don't know what tomorrow may bring forth. ^
The plaintiffs then asked the district court to make a final ruling on
their motion.
48
Judge Davidson entered his order and decision on August 4, 1959.
In that order, the Judge made several findings of fact including the
following: 1) The School Board was proceeding toward good faith com-
pliance with the rulings of the Supreme Court, the Court of Appeals, and
the District Court; 2) the School Board was diligently studying methods
and plans used elsewhere to avoid strife and violence; 3) the School
Board was rightfully pursuing remedies in the state courts of Texas, and
such remedies had not been exhausted; 4) it was physically impossible
and impracticable to begin integration either in September of 1959 or
1960; 5) that further time should elapse before the Court set any date;
6) that plaintiffs had agreed integration should not be put into effect
immediately; but 7) that initial steps should be taken to prepare for a
47
Ibid. , p. 394. This oral opinion included a remark that whites
had a right to maintain their racial integrity. New York Times, July 31,
1959, p. 24, col. 5.
8Borders v. Rippy, 4 RRLR 877 (N.D. Tex. 1959). As was true of
much of the litigation in the Rippy case, this decision was not pub-
lished in the official reports.
-146-
49
local option election. Davidson then denied the plaintiffs' motion,
retained jurisdiction over the case, and recessed the hearing until the
50
first Monday in April of 1960. The plaintiffs immediately filed notice
of appeal "... from the decree and final judgment . . . denying
51
Plaintiffs' motion for further relief . . . ," and for a fifth time,
their attorney went before the Court of Appeals.
The appeal from Judge Davidson's decree was heard in the Court of
52
Appeals as Boson v. Rippy, before Circuit Judges Rives, Cameron, and
Wisdom. The per curiam opinion, overruling Davidson and requiring the
submission of a desegregation plan, was announced on March 11, 1960, and
a petition for rehearing was denied on April 8, 1960.
The brief opinion of the Court dealt with the two contentions raised
by the School Board and a perceived shortcoming in Judge Davidson's
decision. In answer to the contention that the district court order was
not a final judgment and therefore not subject to appellate review, the
Court held that Judge Davidson's order was in effect a refusal to modify
an injunction, a judgment appealable under 28 U.S.C.A. Sec. 1292(a)(1).
Secondly, in response to the defendant's contention that the Court
of Appeals was limited in its scope of action to the precise language of
the notice of appeal,* the Court held that the notice merely described
49Ibid., p. 877-78.
50Ibid., p. 878.
51
See, Boson v. Rippy, 5 RRLR 394.
52275 F.2d 850, 5 RRLR 392 (5th Cir. 1960).
53Ibid., p. 394.
*The precise language of the notice of appeal, which is intended to
inform the opposing party as to the portion of a decision which is con-
tested, read as follows: ". . . from the decree and final judgment
-147-
the judgment from which appeal was taken, was not intended to limit the
54
scope of the appeal, and did not have that effect.
Finally, with regard to the substantive matters involved, the Court
held that Judge Davidson should have required the Board to make a reason-
able start toward compliance by requiring it to submit a desegregation
plan for consideration at the April, 1960, hearing. The Court therefore
ruled that the Board had to submit a desegregation plan within thirty
days from the date of final judgment of the Court of Appeals. The dis-
trict court was directed to hold a full hearing on that plan and any
55
objections to it within thirty days of the submission of the plan. At
last a schedule for at least a first step in the integration of the Dallas
public schools had been set.
To no one's surprise, Judge Cameron dissented from both the result
and the reasoning of the per curiam opinion, because he thought the Court
exceeded its legitimate authority and interfered with appropriate local
action. First, Cameron maintained, the Court of Appeals had no juris-
diction to hear the appeal. The statute cited by the majority as the
basis for the Court's jurisdiction, according to Judge Cameron, did not
cover the present case. The plaintiffs at trial, he said, had abandoned
their demand for immediate desegregation, therefore the appeal related
entered in this action of the 4th day of August, 1959, denying Plain-
tiffs' motion for further relief praying for a judgment and decree of
the Court directing and requiring the Defendants to immediately de-
segregate the schools in the Dallas Independent School District."
Ibid.
54Tk..
Ibid.
55Ibid., pp. 394-95.
-148-
56
only to "a matter of timing." Certainly, a party might not take an
appeal from the district court's setting of its own docket, and that was
what was here involved since the abandonment of the demand for immediate
desegregation left only that portion of the Davidson order which recessed
the suit until April of 1960. Any disagreement with the April date was
a questionable basis for review even if the matter had been raised at
the hearing, which it was not, and even if appropriate motions had been
made or notice given, both of which were omitted, appeals from inter-
locutory rather than final orders were to be allowed only when jurisdic-
tion was absolutely clear. Thus, the plaintiffs were not appealing from
a refusal to modify an injunction, and the Court had no jurisdiction to
hear the case.
Judge Cameron also felt that the majority had interfered with the
role of local school boards and the district courts by modifying Judge
Davidson's order by requiring the submission of a desegregation plan on
a specific date. In the Brown implementing decision, Cameron pointed
out, the Supreme Court had placed primary responsibility for desegrega-
tion on the local authorities and the district courts. The Supreme Court
had relied on the discretion of those closest to the scene and most
familiar with the- special problems of each school system. This discretion
had been properly exercised by Judge Davidson, and it was not within the
powers of the Court of Appeals to set aside that discretion in the
absence of clear error.
56Ibid., p. 395.
57Ibid., p. 396.
58Ibid., pp. 396-97.
-149-
Finally, Judge Cameron argued that the majority had given no con-
sideration to the impact of the Texas statutes requiring a local option
election to abolish the segregated school system and providing for the
assignment and transfer of pupils. The statutes had only been indirectly
involved in the litigation, and there had been no ruling on their con-
stitutionality by either the state or federal courts. If the statutes
were valid, Cameron said, they were binding, and the Court of Appeals
could not proceed as if they did not exist. If the direction of the
Court of Appeals was followed, the defendants would be forced to violate
valid Texas law. Therefore, no action should be taken until the status
of the Texas laws was determined. Judge Cameron contended that just such
a procedure could have been initiated by the plaintiffs at the April
hearing Judge Davidson had scheduled and which the Court of Appeals had
canceled. Thus, since the constitutionality of the statutes had never
been challenged, the Court of Appeals should stay its hand until such a
59
challenge was resolved.
As in his prior dissent, Judge Cameron's basic position was that
the federal appellate courts were operating beyond both their legitimate
jurisdiction and the requirement of local authority and responsibility
established by the Supreme Court in the desegregation decisions. To
achieve what the majority wanted in the area of social reform, Cameron
felt the Court of Appeals was ignoring well-established legal principles.
He, for one, would continue to conform to proper procedures in handling
school desegregation suits.
59Ibid., pp. 398-99.
-150-
The Rippy case was then returned for the fifth time to Judge David-
son's court for action according to the mandate of the Court of Appeals,
and was heard under the title, Borders v. Ripp.y.60 Because of the size
and complexity of the Dallas school system, the Board maintained that the
administrative plans for the school year beginning in September, 1960, had
already been made, therefore its plan was designed to go into effect in
September of 1961. Desegregation would proceed on a grade per year
basis with arrangements for slow adaptation to the change provided for
teachers, students, and parents. Specifically, it included the following
provisions: 1) Prior to the implementation of the plan, a local option
election, as required by Texas law, would be held, and if the vote was
negative, the plan's implementation would be delayed until such an elec-
tion produced an affirmative result; 2) desegregation would proceed on a
grade by grade basis beginning with the first grade and would be com-
pleted after twelve years; 3) non-racial school zoning would be estab-
lished for each grade as it was desegregated; 4) application for transfer
would be granted for good cause, which included a) when a white child
would otherwise attend a previously all black school, b) when a black
child would otherwise attend a previously all white school, and c) when
any student would otherwise attend a school where the majority of the
students in the school or grade were of a different race; 5) prior to
the beginning of desegregation, teachers of both races would attend study
groups and work shops to aid in their adjustment; and 6) parents would be
asked to participate in orientation meetings and seminars to prepare for
60184 F.Supp. 402, 5 RRLR 679 (N.D. Tex. 1960).
Borders v. Rippy, 5 RRLR 680.
-151-
desegregation. The plan also included a detailed calendar setting forth
CO
the dates for the teacher and parent meetings.
The plaintiffs had opposed the Board plan as being too slow and too
long delayed, but Judge Davidson characterized the plaintiffs' position
as "a demand for unconditional surrender of the Board's position and
calls for total and complete integration only." The Brown decision,
he maintained, did not require such a result. The only proper way to
have integration was by consent, not force. After all, he argued, govern-
ment by the consent of the governed was the basis for the American
political system. Judge Davidson, therefore, rejected the School Board's
plan since it would force integration (and by the way lead to amalgama-
tion of the races), and continued the case to give the Board time to come
up with another plan. Davidson suggested as an acceptable alternative a
plan providing for white schools, black schools, and integrated schools
to which students would be assigned based on free choice. Thus, he
argued, those who wanted integration could have it immediately rather
64
than having to wait.
62Ibid., pp. 681-684.
63Ibid., p. 685.
64
Ibid. , p. 696. If the above had been the entirety of Judge
Davidson's opinion, his rather novel interpretation of the requirements
for a non-segregated school system would make the decision most inter-
esting. In fact, the bulk of his lengthy decision dealt not with the
Rippy case, but with historic social, political, religious, and economic
aspects of segregation. Davidson's opinion is one of the most remarkable
judicial statements produced during the entire school desegregation
struggle. He argued that integration was bad for society and that
slavery had in some ways benefited the Negro. Segregation was no barrier
to individual success, but merely reflected the South's attachment to the
traditional values of local self-government and racial integrity. The
following examples from that peroration give the flavor of his view.
Questioning the necessity for speedy integration, Davidson argued
that history had shown that integration had been unsuccessful by citing
-152-
The School Board thereupon submitted an amended plan for Judge
Davidson's approval. Although still preferring its original plan, the
the contrast between the "high standards" of the French-speaking Canadians
of Quebec (where separation had been maintained) and the depressed con-
ditions in the integrated societies of Haiti and Puerto Rico. Integra-
tion had retarded the development of every land where it had existed.
Davidson then launched upon a review of the history of the black man in
the South, which he argued was the background for the current difficul-
ties.
Slavery was indeed a blight upon our past, Davidson said, and in
particular the horror of the slave ship. Thus, referring to the newly
landed slave, Davidson said "to be freed from his recent captors and from
the foul condition of the ship was for a moment a relief no doubt to this
poor fellow when he was inducted into the wide open space of a Southern
plantation with open air, food and kindness." Slavery was beneficial for
the imported African, Davidson said, for he was taught the English
language, converted to the blessings of Christianity, and tended by the
merciful mistress of the plantation as a physician. As a result, the
Negro slaves were a good and loyal people as proved by the way they ran
the plantations under the supervision of the heroic mistress during the
Civil War. Davidson demonstrated this by reference to the "many, many"
slaves his grandfather had owned.
Unhappily, the Negro was corrupted after the war by his new master,
the carpetbagger, the Judge said. But fortunately, the corruption was
only temporary, as the old relationships in the South were renewed.
Then, according to Davidson, the Negro learned the key to his future
from Booker T. Washington, and that key was excellence. By excelling,
negroes could avail themselves of the "equal opportunities" available
to them. One only had to look at the successes of individual Negroes to
see that this was true, thus proving that the sixty year old system of
segregation had been no handicap to the Negro.
Southern people today resisted integration, according to Davidson,
because they feared that the tragic era of Reconstruction would again
occur. The abuses of Reconstruction were ended, he said, only when home
rule, "that boon of local self-government," was restored. Only a people
governed by consent, according to its social order, usage, and tradition,
were a contented, law abiding people.
Segregation of the races, like the Chinese Exclusion Act, Davidson
maintained, did not represent hatred for the excluded or segregated but
rather a concern for local self-government and the right to determine
one's own affairs. Indeed the great gift of Western Civilization from
the Romans through the repeal of Prohibition by individual states was
the right of local self-government. Clearly, "the crowning item of the
Constitution is Article 10 of the Bill of Rights."
Along with local self-government, another gift of civilization and
"a God-given right" was racial integrity, according to Judge Davidson.
The very base upon which Christianity was built, he said, was the
Hebrew's successful defense of their racial integrity. The Southern
Negro recognized this fact and approved of it. The relationship between
the races was a healthy one, for the Negro looked upon his influential
-153-
Board provided for the three school approach he had recommended . The
plaintiffs vigorously contested the amended plan.
Judge Davidson issued a "Supplemental Opinion" on June 4, 1960. He
noted that the courts under the Brown decision were limited to the
mandate calling for integration and would not interfere with the actual
management of the schools. The School Board was in charge of operating
the schools, and if that operation was conducted according to the amended
plan for desegregation,* the Board would be in compliance with the
Supreme Court's mandate. He therefore approved the amended plan sub-
mitted by the Board.
At last, the Dallas schools had a desegregation plan that had been
approved by a federal court. Whether or not this approved plan was
going to be put into operation was problematical, for both the plain-
tiff school children and the School Board, for the sixth time appealed
white friend as a "counselor, an advisor or if need be a cham-
pion."
All of this, Davidson argued, showed that local self-government
and racial integrity were expressed in the notion of government by
the consent of the governed. This was what all people really wanted.
Unfortunately, such an arrangement had been partially denied by the
Supreme Court in its desegregation decisions. However, that Court had
allowed substantial discretion for local authorities to work out their
problems. Since he was determined to prevent amalgamation of the
races, which of course led to degeneration, Davidson would require
the School Board to come up with an alternative to its plan requiring
total and complete integration. Thus ended Judge Davidson's virtuoso
performance. Ibid. , p. 685-695.
65Ibid., p. 699.
*Judge Davidson required a further alteration in the plan so that
the requirement of holding the local option election should not be a
condition of the desegregation plan.
66Ibid., pp. 697-99.
-154-
the District Court decision to the Court of Appeals for the Fifth Cir-
cuit.* In the interim, before the Court of Appeals ruled on the appeal,
a local option election was held on August 4, 1960. At least the white
citizens, for black voting was reportedly light, expressed their opinion
clearly. The vote was 7,416 for integration and 30,324 against it.67
Until the Court of Appeals ruled, the School Board had apparently dis-
charged its duty.
The Rippy case was heard on appeal as Boson v. Rippy68 before Chief
Judge Rives and Circuit Judges Tuttle and Jones. Judge Rives wrote the
opinion reversing Davidson and reinstating an amended version of the
Board's original plan, and it was announced on November 30, 1960. At
the outset, the Court disposed of the issue of the impact of the Texas
local option election law. The issue was simple, for according to Judge
Rives, "It goes without saying that recognition and enforcement of con-
stitutional rights cannot be made contingent upon the result of an
69
election." With regard to the desegregation plan, the Court dis-
appointed both the plaintiffs and the Board.
The Court had no doubt that Davidson's approval of the three school
plan had to be reversed. It showed a total misconception of the plain-
tiffs' constitutional rights. Equal protection meant that plaintiffs
were to be treated as individuals without regard to race or color.70
♦Specifically, the plaintiffs appealed from Davidson's approval of
the amended Plan No. 2, and the defendants took an appeal from the dis-
approval of amended Plan No. 1.
New York Times, August 7, 1960, p. 84, col. 2.
68285 F.2d 43, 5 RRLR 1048 (5th Cir. 1960).
69
Boson v. Rippy, 5 RRLR 1049.
70Ibid., p. 1050.
-155-
Rives said that the true meaning of the Constitution was best expressed
by Mr. Justice Harlan in his classic dissent in Plessy v. Ferguson, 163
U.S. 537 (1895):
There is no caste here. Our Constitution is color-
blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens
are equal before the law. The humblest is the peer
of the most powerful. The law regards man as man,
and takes no account of his surroundings or of his
color when his civil rights as guaranteed by the
supreme law of the land are involved. 71
Rather than removing a forbidden classification, Judge Davidson had
approved a plan adding another such classification. State support of
72
any schools requiring racial segregation was unconstitutional.
Regarding the first plan submitted by the Board, Rives held that
with the elimination of that part of the plan allowing transfers on the
basis of race, it would be approved. This approval did not extend to
the Board's proposed twelve-year schedule Rives warned, for it might not
be necessary to have that much delay. Judge Rives granted that the
plaintiffs might be frustrated that no more definite judgment was ren-
dered, but he said he was reluctant to substitute the Court of Appeals'
judgment for that of the district court. Only to the extent necessary
to ensure a full start to compliance with the required termination of
segregation would such substitution take place. Finally, given the past
history of the case, Rives reminded the district court that the burden
73
was on the School Board to establish justification for any further delay.
71, k-j
Ibid.
72Ibid.
73Ibid., pp. 1050-51.
-156-
On December 7, 1960, Rives entered a supplemental opinion to more
strongly emphasize that the portion of the desegregation plan providing
for transfer for racial reasons was impermissible. It was felt necessary
to do this because the Sixth Circuit Court of Appeals had held that
similar provisions were not unconstitutional in a Nasville school case.
Rives and his brother judges disagreed, saying that:
. . .with deference to the views of the Sixth
Circuit, it seems to us that classification accord-
ing to race for purposes of transfer is hardly less
unconstitutional than such classification for pur-
poses of original assignment to a public school.'5
The provisions of the eliminated transfer section were also objec-
tionable, according to Rives, because it applied a different rule of law
for the Dallas School District than that applied to the rest of the
schools of the state under Texas law.
The above was the last hearing in the Court of Appeals in the Rippy
case. That Court had finally indicated its approval of a desegregation
plan for the Dallas schools beginning in September, 1961. All that
remained was the reinstatement of the approved plan, with the offending
transfer provision eliminated, by the district court. On June 27, 1961,
Judge Davidson complied with the Court of Appeals direction and approved
the grade-a-year plan in the sixth decision in the case in the District
Court. Davidson also ordered the Board to administer transfers so as
Ibid. , citing Kelly v. Board of Education of Nashville, 270 F.2d
209 (6th Cir. 1959).
75Boson v. Rippy, 5 RRLR 1049, 1052.
76Ibid., pp. 1052-53.
-157-
not to discriminate between the races, and he retained jurisdiction in
case any further decrees were necessary.
Not surprisingly, in his opinion, Davidson berated the Court of
Appeals for overriding the desires of the people of Dallas, destroying
the Tenth Amendment of the Constitution, and crushing the right to local
self-government. He had, Davidson said, been forced to ignore his own
conscience and his notions of fair play. Though he vigorously dissented
from what he was forced to do, Davidson did urge the people of Dallas to
7ft
stay calm and stand by constituted authority.
With Judge Davidson's parting salvo, the Rippy case was finished
with its almost six year journey through the federal judicial system.
The desegregation of the Dallas schools could now begin, only seven and
one-half years after the Supreme Court had determined that black school
children were denied their constitutional rights by segregation in the
public schools. The degree to which segregation would end in Dallas
would now depend on the situation outside of the courtroom.
In the event, desegregation in Dallas was generally peaceful. For
a year before the final decision, civic leaders had been preparing the
community for integration. The slogan for Dallas was going to be law
and order, for most citizens wanted to avoid the tension and violence
79
symbolized by Little Rock. When the schools opened on September 6,
1961, integration began without incident as Dallas appeared to be ready
7Borders v. Rippy, 195 F.Supp. 732, 6 RRLR 746,747 (N.D. Tex.
1961).
78Ibid., pp. 747-49.
79
New York Times, September 3, 1961, p. 45, col. 4.
-158-
to accept the change. However, integration was token at best, for in a
school system of well above 100,000 students, only ten black girls and
on
eight black boys attended integrated first grade classes. For most of
the white citizens of Dallas, the momentous change was rather easy to
accept. Subsequent meaningful and complete integration took several
years to occur, and required a reorientation of the policy of the Fifth
Circuit and an alteration of public opinion.
In the Rippy case, the Court of Appeals had a difficult role to
fulfill. If the results of the local option election on desegregation
were an accurate reflection of the sentiment of the majority of the people
of Dallas, the Court was dealing with a community overwhelmingly opposed
to what the Court was bound by law to accomplish. The defendant School
Board of Trustees of the Dallas Independent School District was at the
least not very cooperative. It sought to delay the impact of the Brown
decision by every legal means available. It is possible to argue, of
course, that their reluctance to act was at least in part due to the
conflicting demands of the Court of Appeals and the legislature of Texas.
Certainly, the State of Texas had made its opposition to desegregation
clear in the statutes passed by the legislature. However, the main
obstacle to the Court's enforcement of Brown was the lower federal court
whose primary responsibility it was to see that compliance with the
Supreme Court's mandate was accomplished.
Given the nature of the task, even a unified federal judiciary would
have had a difficult time. Unfortunately for the Court of Appeals,
district judges William H. Atwell and T. Whitfield Davidson effectively
Ibid., September 6, 1961, p. 23, col,
-1 59-
delayed implementation of desegregation for almost six years. These two
men gave support and encouragement, through their decisions and opinions,
to those in Dallas who either wanted to avoid integration, delay it as
long as possible, or limit its impact. Thus, the Court of Appeals was
required to drag the district court along, kicking and screaming all the
way, into obedience to the supreme law of the land. Here there was no
gentle education of the lower court, as had been true in the Gibson
case.
The Court of Appeals also had a substantial impact on desegregating
the Dallas schools. It will be recalled that in Miami, desegregation
was begun independently of the federal litigation. In the Rippy case,
only the decisions of the Court of Appeals forced the Dallas school
authorities to begin the task. It is true that the Court proceeded
hesitantly at times, for example when it reversed Judge Atwell's petulant
order for immediate desegregation. It might also be argued that the
Court of Appeals was too cautious in not calling for immediate and com-
plete desegregation at the termination of the long process of litigation.
However, one must consider the context of the times in the Court's in-
sistence on the primary responsibility and authority of local school
officials and the district court. The judges of the Court of Appeals
felt they could do no more than force the above to obey the law and
perform their responsibilities.
Perhaps the delay involved in the extended litigation served a
useful purpose, even though the postponement of the enforcement of the
constitutional rights of the black school children was difficult to
Ol
Rippy v. Borders, 250 F.2d 690, 3 RRLR 17 (5th Cir. 1957).
-160-
justify. When integration finally began, even though it was initially
little more than token, there was no violence and it proceeded smoothly.
Though it seems clear that the process could have begun several years
earlier with the full and complete cooperation of the Dallas School
Board, at least the protracted legal struggle provided a period in which
the citizenry were prepared to accept desegregation. It would be rather
difficult, however, for one to attempt to balance the arguments for and
against delay.
In the final event, the suit brought in Borders v. Ri ppy finally
was successful. The Dallas schools did begin to end segregation. That
such a limited result would be legally insufficient in the Fifth Circuit
in five years time does not detract from the accomplishment. The Court
of Appeals for the Fifth Circuit met its responsibility. In the face of
local and state opposition, it was able to correct the excesses of two
recalcitrant district judges and to force the District Court for the
Northern District of Texas to apply and enforce federal law and the
people of Dallas to carry it out. In the next and final case to be
examined, the Court was faced with a very different problem. In New
Orleans, the Court of Appeals would be called upon to support and affirm
a district court against a state and community in judicial and legisla-
tive revolt against the supreme law of the land of the United States.
CHAPTER VI
THE CASES (3): THE FACTUAL SETTING,
BUSH v. ORLEANS PARISH SCHOOL BOARD
In the Dallas desegregation controversy, the judicial conflict was
essentially between the Court of Appeals and the District Court. In
the New Orleans case, the protagonists were the District Court for the
Eastern District of Louisiana and the Court of Appeals for the Fifth
Circuit on one side and a good part of the governmental machinery of the
state of Louisiana on the other. What distinguished this contest from
most others in the Deep South was its intensity, and the disorder it
engendered.
Between 1954 and 1961, the Governors and the Legislature of Louisiana
employed every conceivable means short of armed insurrection to prevent
the New Orleans School Board from complying with federal court desegre-
gation orders. The city of New Orleans and its civic leaders exercised
little influence over events due to their own quiescence and the activity
of the State government. The School Board was rarely cooperative, but
a good deal of its hesitance was a result of being caught between the
mutually exclusive demands made upon it by the state and the federal
courts. Throughout the history of the litigation, these federal courts
were the only supporters of the rights of black school children in
Orleans Parish.
-161-
-162-
The legal issues involved in Bush v. Orleans Parish School Board*
were not terribly complex, requiring either detailed analysis or ex-
planation. The School Board did not really contest the black childrens'
right to attend school on a non-discriminatory basis. Rather, the dis-
agreement concerned timing and procedure. Instead, the almost continual
parade through the doors of the federal courthouse was produced by the
persistence both sides displayed and the ingenuity of Louisiana segre-
gationists. The plaintiffs refused to give up in the face of inter-
minable delay, and laws to prevent integration without specifically
mentioning race were repeatedly adopted. Neither side would surrender
its basic position. These attributes once more called into question the
supremacy of federal over state law. It would be difficult to imagine
an issue of greater importance, for our system of government depends
upon that supremacy, and its reaffirmation was one of the important
results of the suit.
The Bush case also demonstrated the tragic delay that often accom-
panied attempts to provide workable remedies confirming rights guaranteed
by the Constitution. From the genesis of the conflict to its conclu-
sion, over twelve years of federal court action elapsed. The individual
black school children who were the plaintiffs in this case never attended
*It would be impossible to provide a full citation for Bush v.
Orleans Parish School Board. There were slightly over forty different
hearings held in its course, five of which were in the Court of Appeals
and six in the Supreme Court. Further, in 1960, it was consolidated with
companion cases Williams v. Davis and U.S. v. Louisiana. Additionally,
two related cases, State v. Orleans Parish School Board and Singlemann
v. Davis, were heard in the Louisiana courts. Therefore, individual
citations will be provided where they are appropriate. The name Bush
v. Orleans Parish School Board (referred to subsequently also as the
Bush or Orleans Parish case) will be used as the generic term to desig-
nate the entire legal contest.
-163-
school in an integrated classroom in Orelans Parish, Louisiana. As
seemed so often true in desegregation suits filed in the 1950's, those
who bore the legal burden of making the Brown decisions effective in
the real world did not reap the benefits of their eventual success.*
In the course of the Orleans Parish case, all seven judges of the
Court of Appeals for the Fifth Circuit included within this study took
part in its decision. Additionally, Circuit Judge Wayne T. Borah, who
retired shortly thereafter, participated in the three-judge district
court hearing which initiated the federal court decision-making process.
In the District Court for the Eastern District of Louisiana, Bush was
heard before Judges J. Skelley Wright, who served through mid-1962,
Herbert Christenberry, who participated in all of the three-judge dis-
trict court decisions, and Frank Ellis, who replaced Wright in 1962 after
Wright had been named to the Court of Appeals for the District of
Columbia. With only one exception, all were in basic agreement on the
proper course to be followed.
The desegregation of the New Orleans schools proceeded by clearly
discernible steps. The first stage, consisting of the rather extended
development of events, lasted from approximately 1952 through the early
months of 1960. The period of real crisis, with move and countermove
occurring on an almost daily basis, lasted from around May, 1960, until
May of 1961. The final stage, from June of 1961 into late 1964, brought
the cooling-off of conflict and slow resolution of outstanding issues.
*While the Bush case extended well beyond 1960, most of the
important decisions and developments occurred before 1961. Later
developments and decisions which were important will be here included
to provide a completed view of the case.
-164-
This changing pace of developments will serve as the outline for sub-
sequent discussion of Bush v. Orleans Parish School Board.
Delay: 1952-1960
If one were to have chosen a major city in the Deep South that might
experience relatively peaceful desegregation, New Orleans would have been
an excellent candidate. Given the obvious limitations of the relation-
ship, blacks and whites had lived in harmony in New Orleans for decades
prior to the 1950's. For example, New Orleans had less residential
segregation than any other large city in the North or South.
In November of 1951, a group of black school children, through their
parents, petitioned the Orleans Parish School Board to end its practice
of racially segregating the public schools and to admit them and other
black students to schools on a nondiscriminatory basis. The request was
denied, and in February of the next year, they appealed the local de-
cision to the State Board of Education. In August of 1952, the State
Board replied that most of their request was totally within the purview
o
of the local School Board and refused to overturn the latter's decision.
With the legal and financial support of the Louisiana NAACP, the
black children then filed a complaint in the federal district court on
3
September 5, 1952. The action thus commenced, under the title of Bush
Morton Inger, Politics and Reality in an American City: The New
Orleans School Crisis (New York: Center for Urban Education, 1969),
p. 9.
2
See, Orleans Parish School Board v. Bush, 242 F.2d 156,158 (5th
Cir. 1957).
3
Inger, Politics and Reality, p. 17.
-165-
v. Orleans Parish School Board, sought relief both from the disparate
conditions in the white and black schools of New Orleans and from dis-
crimination based simply on the fact of racial segregation. The suit
sought a declaratory judgment that segregated schools, and Art. XII,
Sec. 1 of the Louisiana Constitution which mandated them, were unconsti-
tutional as being a denial of the equal protection of the laws guaranteed
under the Fourteenth Amendment to the United States Constitution. Both
parties agreed to suspend all action on the complaint until the U.S.
5
Supreme Court handed down its decision in Brown v. Board of Education.
They agreed that prior action in the case would be premature.
After the first opinion in the Brown case, the Louisiana Legislature
embarked upon a program of legislation designed to circumvent the Supreme
Court's ruling. During its 1954 session, the Legislature amended Art.
XII, Sec. 1 of the state Constitution to provide for racially segregated
schools not because of race, but "in the exercise of the state police
power to promote and protect public health, morals, better education and
the peace and good order in the State. ..." The Louisiana Legislature
also passed statutes which restated the requirement of segregated
schools, provided penalties for school boards and individuals who failed
to meet the law's requirements, and gave total discretion for pupil
assignment to the parish superintendent of schools, so long as he main-
tained segregation.
See, Orleans Parish v. Bush, 242 F.2d 158.
5
Inger, Politics and Reality, p. 17.
Art. XII, Sec. 1 of the Louisiana Constitution, as amended by Act
752 of 1954.
7Acts 555 and 556 of 1954.
-166-
After the enactment of these laws, the plaintiff school children
again petitioned the School Board to discontinue segregation. No reply
to this was received, and earlier hope that New Orleans would volun-
Q
tarily abide by the Brown decision disappeared. The plaintiffs filed
an amended complaint to include in the action the new Louisiana pro-
visions; the School Board filed a motion to dismiss the case; and the
state of Louisiana sought to intervene to file a motion to dismiss the
9
suit as being one against the State. Thus, the stage was set for a
federal court decision.
The suit was initially heard by a three-judge district court con-
sisting of Circuit Judge Wayne Borah and District Judges Herbert Christen-
berry and J. Skelly Wright.* The black children, through a request for
a declaratory judgment and injunctive relief, sought admission to the
Orelans Parish schools on a nonsegregated basis. On February 15, 1956,
the district court announced its decision in a per curiam opinion. The
court held that the Supreme Court's decision in the Brown case was clear:
Racial discrimination in the public schools was unconstitutional; all
See, Orleans Parish v. Bush, 242 F.2d 160. The School Board's
original attorney was Sam Rosenberg, a local leader of the B'nai Brith
Anti-Defamation League. He had told the Board that the law was against
it and refused to argue the case. The Board then hired Gerald Rault,
an attorney for the Savings and Loan of which Emile Wagner, a member of
the School Board and one of New Orleans' leading segregationists, was
president. Inger, Politics and Reality, p. 18.
9See, Orleans Parish v. Bush, 242 F.2d 160.
*The parties to the suit requested a three-judge court under the
provisions of 28 U.S.C. Sec. 2281 since the constitutionality of
Louisiana statutes was in question.
Bush v. Orleans Parish School Board, 138 F.Supp. 336, 1 RRLR 305
(E.D. La. 1956).
-167-
contrary statutes (those requiring segregation) were void; and as a
result, there was no serious constitutional question presented which had
not already been decided by the Supreme Court. Therefore, Judges Borah
and Christenberry withdrew from the case, and it proceeded as it had
been originally filed.
On the same day, Judge Wright handed down the first of his many
decisions in Bush v. Orleans Parish School Board. The plaintiffs'
position was that segregation of the schools deprived them of the equal
protection of the laws guaranteed by the Fourteenth Amendment, and that
under the Brown decision, the Board should be restrained from continuing
that practice. The School Board argued that the suit should be dis-
missed because: 1) It was a suit against the state of Louisiana, filed
without the consent of the state and thus barred by the doctrine of
sovereign immunity; 2) there was no justiciable controversy presented
because no plaintiff had been denied admission to a particular school;
and 3) the plaintiffs had not exhausted administrative remedies available
12
to them. Wright agreed with the plaintiffs' position and granted the
rel ief they sought.
Judge Wright addressed himself to each of these contentions and
found them to be without merit. First, Wright said, a suit against an
officer or agent of a state acting illegally was not a suit against the
state. The Brown desegregations cases were suits just like the one before
the court, as were most other desegregation cases. If such a suit was
barred by sovereign immunity, certainly some federal court would have
]1133 F.Supp. 377, 1 RRLR 306 (E.D. La. 1956)
12Ibid., pp. 306-07.
noticed it. As to the existence of a justiciable controversy, the Judge
maintained that if the deprivation of constitutional rights through the
Board's requirement of segregation was not such an issue, none existed
at all. Wright further ruled that the plaintiffs had exhausted all
administrative remedies. The appeals procedure established by Act 555
of 1954 had been held invalid by the three-judge court and thus could not
be relied upon. Even if the Pupil Placement Act (Act 556 of 1954) was
not invalid as part of the 1954 segregation package, it was invalid
because it was an unlawfull delegation of legislative authority to the
superintendents of schools since it contained no standards for assign-
ment. Further, the school children had made repeated efforts to be
assigned to nonsegregated schools. To require thousands of children to
make further application, particularly since the Board had refused to
desegregate the schools, would be to require a vain and useless ges-
13
ture.
Judge Wright then granted the temporary injunction sought and
ordered the School Board to desegregate its schools "with all deliberate
14
speed. While the schools would not be desegregated overnight, for
that constituted a revolution in Southern mores requiring patience and
understanding, Wright warned the Board that the difficulties surrounding
desegregation would not be allowed to deny the plaintiffs their rights as
freeborn Americans.
The immediate reaction of the School Board was to seek direct re-
view of the three-judge decision in the Supreme Court. On April 5, 1956,
1 3 I b i d . , pp. 307-
14Ibid., p. 308.
Ibid.
169-
the School Board sought a writ of mandamus from the Supreme Court to
order further hearings on the constitutionality of Louisiana's segrega-
tion laws before a three-judge court. In Orleans Parish School Board
v. Bush, the Supreme Court denied mandamus.
While the School Board was trying to avoid enforcement of Judge
Wright's order, the Louisiana Legislature began its 1956 session. In
view of the federal proceedings, additional legislation regarding the
schools was felt to be necessary. In June and July, the Governor signed
three measures designed to maintain the existing system. The first of
these required a certificate of eligibility and good moral character
signed by the parish superintendent of education for admission to any of
1 8
the publicly financed universities in the state. No guidelines or
standards were included within the act, thus giving the superintendent
complete discretion. The second of the statutes was more direct, as it
provided for the suspension of the compulsory school attendance law
19
wherever integration of the schools was required by court order.
The last of the 1956 laws was clearly related to the federal liti-
gation, for it applied only to New Orleans. This legislation required
16New York Times, April 16, 1956, p. 10, col. 1.
1776 S.Ct. 854, 351 U.S. 948 (1956). Throughout the course of the
Orleans Parish case, the Supreme Court periodically rendered brief de-
cisions without opinions. In each instance, these decisions upheld the
action of the District Court for the Eastern District of Louisiana and
the Court of Appeals for the Fifth Circuit. The following are the
citations to those rulings. 77 S.Ct. 1380, 354 U.S. 921 (1957), cert,
denied; 81 S.Ct. 28, 364 U.S. 803 (1960), motion and stay denied; 81
S.Ct. 260, 365 U.S. 569 (1960), stay denied; 81 S.Ct. 1917, 367 U.S. 908
(1961), aff.; 82 S.Ct. 119, 368 U.S. 11 (1961), aff.
18House Bill 437 of 1956.
19House Bill 438 of 1956.
-170-
the separate use of school buildings by black and white students and
white teachers and black teachers could only instruct children of their
race, and a Special School Classification Committee of the Louisiana
Legislature was created with the sole power to classify and reclassify
the public schools, subject only to the ratification of the Legislature
as a whole. These provisions applied only to cities with a population
20
in excess of 300,000. The only city in Louisiana which met this quali-
fication was New Orleans.
The state of Louisiana had made it very clear that it was committed
to opposing desegregation in New Orleans. The Legislature had also
sought to prevent the School Board from being subject to a court order
to desegregate by taking unto itself the authority to classify the Orleans
Parish schools.
Meanwhile, the School Board had appealed Judge Wright's order on the
grounds that he had erred in his findings and that the evidence at
trial had not warranted the issuance of a temperary injunction. The
case was heard as Orleans Parish School Board v. Bush, before Judges
Rives, Tuttle, and Brown. The decision, prepared by Judge Tuttle for
an unanimous court and announced on March 1, 1957, affirmed the lower
court's ruling and held the Louisiana segregation laws unconstitutional.*
Although the issue of sovereign immunity in suits of this kind had been
settled in the Brown case, because both the Board and the Louisiana
Attorney General had urged it so strongly, Judge Tuttle went to some
20
Senate Bill 350 of 1956.
21242 F.2d 156 (5th Cir. 1957).
*0n April 5, 1957, a further rehearing was denied.
-171-
lengths to discuss the issue. While it was true, he said, that suits to
compel state action were generally barred in the absence of agreement by
the state to be sued, the suit before the Court did not seek to compel
state action. Rather, Tuttle argued, it sought to prevent state action
in violation of the plaintiff children's rights. If the laws under which
the Board purported to act were invalid, then the Board was acting without
22
the authority of the state.
The claim that the plaintiffs had failed to exhaust their adminis-
trative remedies was without merit, for under the law when the suit was
originally filed (before the enactment of the 1954 laws), the plaintiffs
had followed all possible administrative procedures. Further, even if
the 1954 laws were applied, plaintiffs had sought an end to the practice
of segregation, not specific assignment to particular schools. Since
assignment by Louisiana law could be made only to segregated schools,
21
plaintiffs could not be required to do a "vain and useless act."
In response to the Board's claim that the school children had shown
no proof of actual or immediate irreparable injury which would entitle
them to a temporary injunction, Tuttle said the denial of their con-
stitutional rights represented an irremediable loss. Further, the scope
of the injunction was limited and contained no immediately compulsive
24
features applicable to the Board.
Judge Tuttle then addressed the central issue, the constitutionality
of the 1954 Louisiana Constitutional amendment and statutes. Unless the
22Ibid., pp. 160-61.
23Ibid. , p. 162.
Ibid.
-172-
changes in the law altered the situation, the plaintiff school children
would be entitled to their declaratory judgment under the reasoning of
the Brown desegregation cases. The only change that Tuttle saw was that
segregation of the races in the public schools was no longer based on
race but on the exercise of the state police power to promote the public
25
health and safety.
The state had introduced affidavits indicating that blacks had a
higher percentage of undesireable traits such as lower intelligence
ratings and higher rates of illegitimacy and social diseases. Such
characteristics had never before been the basis of pupil classification
or assignment. To employ them now and identify blacks with those traits
was unthinkable and revealed what was at the heart of the classification,
race. Further, while the states retained extremely broad police powers,
that power was "limited by the protective shield of the Federal Consti-
tution." Thus, police power did not entitle a state to violate its
citizens' constitutional rights. Most importantly, Judge Tuttle argued,
Louisiana was attempting to accomplish precisely what was expressly for-
bidden by the Brown desegregation decisions. Classification of pupils by
race was no longer permissible, even in the exercise of a state's police
27
power. Thus, the 1954 segregation legisla
Legislature was unconstitutional and void.*
27
power. Thus, the 1954 segregation legislation passed by the Louisiana
25,..,
Ibid. .
, p. 163.
26,..,
Ibid .
27...,
Ibid..
p. 164.
*The Court also held that the Pupil Assignment Act passed in 1954 was
unconstitutional since it contained no standards and gave the superinten-
dent the power to assign students arbitrarily. This was a particularly
serious fault given the history of pupil assignments made under this law.
Ibid., pp. 164-65. Judge Tuttle also summarily held that plaintiffs'
suit was a valid class action.
-173-
In affirming Judge Wright's decision, Tuttle remarked that the
limited scope of the inunction and the willing acquiescence in delay by
the plaintiffs* provided the School Board an ample opportunity to display
its good faith in complying with the desegregation order. While suf-
ficient time would be allowed to arrive at desegregation, even if the
Board did not act in good faith, the Court would meet its responsibilities
and vindicate the constitutional rights of the black school children.
Almost immediately the School Board was back in Judge Wright's court
attempting to avoid the desegregation order. It filed a motion to
vacate the injunction because the plaintiffs had not filed a $1,000 bond
with the court as required by Wright's original decree. The plaintiffs
then filed the required bond, which was approved by the district court
on June 19, 1957. One week later, Judge Wright, in an unreported de-
29
cision, denied the School Board's motion to vacate. The School Board
appealed this denial to the Court of Appeals.
The case was heard this time before Chief Judge Hutcheson and
Judges Tuttle and Jones. Tuttle again wrote the opinion, affirming
30
Wright s decision, which was announced on February 15, 1958. Judge
Tuttle noted that it was not until after the previous Court of Appeals
*That the plaintiffs accepted delay was evidenced by the fact that
their attorneys took no steps to force implementation of Judge Wright's
1956 order until mid-1959. Inger, Pol itics and Reality, p. 18.
28
Orleans Parish v. Bush, p. 166.
29
See, Orleans Parish School Board v. Bush, 252 F.2d 253, 3 RRLR
171,172 (5th Cir. 1958).
30
Orleans Parish School Board v. Bush, 252 F.2d 253, 3 RRLR 171
(5th Cir. 1958).
-174-
opinion had been announced that the Board first complained of plaintiffs'
failure to file the bond. It was clear to Tuttle that the Board was now
raising the issue for the purpose of delay. It was true that such bonds
were required to protect against injury incurred from wrongfully issued
injunction, but in the present instance, the technical failure on the
part of plaintiffs had caused no injury. The injunction had required no
specific act, the School Board had not been injured, and the defect had
been cured when the plaintiffs filed the required bond. In any event,
the early failure to file had been waived by the School Board by its
32
failure to complain upon the appeal of Judge Wright's order.
By this time, Judge Wright was clearly dissatisfied with the pro-
gress made by the School Board toward compliance with his desegregation
order. That order was now two years old and no preparations had been
made. Wright warned the Board that he wanted no more delaying tactics,
for he saw no disputable facts remaining in the case. It could not
have pleased him, therefore, when a new Board motion to vacate the in-
junction was filed.
It will be recalled that during the 1956 legislative session, a
statute was passed transferring the power to classify the schools of
Orleans Parish from the School Board to a special committee of the Legis-
lature. It was upon this basis that the Board now sought to vacate the
desegregation order entered against it, for the Board claimed it no
longer had control over the classification of Orleans Parish schools.
31Rule 64(c), F.R.C.P.
32
Orleans Parish v. Bush, pp. 172-73.
3New York Times, April 3, 1958, p. 11, col. 5.
-175-
Judge Wright's brief opinion of July 1, 1958, denied the Board's motion
and reflected his impatience with the School Board. He simply stated
that:
It would serve no useful purpose to labor this matter.
The Supreme Court has ruled that compulsory segrega-
tion by law is discriminatory and violative of the
equal protection clause of the Fourteenth Amendment.
[Citation omitted] Any legal practice, however
cleverly contrived, which would circumvent this ruling,
and others predicated on it, is unconstitutional on its
tute in suit. '5
face. Such an artifice is the stati
The injunction against the Board's operation of the public schools on a
segregated basis was made permanent.
At the same time, the Louisiana Legislature was holding its regular
session for 1958. At this session, an even more extensive series of
segregation statutes was enacted. These laws provided the state with an
arsenal of weapons to combat court-ordered desegregation of the public
schools. First, the Legislature recognized the likelihood that a good
deal of federal litigation would occur in the future. Thus, the law-
makers provided for the continuation and preservation of the salary of
any school official called away from his normal duties as a result of
Of"
federal action relating to desegregation. This possibility certainly
existed, for the Legislature also authorized the Governor to close the
schools or reopen schools, continue salaries when such schools were
closed, treat students of such closed schools as if they were attending
34
Orleans Parish School Board v. Bush, 163 F.Supp. 701, 3 RRLR 649
(E.D. La. 1958).
35Ibid., pp. 650-51.
35Act 187 of 1958.
176-
school , and sell such schools to private citizens who wished to operate
37
private schools. The Legislature also authorized the establishment of
"Educational Cooperatives" to provide primary and secondary education
facilities.
The lawmakers also provided a system of tuition grants for children
who attended private, non-sectarian schools where no public segregated
schools were available in the parish. These grants could be funded from
39
local tax revenues. In preparation for the above, the Legislature also
authorized a study of the efficiency of public education and set up an
interim school placement program similar to those in use in Florida and
40
Texas. This statute also contained the following miscellaneous pro-
visions: 1) denied to local school boards the right to comply with
federal court integration orders; 2) gave local school boards full dis-
cretion in pupil assignment; 3) allowed students from adjoining parishes
to be admitted into each other's schools; and 4) provided that no stu-
dents would be required to attend integrated schools. All of the above
statutes established penalties for the violation of their provisions.
The School Board was determined to avoid the district court desegre-
gation order, and therefore it appealed Judge Wright's ruling on the
impact of the 1956 law which had removed the control of classification
of schools from the Board to the Legislature. Chief Judge Hutcheson and
Judges Rives and Tuttle heard the case in the Court of Appeals. In a
37Act 187 of 1958.
38Act 257 of 1958.
39
Act 258 of 1958.
40Act 259 of 1958.
-177-
per curiam opinion dated June 9, 1959, and a denial of a petition for re-
hearing written by Judge Tuttle and dated July 15, 1959, they affirmed
Judge Wright's 1956 district court decision,41 and said that the consti-
tutionality of the 1956 statute was immaterial. If state officers (the
School Board) performed their duties in violation of the U.S. Constitu-
tion, they could be enjoined from continuing such acts. Moreover, the
operation of the Orleans Parish schools effectively remained in the hands
of the School Board, and it was therefore properly subject to the lower
. . 42
court s injunction.
On the petition for rehearing, Judge Tuttle made it as clear as pos-
sible to the Board that its tactic of denying responsibility would not
succeed. The Board argued that federal courts should abstain from ruling
on the constitutionality of state laws until the highest court of the
state made its ruling. Tuttle agreed, but said that situation was not
before the Court. It had repeatedly been held that the School Board could
not continue to operate the schools on a segregated basis. No Louisiana
statutes could make such operation permissible, regardless of the nature
43
of those laws. The message to both the Board and the Legislature was
clear: No artifice will prevent obedience to federal law.
By now the litigation was eight years old and five years had passed
since the Supreme Court's landmark Brown decision of 1954. As a result
of all the delays experienced in the case, attorneys for the plain-
tiff school children filed a motion for further relief in the district
court. The Board had continually dragged its heels, and as a
41
Orleans Parish School Board v. Bush, 268 F.2d 78, 4 P*RLR 581
(5th Cir. 1959).
4?
Ibid., p. 583.
43Ibid.
-178-
consequence, on the same day Judge Tuttle's opinion was announced, Judge
Wright ordered the School Board to present a desegregation plan in court
by March 1, 1960. At a subsequent conference of the parties on October
9, 1959, Judge Wright extended the deadline until May 16, 1960. Orleans
Parish finally had to provide a desegregation plan by a specified date.
Whatever might have been the sentiment of the School Board members
at this point, that body had lost control of the situation, for the state
of Louisiana now began to take an even more active role in the case. The
Louisiana Attorney General brought an action for declaratory relief in
the Civil District Court for Orleans Parish seeking interpretation of
the 1956 statute transferring classification power to the Legislature.
The state court held that the statute conferred upon the Legislature the
right to classify the Orleans Parish schools as all white, all black, or
45
mixed. A private citizen intervened and appealed to the state supreme
court contending that the statute could not be interpreted as allowing
a "mixed" classification. The Louisiana Supreme Court held that it had
no jurisdiction to hear the case because the statute had not been ruled
invalid and transferred the case to the Orleans Parish Court of Appeals.46
The Court of Appeals affirmed the Civil District Court's decision,
holding that the Legislature reserved to itself the sole power to clas-
sify the schools and indicated that "at some future time it might become
desireable to establish" schools which were integrated.
44
Ibid., pp. 583-84.
45
State v. Orleans Parish School Board, 5 RRLR 72 (Civ.D.Ct. La. 1959).
46
State v. Orleans Parish School Board, 118 So. 2d 127, 5 RRLR 74
(La. 1960).
47
State v. Orleans Parish School Board, 118 So. 2d 471, 5 RRLR 375
(C.A. La. 1960).
-1 79-
This litigation extended from mid-1959 through mid-March of 1960.
As a result, the School Board was faced with a federal requirement, to
present a desegregation plan, and a state requirement, providing that
the only legitimate authority for classifying the Orleans Parish schools
rested with the Louisiana Legislature. Therefore, the School Board ap-
proached the federal court deadline in a state of paralysis. The only
action it took was to hold a poll in New Orleans to determine whether the
citizens would prefer to integrate their public schools or close them.48
The results of that poll showed that among white parents the vote was
12,299 in favor of closing the schools and 2,707 in favor of keeping
them open even if integrated. Among black parents the corresponding
vote was 679 to 11,407. Lloyd Rittiner, president of the School Board,
indicated he would disregard the votes of black parents since it was, he
said, the whites who supported the schools and elected the Board.
Thus, when the School Board appeared in Judge Wright's court on
Hay 16, 1960, it was empty-handed. The Board told the Judge that it had
not prepared a desegregation plan, for it believed it did not have the
power to do so. Since the original desegregation order was now over
four years old, and the Board had not met its responsibilities, Wright
would force them to. He thereupon ordered all public schools in New
Orleans desegregated with the beginning of school in September, 1960.
All first graders would attend the school nearest their homes, regardless
of race, and school transfers would be allowed if not based on race.50
The time had at last come for the New Orleans schools.
48
New York Times, May 1, 1960, p. 81, col. 1.
49
Ibid., May 8, I960, p. 67, col. 1.
50
Bush v. Orleans Parish School Board, 5 RRLR 378 (E.D. La. 1960).
-180-
The School Board immediately sought a stay of Judge Wright's order
in the Court of Appeals. The motion for stay was heard by Judges Tuttle,
Cameron, and Wisdom. In a five-line per curiam opinion dated June 2,
I960, Judges Tuttle and Wisdom denied the motion for a stay, while Judge
Cameron entered a lengthy dissent.
Judge Cameron's dissent was based on both legal and factual grounds.
As to the latter, he insisted that enforcement of Judge Wright's order
would revolutionize the lives of students and parents of New Orleans
and that as a result, "nothing but chaos could result and the enforce-
ment of the order would be accompanied by nothing but harm to the chil-
dren, the parents and the teachers of both races and to the entire com-
52
munity. The legal basis of Cameron's dissent, and one that he had
continually raised in desegregation cases, was that the district court
judge had exceeded his authority by declaring a law of Louisiana un-
constitutional. Such power was reserved, Cameron said, to a three-judge
53
court. Finally, Cameron argued, the Brown decision did not require
integration but prohibited racially discriminatory state action, and as
far as he was concerned, no such action had been proven in the case.54
The Major Battle: 1960-1961
With the opening of the regular session of the Louisiana Legisla-
ture in July of 1960, the pace of the New Orleans desegregation case
51
Orleans Parish School Board v. Bush, 5 RRLR 655 (5th Cir. 1960)
52Ibid., p. 658.
53Ibid., pp. 658-59.
54
Ibid., pp. 657-58.
-181-
increased, and what had been a frustrating legal controversy was trans-
formed into a domestic crisis. The legal maneuvering which had gone
before was merely prologue. The chief protagonists were no longer Earl
Benjamin Bush and those he represented (the plaintiff black school
children) and the Orleans Parish School Board. Indeed, they became
pawns in the conflict. Now the battle lines were drawn between the
judicial power of the United States (represented by the District Court
for the Eastern District of Louisiana and the Court of Appeals for the
Fifth Circuit) and the state of Louisiana (represented by its Governor,
Legislature, and other state officials). The victims were the parties
to the suit, the school system of Orleans Parish, and the reputation of
the city of New Orleans.
The singing Governor of Louisiana, JimmieH. Davis, made his posi-
tion, and coincidently that of the Legislature, quite clear as the 1960
session got under way. He vowed that the "New Orleans schools would
55
remain segregated" in the fall. To give substance to that vow, the
Legislature enacted an even more extensive series of laws designed to
ensure the continuation of segregation. Many of these statutes were
reenactments of earlier legislation which had either been specifically
declared unconstitutional or whose validity was open to serious question
as a result of court decisions.
The Legislature sought to prevent any integrated school from
operating. It made furnishing free textbooks or other school supplies
to any integrated schools illegal and cut off state funding for lunch
programs in such schools, reenacted the statute calling for the state
55
New York Times, July 6, 1960, p. 19, col. 4.
56
Act 333 of 1960.
-182-
board of education study of the efficiency of the public schools, and
prohibiting any general reallocations of students until the study was
57
completed. As evidence of the state's commitment to resisting court
ordered integration, the Legislature provided that in the event that
any public school or school system was threatened with integration, the
Governor was authorized to close alj_ public schools, protect school
property, treat teachers and students as if the schools were still open,
and even sell the schools to private agencies or corporations. The
Legislature restated its sole power to reclassify schools for use by
another race and further provided that the Governor was to take personal
59
control of any school ordered to desegregate. The Governor was also
again given the power to close any public school in cases of disorder,
riots, or violence, or where necessary to prevent such occurrences, and
to reopen the school when its peaceful operation could be assured.
Similar measures were passed for application to state trade and special
schools. Finally, the lawmakers again required all children applying
for the first time to public or private schools to furnish a birth
57
Act 492 of 1960. This statute also set forth general criteria
for the guidance of local school boards in making individual reassign-
ments. Among these standards were the availability of transportation;
the effect of the admission of new students on established academic
programs; the scholastic aptitude, relative intelligence, and mental
energy of the pupil; and the psychological effect on the pupil of
attendance at a particular school.
58Act 495 of 1960.
59
Act 496 of 1960. It was also provided that any suits brought to
challenge this Act or any section of it had to be brought against the
state of Louisiana.
60Act 542 of 1960.
51Acts 579 through 582 of 1960.
-183-
en
certificate specifying age and race to the principal. Thus, the state
of Louisiana made clear its intention that the public schools would be
either segregated or closed.
The position taken by the state was not without its effects. There
were some indications that business leaders in New Orleans now favored
token integration rather than closing the public schools. People in
New Orleans not previously identified with opposition to segregation
formed the Committee for Public Education (CPE) to maintain public
education even if this meant accepting some integration. This support,
meager though it was, and fears that the schools would be closed, made
it possible for the School Board to edge toward token desegretation.
At the same time, however, the School Board's legal position was
made no easier, for the state courts had held that under Louisiana
law (Act 496 of 1960) only the Legislature has the power to classify
65
and reclassify the public schools. Therefore, the integration of
the New Orleans schools ordered by the federal courts could only be
accomplished by the Legislature. The earlier decisions in the federal
courts were only in personam* judgments and did not bar subsequent
62Act 541 of 1960.
New York Times, August 14, 1960, p. 56, col. 4.
64
Inger, Politics and Reality, p. 28. The members of the School
Board throughout the crisis were Lloyd Rittiner, an oil company execu-
tive, Louis Riecke, a lumber man, Matthew Sutherland, an insurance ex-
ecutive, Theodore Shepard, a shrimp importer, and Emile Wagner, an attor-
ney and bank official. All but Wagner, who was an ardent segregationist,
were moderates. Inger, Pol itics and Reality, p. 16.
65
State v. Orleans Parish School Board, 5 RRLR 659 (Civ.D.Ct. 1960).
*Such judgments apply only to individuals and do not necessarily
dispose of the legal and factual matters in a case. A judgment in raj de-
termines not only the legal standing of individuals but also resolves all
-184-
action in another jurisdiction. The School Board was therefore en-
joined from reclassification of "negro or non-negro" schools.
The School Board's position was soon made even more uncertain.
On August 17, 1960, Governor Davis announced that he was superseding
the Orleans Parish School Board and taking over direct control and
management of the Orleans Parish public schools under the provisions
of Act 496 of 1960. The next day, the Attorney General of Louisiana,
Jack P.F. Gremillion, published an open letter justifying the Governor's
action of the previous day. He argued that under the statute, the
68
Governor was required to lake this action.
Reaction to the Governor's action was immediate. On the same day
Governor Davis made his announcement, a suit was filed in the district
court by thirty white parents of Orleans Parish school children for an
injunction to prevent the Governor from interfering with the operation
of the New Orleans schools. This suit, instigated by CPE, under the
title Mil liams v. Davis, was consolidated with the Orleans Parish case
69
for hearing. It was an important political step, for at least some
white parents were now committed to supporting open schools. The filing
of the suit also provided the School Board with a viable alternative
to pro-segregation or pro-integration. The Board could now simply
legal questions regarding the subject matter. An in rem judgment bars
legal action in any other jurisdiction.
66Ibid., p. 660.
675 RRLR 661 .
685 RRLR 663-666.
69
Inger, Politics and Reality, pp. 30-31,
-185-
support keeping the schools open. On August 20, the School Board
announced that the schools would open on September 7, 1960.
The decision in the consolidated case of Bush v. Orleans Parish
School Board and Hill iams v. Davis was delivered by a three judge dis-
trict court, Circuit Judge Rives and Judges Christenberry and Wright, on
August 17, 1950. They once more held Louisiana statutes unconstitu-
tional. The history of the proceedings was briefly recounted, including
the fact that upon plaintiffs' motion, the Governor and the Attorney
72
General of Louisiana were made additional party defendants in the suit.
The court then considered the impact and validity of several Louisiana
statutes and the state court injunction.
With regard to Act 496 of 1960 (Legislature's sole power to classify
schools and the Governor's operation of schools where court-ordered
integration) and the state court injunction, the judges left no room
for doubt. The statute granting the Legislature the right to decide
whether or not a school would be segregated was unconstitutional. The
Brown decision had made it clear that no one had that right. For the
same reason, the Governor had no right to operate the public schools on
a segregated basis as required by the statute in question.
The court also held unconstitutional other Louisiana laws which
had as their sole purpose the continuation of segregation. Among these
705 RRLR 662.
71 187 F.Supp. 42, 5 RRLR 666 (E.D. La. 1960).
72Ibid., 5 RRLR 667.
73
Ibid. , pp. 667-68. Obviously, the state court injunction was
void, for it was based on an unconstitutional statute.
-186-
statutes were Act 256 of 1958 (right to close any school ordered inte-
grated); Act 495 of 1960 (right to close all schools if one integrated);
Act 333 of 1960 (no textbooks for integrated schools); Act 555 of 1954
(enforcement of segregation through police power); and Act 319 of 1956
(white and black schools to be continued). The district court also
determined that Act 542 of 1960 (right to close any school threatened
with violence and disorder), while not specifically predicated upon
integration, was also unconstitutional, for "the purpose of the act is
so clear that its purpose speaks louder than its words."
Finally, the execution date of Judge Wright's May 16, 1960, desegre-
gation order was extended from the opening of school in September until
November 14, 1960. This was done as a result of the confusion created
by the Governor's August 17 announcement and the state court injunction.
While the plaintiffs opposed the extension, the court noted that the
School Board members, with the exception of Emile Wagner, had demonstrated
their good faith by appearing at the hearing. The four moderate Board
members had met with Judge Wright privately and assured him that although
they had no desegregation plan of their own, they would comply with his
desegregation order. Now, eight years after the original filing of
the desegregation suit and four years after New Orleans had first been
74Ibid. , p. 668.
75
Ibid. The Court also cited Attorney General Gremillion for con-
tempt for his behavior and remarks made in and near the court. Ibid.,
pp. 668-69.
Ibid., p. 668. On August 31, 1960, Judge Wright sitting alone
issued a stay order conforming to the decision of the three-iudqe court.
Ibid., p. 669.
Inger, Politics and Reality, p. 32.
-187-
ordered to end segregation in its schools, a hesitant and fearful School
Board had to plan for desegregation.
By October 10, 1960, over 130 black first graders had indicated a
desire to attend formerly all white schools. School Board president
Rittiner said the students selected to integrate the schools would be
chosen according to the criteria set out in the Pupil Placement Act (Act
492 of 1960), and it was unlikely that more than a few black students
78
would attend any previously white school. The Board selected two white
schools which had low student test scores to be desegregated, so that
the black students would have a chance to adjust. These schools were
William Frantz Primary School and McDonogh No. 19 School, both of which
were in the same low-income white neighborhood. The choice, supposedly
scientific, was rather unfortunate, for anti-black sentiment was high in
this neighborhood. Further, segregationists could concentrate their
efforts since both schools were in the same area, and the neighborhood
was adjacent to St. Bernard Parish, the political base of the powerful
79
segregationist, Leander Perez.
Dr. James F. Redmond, the Superintendent of the Orleans Parish
schools, announced two weeks later that five of the black students had
on
finally been selected to initiate integration. The selection of these
schools and students was thought to give the best chance for an un-
eventful desegregation in New Orleans. Indeed, the Board had reason to
believe all would go well, for in early November, 1960, against
78
New York Times, October 11, 1960, p. 36, col. 6.
79
Inger, Politics and Reality, pp. 36-39.
80
New York Times, October 28, 1960, p. 21, col. 1.
188-
vigorous opposition from segregationists, moderate Board member Sutherland
was reelected.
The Board had not, however, considered the implacability of Governor
Davis' and the Legislature's opposition to integration. In early Novem-
ber, the Governor convened the first of several consecutive extraordinary
sessions of the Louisiana Legislature held during late 1960 and early
1961, and a package of twenty-eight bills to combat the court-ordered
Qp
November 14 integration deadline was passed. The statutes passed
covered a broad variety of measures designed for the maintenance of
segregation. Much of the legislation consisted of reenactments of
earlier laws declared unconstitutional in the federal courts.
81
Inger, Pol itics and Reality, p. 47.
op
New York Times, November 5, 1960, p. 24, col. 2.
Repeated citation for these statutes seems unwarranted. The laws
in question are Acts 1 through 28, 1st Ex.Sess. 1960. They were all
signed into law by Governor Davis on November 8, 1960. Support for this
"segregation package" was overwhelming. While some of the Senators from
New Orleans opposed parts of the package, even they voted for the Inter-
position Resolution. In the House, for example, Interposition passed by
100 to zero. New York Times, November 7, 1960, p. 1, col. 2, and Novem-
ber 9, 1960, p. 14, col. 3. What follows is a brief description of the
laws enacted.
Act No. 1. Appropriated $168,000 from the general fund to pay the
costs of the session.
Act No. 2. An "Interposition Resolution" against federal actions
dealing with the operation of schools in Louisiana. The Resolution argued
the historic basis for interposition and that the Brown desegregation
decisions were unconstitutional. Under the Tenth Amendment to the U.S.
Constitution, Louisiana had full sovereignty, and the federal court
decisions in the Orleans Parish case were therefore null and void. The
sovereignty of Louisiana was interposed between the federal courts and
those organizations and individuals allegedly subject to federal courts'
orders until the Brown decisions became the law of the land through proper
constitutional amendment.
Acts Nos. 3 through 9. These statutes repealed previous legislation
which had been declared unconstitutional in the federal courts. They
were respectively: Act 319 of 1956, Act 542 of 1960, Act 496 of 1960,
Act 256 of 1958, Act 333 of 1960, and Act 555 of 1954.
Acts Nos. 10 through 14. With very little change in language,
these acts reenacted some of the above statutes declared unconstitutional
-189-
The activities of the Governor and the Legislature were met promptly
by the plaintiffs in the Williams case which had been consolidated with
and on the same day repealed by the Legislature. These were respectively:
Act 542 of 1960, Act 256 of 1958, Act 495 of 1960, Act 333 of 1960, and
Act 555 of 1954.
Act No. 15. Allowed the State Sovereignty Commission, which had
been created during the regular 1960 session, to employ legal counsel
and set his compensation.
Act No. 16. Expanded the powers of the state police to include "any
other related duties imposed upon them by the legislature." Specifically,
restriction upon state police activities within municipalities having
their own police forces was removed.
Act No. 17. Suspended the powers of the Orleans Parish School Board
and vested them in the legislature. Some employees of the School Board
were also made subject to the exclusive control of the legislature.
Act No. 18. Provided that when any school board ceased to exist,
the legislature would appoint trustees to take custody of the funds of
that board and set the funds aside for the use of the children.
Act No. 19. Repealed a statute designating the Orleans Parish
school superintendent as the treasurer of the school board.
Act No. 20. Only schools operated "in conformity with the consti-
tution and laws of the state" and state board of education policy and
rules were to be accredited by the state board of education. That is,
only segregated schools were accredited.
Act No. 21. School boards were prohibited from operating if any
schools under their jurisdiction were ordered to integrate. Any school
official or other officer who operated schools in violation of the
statute would be guilty of malfeasance and subject to removal from
office.
Act No. 22. Any schools which were operated on an integrated basis
were to be closed and the school property sold.
Act No. 23. Any teacher teaching an integrated class would have his
or her license revoked and any school officials permitting this were also
to have their licenses revoked and would be fired.
Act No. 24. Promotion and graduation credits were denied to any
student who attended schools in which any classes were integrated.
Act No. 25. Repealed statutes concerning the nomination and elec-
tion of members of the Orleans Parish School Board and authorized the
legislature to make new provisions for the creation and election of a
new Board.
Act No. 26. Prohibited the transfer of any students from schools
in which they were registered in September, 1960, unless the students
changed their residence.
Act No. 27. Repealed major sections of the state law requiring
compulsory school attendance.
Act No. 28. Made the provisions of Act No. 23 (revocation of
teachers' licenses) applicable to trade and other special schools.
Act No. 29 provided that trade and special schools would be closed
if they were operated on an integrated basis.
The legislature was not content with passing this exhaustive pack-
age of segregation laws. By Resolution, it established a committee with
-190-
the original suit in the district court. They asked for an injunction
against the enforcement of certain of the newly passed statutes on the
ground that they were merely replacements for statutes which had earlier
been declared unconstitutional. On November 10, 1960, Judge Wright
84
granted the requested temporary injunction. To grasp the extent of
state opposition to the desegregation orders of the federal court, the
breadth of Judge Wright's restraining order is most instructive. His
order, reproduced below in part, was typical of several succeeding
orders in the Orleans Parish case. It read:
IT IS ORDERED that the Honorable Jimmie H. Davis,
Governor of the State of Louisiana; the Honorable
Jack P.F. Gremillion, Attorney General of the State
of Louisiana; the Honorable A. P. Tugwell , Treasurer
of the State of Louisiana; the Honorable Roy R.
Theriot, Comptroller of the State of Louisiana; the
Honorable Shelby M. Jackson, State Superintendent of
Public Education of the State of Louisiana; Major
General Raymond H. Fleming, Adjutant General of the
State of Louisiana; Colonel Murphy J. Roden, Director
of Public Safety of the State of Louisiana; the
Orleans Parish School Board and its members, namely
Lloyd J. Rittiner, Louis G. Riecke, Matthew R.
Sutherland, Theodore H. Shepard, Jr., and Emile A.
Wagner, Jr.; James F. Redmond, Parish Superintendent
of Schools for the Orelans Parish School Board;
Edward F. LeBreton, Charles Deichmann, Risley C.
Triche, P.P. Branton, Wellborn Jack, Vail Deloney,
William Cleveland, E.W. Gravolet [members of the
special legislative committee]; the State Board of
Education of the State of Louisiana and its members,
Joseph J. Davies, Jr., Isom J. Guillory, Alfred E.
the authority to institute suits to enforce and carry out the provisions
of Act No. 2, the Interposition Resolution (House Concurrent Resolution
(HCR) 9, 1st Ex.Sess. 1960). The Legislature further demonstrated its
purpose by implementing provisions of Act No. 17 by delegating to an
eight-member legislative committee the full control of the Orleans Parish
schools (HCR 10, 1st Ex.Sess. 1960).
84
Orleans Parish School Board v. Bush, 5 RRLR 1001 (E.D. La. 1960).
■191-
Raberts, Merle M. Welsh, Raymond Heard, Mrs. Eleanore
H. Meade, Leon Gray, George T. Madison, F.E. Cole,
Nash C. Roberts and Robert H. Curry, and all those
persons acting in concert with them, or at their
direction, be, and they are hereby restrained and
enjoined from enforcing the provisions of the statutes
enacted pursuant to House Bills Nos. 10, 11, 12, 13,
14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, of the
First Extra Session of the Louisiana Legislature of
1960, and from otherwise interfering with the opera-
tion of the public schools for the Parish of Orleans
by the Orleans Parish School Board, pending hearing of
plaintiff's motion for a preliminary injunction. 85
New Orleans was tense as it awaited the beginning of desegregation
on November 14. City police were ordered to guard Judge Wright's home,
and a unit of federal marshals was present in reserve to prevent inter-
ference with Wright's order.86 As the fateful day approached, Louisiana
officials made another last minute try to prevent integration. On
Saturday, November 12, the state superintendent of schools, Shelby M.
Jackson, called a school holiday for the next Monday. The schools would
not be open on November 14 for integration to take place.
On Sunday, November 13, the Legislature, still sitting in its first
extra session, passed three resolutions bearing on the matter. First,
it withdrew from the special legislative committee earlier established
the power to administer the schools of New Orleans and transferred that
QQ
power to the Legislature as a whole. The legislators then repealed
the School Board decision to integrate the schools of New Orleans, dis-
missed Orleans Parish Superintendent of Schools, Dr. James F. Redmond,
85,, ..
Ibid.
New York Times, November 12, 1960, p. 1, col. 7.
R7
Ibid. , November 13, 1960, p. 1, col. 6.
88HCR 17, 1st Ex.Sess. 1960.
- 1 92-
and Samuel I. Rosenberg, the School Board attorney, and took over the
89
funds of the New Orleans schools. November 14 was declared a school
holiday and an increased force of sergeants-at-arms was sent to New
90
Orleans to prevent the opening of any school.
Immediately, the plaintiffs in the Bush case petitioned Judge Wright
for a restraining order to prevent the implementation of Jackson's order
and the legislative resolution. Judge Wright granted the order (but not
a motion for civil contempt against Jackson that plaintiffs had sought)
and expanded the injunction to include the resolution which attempted to
deprive the School Board of its powers to operate the schools and to
dismiss Redmond and Rosenberg. Haste was required, and Wright signed
91
his order at 9:45 p.m. on November 13. On the next day, Wright granted
another temporary restraining order against the state officials earlier
named from interfering with previous orders of his court. Additionally,
Wright restrained the enforcement of House Concurrent Resolution No. 23,
adopted only minutes before the court hearing, which addressed out of
92
office the members of the Orleans Parish School Board.
On the morning of November 14, 1960, three black girls entered the
first grade at McDonogh No. 19 School, and one black girl became a first
93
grader at the William Frantz Primary School. They represented the first
integration below the college level in the five resisting states of the
89HCR 18, 1st Ex.Sess. 1960.
90
HCR 19, 1st Ex.Sess. 1960.
910rleans Parish School Board v. Bush, 5 RRLR 1004 (E.D. La. 1960).
92Ibid., p. 1006.
93
New York Times, November 15, 1960, p. 1 , col . 1.
-193-
Deep South, South Carolina, Georgia, Alabama, Mississippi, and Louisi-
94
ana. The scene at the two schools was unpleasant as hundreds came to
jeer and shout epithets at the six-year olds. Attendance by whites at
these two schools was almost non-existent, the result of a boycott and
fear of rising tension which had resulted in eleven arrests on the second
95
day of school .
In this atmosphere of fear and racial hostility, the Louisiana
Legislature continued its attack against federal court ordered desegre-
gation. On November 15, 1960, it passed Resolutions which: 1) condemned
the federal court injunctions against state officials and called on
Louisiana Congressmen and Senators to draft plans to "obtain relief from
96
this complete destruction and abuse of our democratic processes;
2) condemned court-ordered integration and called on other states to
97
invoke the doctrine of interposition in a coordinated campaign; and
3) once again addressed the members of the Orleans Parish School Board
out of office.
The situation in New Orleans subsequently worsened. On November
16, over 2,000 white youths rioted, rampaging through the streets of
the city. There were numerous assaults on blacks, and later in the day,
black and white young men attacked each other, resulting in over fifty
arrests. Tensions were further exacerbated by a mass meeting of 5,000
94
Ibid., November 11, 1960, p. 25, col. 5.
95Ibid., November 16, 1960, p. 1, col. 3.
96HCR 20, 1st Ex.Sess. 1960.
97HCR 21, 1st Ex.Sess. 1960.
no
HCR 23, 1st Ex.Sess. 1960.
-194-
on
members of the Louisiana Citizens Councils. The New Orleans police
under Chief Joseph Giarrusso performed well, however, and by the end of
the week, tension had eased and there were no more outbreaks of vio-
lence. Official peace keeping could not, unfortunately, prevent the
parents of the black girls who had integrated the schools from being
subject to harassment and intimidation. One parent lost his job as a
service station attendant.
Through all of this, the Louisiana Legislature continued its dogged
performance. Without pausing, Governor Davis reconvened the Legislature
into its second extra session of the year. On November 17 and 18, the
Legislature passed Resolutions: 1) commending white parents of Orleans
Parish who kept their children out of the integrated schools; 2) stating
that the actions of the Orleans Parish School Board were illegal and that
all banks and others having financial arrangements with the Board were
not authorized to receive or expend funds on its behalf; 3) calling for
the disqualification of Judge J. Skelly Wright from sitting in the
Orleans Parish cases because of his prejudice and bias against Louisiana;
4) criticizing the actions of the federal courts in the Orleans Parish
case; 5) calling on Judge Wright to recuse himself from the case; and
6) criticizing the failure to convene a three-judge district court to
hear the motions for restraining orders and calling for an audit of the
I no
Orleans Parish School Board finances. Louisiana lawmakers were not
ready to end the battle.
99
New York Times, November 17, 1960, p. 1, col. 4.
100Ibid., November 20, 1960, p. 72, col. 6.
101Ibid., November 22, 1960, p. 28, col. 5.
102
HCR 1 and SCR 1, HCR 2, HCR 3, HCR 5, HCR 6, and HCR 7, 2nd Ex.
Sess. 1960, respectively.
-195-
In this situation, the parties to the Orleans Parish suit cooperated,
for both realized that the Board was in what appeared to be an untenable
position. To obey federal court orders would necessitate violation of
state laws. To obey state law would possibly subject the Board to a
contempt citation. As a first step, both parties asked a three-judge
court, Circuit Judge Rives and Judges Christenberry and Wright, to desig-
nate the United States as amicus curiae. The court, on November 25,
authorized this entrance of the Attorney General and the U.S. Attorney
into the suit both to have the benefit of their views and perhaps to
103
restrain the Louisiana state officials. The Legislature responded on
November 28 and 29, 1960, by passing resolutions which memorialized the
state's U.S. Senators and Representatives to seek a constitutional
amendment to clarify authority over state public schools, and ordered
all New Orleans banks holding School Board funds to transfer them to
the Legislature.
Meanwhile, the situation in New Orleans, while rioting had ceased,
was little improved. At the two integrated schools, the boycott by
white students was almost total. Out of a normal enrollment of nearly
1,000 white students, only two were regularly attending school. The
vast majority of white students had transferred to schools in St. Bernard
1 05
Parish, the stronghold of Leander Perez. Slowly, a few white students
came back to the integrated schools, but the severity of the situation
103
Orelans Parish School Board v. Bush, 5 RRLR 1007 (E.D. La. 1960)
104
HHCR 20 and 23, 2nd Ex.Sess. 1960, respectively.
105
New York Times, November 29, 1960, p. 40, col. 6.
-196-
was demonstrated by the fact that it was considered a hopeful sign when
a total of twelve to fifteen whites attended school with the four black
. , 106
girls.
Each morning at the two schools, black students and those whites
who dared were sheparded to school by parents and at times federal mar-
shals. Both sides of the street were lined with women who heckled and
jeered at the children, and often pushed and shoved parents and those
helping them. These were the notorious "Cheerleaders" described by John
Steinbeck in Travels with Char! ie. In the face of this abuse, the
officials of New Orleans, including the liberal reform mayor, deLesseps
Morrison, stood mute. It was clear that only the federal courts would
exert the leadership and direction so sorely needed.
On November 30, 1960, the three- judge district court composed of
Circuit Judge Rives and Judges Christenberry and Wright, delivered an
extensive opinion dealing with the school desegregation in New Orleans
I Dft
and the activities of the Louisiana Legislature. The court declared
twenty-three of the statutes passed by the Legislature in its first
extra session unconstitutional, and also refused to vacate its order
requiring desegregation. After reconfirming its jurisdiction in the
log
cases, particularly with regard to enjoining the Louisiana Legislature,
the judges proceeded to discuss the central element in the legislative
program, "Interposition."
06Ibid., December 2, 1960, p. 14, col. 2, and December 3, 1960,
p. 48, col. 1 .
Inger, Pol i tics and Real ity, p. 53.
1 no
Orleans Parish School Board v. Bush, 188 F.Supp. 916, 5 RRLR
1008 (E.D. La. 1960).
109
Ibid. , pp. 1009-10. Louisiana claimed that under the Eleventh
Amendment, federal courts had no power to enjoin state legislatures. The
-197-
The court pointed out that the Legislature had clearly set the tone
for its legislation in the Interposition Resolution when it declared its
intention "to maintain racially separate school facilities. . . ."
The rest of the legislation passed was based on Interposition, and re-
gardless of its substance, if Interposition fell, the other statutes
would fall as well. Essentially, the judges argued that "the doctrine
denied the constitutional obligation of the states to respect those
decisions of the Supreme Court with which they do not agree." This
doctrine, the court said, might conceivably have had some validity under
the Articles of Confederation, but the keystone of Interposition, that
the country was formed as a compact of states, had been disavowed in the
Preamble of the Constitution. It was the people and not the states
which had established the Constitution.
Interposition, the Court maintained, would make a mockery of the
Constitution and deprive the nation of the ability to enforce its laws.
Moreover, even the champions of Interposition granted that federal law
and the decisions of the Supreme Court were controlling in areas not
included under the Tenth Amendment. However, delimitation of that
Amendment, at least under our federal system, was left to one Supreme
Court, whose decisions enunciated organic law to which legislative acts
court agreed, but pointed out that the state legislature was not legis-
lating when it attempted to take over operation of the New Orleans
schools. Rather, it said, that body was acting as an administrative
organ, and as such was subject to injunction when it acted in an uncon-
stitutional manner.
110Ibid., p. 1010.
"hbid.
-198-
were subordinate. Thus, the judges said, the Supreme Court was the final
arbiter of constitutionality and the state's proceedings were subject to
its review. States could not review the proceedings of that court, and
Louisiana could not deny the impact of the Brown case. Further, since
appeal from lower federal court decisions could only be ultimately had
in the Supreme Court, the states could not review decisions on consti-
tutionality in the lower federal courts. Interposition in general and
the Louisiana Interposition Resolution in particular were therefore not
1 ] p
constitutional and were void and without effect.
The other legislation of the first extra session, stripped of any
possible protection by virtue of Interposition, fell of its own weight,
the Court argued. Acts 10 through 14 were almost verbatim reenactments,
the minor changes being stylistic, of statutes previously declared un-
constitutional. Acts 16, 20 through 24, and 26 and 27 constituted an
interlocking series of laws designed to prevent the successful operation
of any desegregated schools in Louisiana and were also therefore uncon-
stitutional. Acts 17, 18, and 25 were designed to abolish the Orleans
Parish School Board and address out of office the members of the Board.
The design here was plain, and that design was to prevent desegregation
and thereby deprive black citizens of their constitutional rights.
Claims that these measures pertained only to administrative matters
within the state did not suffice, for acting in a constitutional manner
1 1 •}
to accomplish an unconstitutional end was in itself unconstitutional.
Finally, in response to a motion by the Board to postpone the
effective date of desegregation due to the turbulent local conditions,
112Ibid., pp. 1010-13.
113Ibid., pp. 1013-15.
-199-
the court made it clear that the violence and disorder that the Governor
and the Legislature had encouraged by their statements and actions would
not be allowed to further postpone desegregation. "Thus law and order
are not here to be preserved by depriving the Negro children of the con-
1 14
stitutional rights." Therefore, the state officials previously named
were restrained from enforcing the unconstitutional statutes.
Predictably, the Louisiana Legislature did not take its chastize-
ment quietly. On December 3, 1960, it enacted a resolution condemning
as dangerous the three-judge district court opinion and reaffirming that
Interposition was the public policy of Louisiana. On the same day, the
Legislature also reenacted previously repealed statutes creating the
Orleans Parish School Board, and set up a program of tuition grants for
lie
children attending non-profit private non-sectarian schools. On the
next day, the newly created Orleans Parish School Board was given the
power to borrow, receive and disburse funds for the operation of the
schools, and the banks holding the funds belonging to the "old" Board
were ordered to release them to the "new" one regardless of any federal
court orders.
The general disorder connected with the desegregation crisis
finally began to have an effect on the well being of New Orleans. By
the first week of December, a near-Depression level slump was taking
place in downtown New Orleans. The retail shops which catered to
114
Ibid. , p. 1016. The holding was affirmed by the Supreme Court
on December 12, 1960. Citation earlier provided.
115HCR 26 and Acts 2 and 3, 2nd Ex.Sess. 1960, respectively.
116HCR 27 and 28, 2nd Ex.Sess. 1960.
-200-
tourists and hotels and restaurants were experiencing their worst times
in almost thirty years. This economic slump produced some activity
on behalf of the School Board. While there were no white children in
school at McDonogh No. 19, twenty-three white children attended classes
at William Frantz school, and an organization designed to break the white
boycott, Save Our Schools, Inc., began to operate under the leadership
of Mrs. N.H. Sand. However, those parents and their supporters who
broke the boycott were subject to harassment, and a few lost their
jobs.
An additional difficulty facing the New Orleans schools was a real
financial crisis. Under the direction of the Legislature and in viola-
tion of federal court orders, the banks had virtually frozen the funds
of the School Board. The teachers at the two desegregated school, and
most of the 1300 non-teaching employees of the school district had not
1 20
been paid since October 28, 1960. Thus, even though the moderates
were beginning to support the School Board against the Legislature, there
was a real possibility that the schools would be forced to close due to
lack of funds.
The Louisiana Legislature continued its second extra session, pro-
ducing more grist for the legal mill. Support was restated for the idea
of separate but equal schools, but the Legislature assured its black
citizens that this represented no animus toward them. The lawmakers
New York Times, December 6, 1960, p. 1, col. 2.
118Ibid., December 7, 1960, p. 26, col. 3.
119
Inger, Pol i tics and Reality, pp. 56-57.
120
New York Times, December 8, 1960, p. 28, col. 1.
-201-
also declared their intention to pay school employees, including teachers,
who refused to participate in integration and not to pay those who
121
did. They also limited the powers of the Orleans Parish School
Board by repealing legislation empowering it to hire its own attorney,
and made it a misdemeanor to obstruct any Louisiana court order or
122
judicial process. The capstone of the new legislation was the statute
passed on December 15, 1960, which authorized the sale of the schools
1 93
when the schools had been indefinitely closed under state law.
The antics of the Governor and the Legislature, and, more impor-
tantly, the economic crisis in New Orleans finally brought some tangible
response from the leadership of the community. One hundred of the major
business leaders issued a statement calling for law and order and obe-
124
dience to federal court orders. The businessmen could hardly have
enjoyed the image of New Orleans that was being portrayed in the national
media. The situation had gotten so bad that as the next payday for the
school system approached, offers of financial aid from private citizens
were announced. For example, Ellen Steinberg, the daughter of a St.
Louis investment broker, offered a half-million dollars to help keep
1 25
the public schools open.
Its financial difficulties forced the School Board back to the
district court to seek the release of funds the New Orleans banks were
121HCR 29 and 34, 2nd Ex.Sess. 1960.
122Acts 5 and 6, 2nd Ex.Sess. 1960.
123Act 7, 2nd Ex.Sess. 1960.
1 24
New York Times, December 14, 1960, p. 28, col. 3.
125Ibid., December 18, 1960, p. 1, col. 3.
-202-
withholding under Louisiana statute. Additionally, the city of New
Orleans was withholding tax revenues which in normal course would have
been handed over to the Board for operation of the schools. The Board
also sought the release of these funds.
Once more the three-judge district court consisting of Rives,
Chn'stenberry, and Wright, had to restate the obvious. By their decision
of December 21, 1960, the judges held all statutes which "directly or
indirectly" required segregation of the races in public schools uncon-
stitutional; enjoined the state from enforcing those laws; enjoined the
banks from refusing to honor checks drawn on the Board's account; and
1 ?fi
directed the city to turn over taxes collected for the schools. A
few days later, most of the employees and the teachers at the integrated
1 71
schools received their first paychecks in almost two months. Thus,
1960 closed for the New Orleans schools on an uncertain but hopeful note.
In the early months of 1961, developments in the Bush case con-
tinued apace. The growth of moderate opinion in New Orleans was evi-
denced by the same 100 businessmen who had earlier issued the law and
order statement. They took out an ad in the New Orleans Times-Picayune
1 28
in support of keeping the schools open. However, the boycott of
white parents remained in effect, and those few who broke the boycott
continued to be subject to threats and intimidation.* Federal marshals
Orleans Parish School Board v. Bush, 190 F.Supp. 861, 5 RRLR
1023 (E.D. La. 1960).
127
New York Times, December 24, 1960, p. 9, col. 2.
1 28
Inger, Pol itics and Reality, pp. 62-63.
*The nature of the pressure against white parents who dared to take
their children to integrated schools can be seen in the case of John N.
Thompson. His nine-year old son, Gregory, was the first white student
to attend McDonogh No. 19 with the three black girls on January 28,
-203-
1 29
were still required to escort the black children to school each day.
The Louisiana Legislature continued to be active. It once again removed
the Orleans Parish School Superintendent, James F. Redmond, from office
and declared him an usurper in office. This subjected Redmond to a new
1 30
law making usurpation in office a misdemeanor. During the fifth con-
secutive special session, Governor Davis proposed and the Legislature
passed a law allowing local option elections to close public schools if
1 31
they were ordered integrated. As a result of this and the earlier
actions of Louisiana officials in contravention of federal court orders,
the federal government pursued a contempt action against those officials,
the primary goal of which was to obtain the release of some $350,000 in
federal funds earmarked for the New Orleans schools. Only as a result
of week-long negotiations between Attorney General Kennedy and Louisiana
1961. A few days later his eight-year old brother, Michael, joined him.
Thompson, who was an assistant counter manager at a Walgreen's in New
Orleans, lost his job the same day Gregory went to school. The next
day his job was restored, company officials maintaining that the earlier
firing had been an unfortunate error. Two days later, the Thompsons
were told by their landlord to vacate their residence within a week,
because thirty-five of New Orleans' citizens had harassed Gregory on
his way to school. On February 2, 1961, the Thompson family left New
Orleans for good. New York Times, January 28, 1961, p. 16, col. 3;
January 29, 1961, p. 69, col. 5; January 31, 1961, p. 14, col. 4; Feb-
ruary 1, 1961, p. 39, col. 3; February 2, 1961, p. 17, col. 4.
129
New York Times, January 15, 1961, p. 75, col. 1.
1 30
Ibid. , January 13, 1961, p. 32, col. 5. Less than two months
later, on March 1, Redmond resigned. Ibid. , March 1, 1961, p. 20,
col. 1.
131 Ibid., February 16, 1961, p. 23, col. 6 and February 21, 1961,
p. 39, col. 1.
-204-
leaders were the funds released to pay New Orleans teachers, eliminating
1 32
the need for further prosecution of the contempt action.
The U.S. Attorney in New Orleans, M. Hepburn Many, a Republican who
had agreed to continue in office at the request of the Kennedy Administra-
tion,* then sought an injunction to prevent the enforcement of Louisiana
enactments which attempted to remove the School Board's attorney and the
entire Orleans Parish School Board and to address the Orleans Parish
1 33
Superintendent of Schools out of office. On March 3, 1961, a three-
judge court again composed of Circuit Judge Rives and District Judges
Christenberry and Wright granted the temporary restraining order sought.
The judges were blunt in berating the Legislature for its continual
violation of the orders of the court. They said:
Certainly Louisiana's legislators cannot seriously
have expected us to condone new devices for re-estab-
lishing an unjust racial discrimination which the
highest court in the land has repeatedly condemned
as unconstitutional. On the other hand, we are re-
luctant to assume that this is defiance merely for
the sake of defiance, for it is unthinkable that,
without even the excuse of possible success, a state
would deliberately expose its citizenry to the un-
seemly spectacle of lawgivers, sworn to uphold the
law, openly flouting the law. 135
132Ibid., February 17, 1961, p. 1, col. 2 and February 25, 1961,
p. 6, col. 3.
*It should be recalled that the United States had entered the case
earlier as amicus curiae.
1 33
Act 5, 2nd Ex.Sess. 1960, Act 4, 3rd Ex.Sess. 1960, and SRC 7,
3rd Ex.Sess. 1960, respectively.
134
Bush v. Orleans Parish School Board, 191 F.Supp. 871, 6 RRLR 74
(E.D. La. 1961).
135
•"ibid., p. 76.
-205-
In answer to legislators' argument that only a reshuffling of school
personnel was involved and that the new appointees would obey all federal
court orders, the court maintained that this legislation had to be viewed
in the context of the extended history of the litigation. That history
was one of "delay, evasion, obstruction, defiance, and reprisal," the
judges remarked. Further, the current circumstances also condemned the
legislation, for making such trivialities the subject of special session
legislation indicated there was more to the statutes than mere personnel
shifts. "The pattern is obvious," said the court, for wresting control
from the current school board indicates that the "ultimate goal remains
to block desegregation of the public schools and frustrate the enjoyment
137
of constitutional rights." The court would not allow this to happen
and granted the requested restraining order.*
Two months later the U.S. Attorney was back before the same three-
judge court seeking to enjoin two statutes produced by the second extra
session of the 1961 Legislature. These laws established criminal
penalties for giving or accepting any inducement to send school children
to integrated schools, and similar penalties were provided for offering
to do or doing any act to induce such school attendance. On May 4, 1961,
the court granted an injunction against the enforcement of those laws.
T36T. . ,
Ibid.
137
'ibid., p. 77.
*The decision was affirmed by the Supreme Court in a two line opinion
which stated that Louisiana's arguments were "without substance" and the
unconstitutionality of the laws was not "a matter of doubt." Denny v.
Bush, 81 S.Ct. 1917, 367 U.S. 908 (1961).
Acts 3 and 5, 2nd Ex.Sess. 1961.
1 39
Bush v. Orleans Parish School Board, 194 F.Supp. 182, 6 RRLR 413
(E.D. La. 1961).
-206-
The court admitted that equity rarely restrained the enforcement of
criminal statutes, but these laws were not ordinary criminal laws. They
were instead emergency enactments designed to prevent desegregation by
threatening jail for parents who dealt with integrated schools, and the
effect on and the threat to the rights of parents was immediate. The
statutes were clearly unconstitutional, and a temporary injunction was
therefore appropriate relief.
These actions concluded the crisis phase of the desegregation con-
test in New Orleans. The remainder of 1961 saw a general resolution of
community attitudes which led to the relatively peaceful reopening of the
public schools in September of 1961. Serious legal questions remained,
but they were not decided in an atmosphere of violence and tension. More
importantly, active interference by the Governor and the Legislature
ended, as people in New Orleans began to take the initiative. Solid
community backing for the School Board was created by civic leaders and
the attitude of the new municipal administration of Mayer Vincent H.
Schiro, Jr., who replaced Morrison in July of 1961.
First, all four of the black girls who integrated the New Orleans
schools were promoted to the second grade, and over sixty more black
students applied for transfer to formerly white schools. About ten
days later, over 1600 of New Orleans' elite attended a testimonial dinner
in honor of the four moderate School Board members. This meeting finally
established community support for the public schools even if they were
140
Ibid. , pp. 414-16. This decision was also affirmed by the
Supreme Court. Gremillion v. U.S., 82 S.Ct. 119, 368 U.S. 11 (19611
141
New York Times, June 20, 1961, p. 30, col. 6.
-207-
142
subject to some integration. In August, a large contingent of these
business and civic leaders again ran an ad in the Times-Picayune. This
time it specifically called for peaceful desegregation.
For the 1961 school year, the School Board made a careful, politi-
cally sound choice of four new schools to be desegregated, rather than
the "educationally scientific" choice of working class neighborhoods that
had been made the year before. These schools were in or near areas of
"substantial" citizens who were typical of the growing moderate segment
of New Orleans opinion. Hope for the new school year was also high
because the Louisiana Legislature was not in session.
When school opened on September 7, although only eight more black
pupils entered the first grade and the white boycott was still very
effective, there were no demonstrations or violence. Through 1961,
the situation in the schools changed slowly, for opposition to integra-
tion continued. There were, after all, only twelve black students
attending school with whites and only six schools with token integration.
In 1962, the pace of desegregation quickened as the Roman Catholic
Archbishop, Joseph Rummel, finally ordered all of the parochial schools
desegregated. By the beginning of the new school year, 104 blacks had
integrated twenty public schools in New Orleans, and more white
students returned to integrated schools.
142
Inger, Politics and Reality, pp. 64-65.
Ibid. , p. 67.
144
New York Times, August 20, 1961, p. 1, col. 2.
145
Ibid., September 8, 1961, p. 19, col. 1.
146
lbjd_. , April 2, 1962, p. 1, col. 3, and September 7, 1962, p. 30,
col . 5.
-208-
Mopping Up: 1961-
The period covered by this study ended well before the following
legal action, but a brief review of its content and impact provide a
necessary conclusion to the New Orleans desegregation story. The num-
bers of black students attending integrated schools showed that the pace
of desegregation in New Orleans was very slow. As a result, the plain-
tiffs petitioned for further relief in the district court, also com-
plaining that black schools were unconscionably overcrowded and poorly
equipped. In his last decision in this case,* Judge Wright held that the
operation of the Orleans Parish schools was still discriminatory.147
Judge Wright argued that Orleans Parish still maintained a dual
school system, under which pupils were assigned to schools according to
race. If transfer to a school maintained for the other race was desired,
the student was given a test, and assignment was then made according to
Louisiana's Pupil Placement law. Application of this placement procedure
to a dual school system could not be allowed, the judge ruled, but the
real constitutional vice was the School Board's failure to test all
pupils rather than just those who sought transfer. To alleviate the
overcrowding in the black schools, to correct the placement system, and
to finally vindicate the rights of the black plaintiffs, he ordered that
beginning in September of 1962, the first six grades of the New Orleans
*0n December 15, 1961, Judge Wright was named to the District of
Columbia Court of Appeals. He had been in line for a vacancy on the
Fifth Circuit Court, but that nomination was blocked by Senator Russell
Long of Louisiana. Ibid., December 16, 1961, p. 18, col. 6.
147
Bush v. Orleans Parish School Board, 204 F.Supp. 568, 7 RRLR 19
(E.D. La. 1962).
-209-
1 48
schools had to be integrated. Children in those grades would attend
the schools nearest their homes without regard to race. As long as a
dual system was maintained, the Pupil Placement Act could not be applied
to any student in the dual system.
Judge Wright's ruling momentarily rekindled the crisis atmosphere.
The almost universal reaction in New Orleans was unfavorable. The
School Board voted five to zero to appeal the order, but also planned
to wait for Judge Wright's successor, Frank Ellis, a former Director of
1 ao
the National Office of Emergency Planning, to take the bench.
When Ellis took Wright's place, the School Board immediately asked
for a new trial. It contended that the expanded desegregation order was
based on erroneous findings that facilities for black students were not
equal to those provided for white, that the Board had not made a prompt
and reasonable start to desegregation, and that the Pupil Placement Act
was not applicable. Ellis rejected all of the Board's contentions.150
However, he also ruled that a May, 1962, Board Resolution to comply with
the orders of the court combined with the order he had drafted represented
an active plan of desegregation that would "adequately protect plain-
tiffs' rights as well as the aspirations for order sought by all reason-
151
able men." Therefore, Ellis withdrew Wright's order, reestablished
a grade-a-year plan, abolished the dual system on a similar grade-a-year
148
Ibid., pp. 20-21.
149
New York Times, April 7, 1962, p. 12, col. 1, and April 10, 1962,
p. 29, col. 3.
150
Bush v. Orleans Parish School Board, 205 F.Supp. 893, 7 RRLR 349
(E.D. La. 1962).
151Jb2d. , p. 354.
-210-
basis, and limited the applicability of the Placement Act only to pupils
where the dual system had been eliminated.
Both parties appealed from Ellis' ruling to the Court of Appeals.
The plaintiffs objected to the withdrawal of Judge Wright's six-grade
desegregation order, and the Board objected to the limitation on the use
of the Pupil Placement Act. Judge Wisdom wrote the opinion for himself
153
and Judges Rives and Brown. The Court, in effect, gave something to
both parties. The desegregation plan was slightly expanded to provide
some desegregation for second and third graders in 1962-1963 by allowing
them to transfer limited only by "administrative feasibility," but the
essential grade-a-year nature of the program was retained. The Pupil
Placement Act was held to be applicable to all students as long as it
was used in a nondiscriminatory fashion, even though part of the system
was still operated on a dual basis. The determining test for such use
would be the good faith of the Board.155 Finally, the dual system of
separate districts for each race would be abolished for the first five
grades by 1964 and thereafter on a grade-a-year basis.
The School Board thereupon produced a "Transitory" and a "Long-
Range Desegregation Plan" for the schools. The plan differed from the
Court of Appeals order in that the Transitory Plan maintained the same
152... ,
Ibid.
153
Bush v. Orleans Parish School Board, 308 F.2d 491, 7 RRLR 693
(5th Cir. 1962).
1 54
^ I b i d . , p. 702.
155Ibid., pp. 699-701.
156
l3DIbid., p. 703.
-211-
attendance districts as had previously existed, but three schools had
their designation changed from white to Negro in order to alleviate
overcrowding. The Long-Range Plan called for grade-a-year desegregation
157
and redisricting. Armed with these plans, the Board sought a re-
hearing to obtain modification of the Court of Appeals judgment. Judge
Wisdom again wrote the opinion for the Court, holding that the
Transitory Plan was in accordance with the spirit of his previous
opinion. A conference with attorneys for both sides produced agreement,
and the Court approved the Transitory Plan. Decision on the Long-Range
Plan was held in abeyance pending further study by the Court and the
1 59
plaintiffs' attorneys. On September 1, 1962, pursuant to Wisdom's
ruling, Judge Ellis granted his approval of the Transitory Plan as the
desegregation plan for the school year 1962-1963. 160 The Orleans Parish
schools were finally to run under a plan agreed to by both parties and
the federal courts.
Finally, on May 18, 1963, over several objections raised by the
plaintiffs, Judge Ellis approved the Board's Long-Range Plan. In
157Ibid., pp. 704-06.
158Ibid., p. 706.
*Ibid., p. 707.
160Ibid., p. 708.
Bush v. Orleans Parish School Board, 230 F.Supp. 509, 8 RRLR
532 (E.D. La. 1963). Plaintiffs' objections included complaints that:
1) More delay in complete desegregation was unnecessary; 2) conversion
to single zone attendance districts was not to be made rapidly enough;
3) no provisions were made for lateral transfer for children above the
first two grades; 4) there was no protection against discrimination in
assignment of pupils; 5) no relief was provided for overcrowding in black
schools; 6) no desegregation was provided for kindergartens; 7) no pro-
vision was made for non-racial admission to schools for exceptional
children; 8) no provision was made for non-racial admission to trade
-212-
response to these objections, Ellis said that since the matters com-
plained of could now be handled administratively and continuing super-
vision by the federal courts would protect against renewed discrimina-
tion, it would be premature to rule on them. The plaintiffs always had
available to them recourse to the federal courts in the form of petitions
for further relief. With the exception of two hearings related to
kindergarten attendance, Judge Ellis' summation reflected the new
environment of peaceful--if slow--progress:
As the length of the hearing and these findings
indicate, the epic struggles are over. Now the
Court and the Parties must solve the knotty adminis-
trative problems. . . . Generally, so long as the
Board indicates good faith and honesty in the
administration of its plans, the Court will leave
the public school system to those who know it best.l6^
While full and meaningful desegregation for New Orleans' schools would
not be realized until a complete reorientation of the law and the temper
of the community occurred in the late 1960's and early 1970' s, the
essential legal battle for school desegregation had been won.
Conclusion
The essence of the desegregation controversy in New Orleans was
conflict between the federal courts and the state of Louisiana. New
and night schools; 9) no provision was made for non-racial assignment of
teachers; 10) no provision was made for building schools without regard
to race; and 11) districts could be changed by the Board without safe-
guards against discrimination. 230 F.Supp. 511.
Bush v. Orleans Parish School Board, 9 RRLR 667 and 1747 (E.D.
La. 1964).
1 cry
Bush v. Orleans Parish, 230 F.Supp. 517.
-213-
Orleans was a test of endurance for federal judicial authority and in
no small measure for the black plaintiffs and their supporters. The
struggle lasted well over a decade during which the district court and
its judges consistently faced and overcame vehement state opposition.
These efforts were strengthened by the legal and moral support of the
Court of Appeals. The judges involved in the New Orleans case, with the
sole exception of Judge Cameron, were unmoved by the vigorous opposition
to their orders. The refusal of the judges to bow to adverse public
opinion was particularly noteworthy, for all but Judges Brown, Tuttle,
and Jones were lifelong Southerners, and Wright and Wisdom were natives
and residents of New Orleans. Through the efforts of these men, the city
of New Orleans and the state of Louisiana were educated in their respon-
sibility of obedience to federal law. In the following few chapters,
examination in more detail will be provided into the nature of the Court
of Appeals Judges who helped launch what was essentially a peaceful
social revolution in Southern education.
CHAPTER VII
THE JUDGES (2):
JOHN MINOR WISDOM AND JOSEPH C. HUTCHESON, JR.*
We are often told in the social sciences that what a man is can tell
us a great deal about what he thinks. If we know where someone was born,
raised, and educated, the social and economic position of his family, and
other such factors, the political, social, and even moral attitudes of
the individual should be predictable. By placing men in certain cate-
gories we often feel we are explaining them. This tendency is reinforced
by its usefulness as a tool for organizing the historian's raw data.
Categorization seems to give order and meaning, as it provides a familiar
landscape in which to analyze people's actions. This process has par-
ticular force when the subject of discussion is an emotional one, such
as the subject of this study, racial integration of the public schools.
The seven judges of the U.S. Court of Appeals for the Fifth Circuit
who will be discussed, John R. Brown, Benjamin F. Cameron, Joseph C.
Hutcheson, Warren L. Jones, Richard Taylor Rives, Elbert Parr Tuttle,
and John Minor Wisdom, could be categorized in many different ways. For
the most part, however, these classifications reveal little about how
they perceived desegregation, their role in its enforcement, and their
performance in the crucial years after the Brown decisions.
In that period, it was the South which was most involved in the
struggle. Four of the judges, Cameron, Hutcheson, Rives, and Wisdom,
Moseph C. Hutcheson, Jr., 1879-1973. Appointed to Fifth Circuit
1931, served to 1968. John Minor Wisdom, 1905-. Apoointed to Fifth
Circuit 1957.
-214-
-215-
were born, reared, and educated in the states of the Confederacy, there-
fore their attitudes and performance should have been predictable.
However, though three of the four did not seem to be sympathetic to the
idea of school integration, only one of them actually adopted a negative
stance toward enforcement of the Brown decision. The fourth Southerner
proved himself to be one of the most forceful and influential advocates
of judicially enforced social change. The three judges who did not
arrive in the South until their adulthood presumably did not share the
traditional Southern view of relations between the races, but one of
their number was almost totally inactive in the enforcement of national
policy.*
Trying to classify the judges based upon their political affiliation
proves to be of little value as well. It is an anomoly that five of
these seven judges, serving on a Southern Court, were Republicans. Only
Hutcheson and Rives were Democrats. While it is a very broad generaliza-
tion, one might expect to find Republicans taking a more conservative
stance on matters of judicial activism and school integration. It could
be argued, of course, that in the 1940's and 1950's, Democrats in the
South were more likely to be conservative and Republicans, more liberal.
This would seem particularly so in this case, for all five of the Republi-
can judges were appointed by and had supported President Eisenhower, who
represented the more liberal wing of the Party. This indicator also
fails, however, for two of the Republicans were quite conservative and
*It should also be kept in mind that these non-Southerners were
brought up in an era when the idea of integration was not widely accepted.
Tuttle and Jones were both in their early 60's and Brown was near 50
during the period covered by this study.
-216-
one of them was actively opposed to the enforcement of Brown. Further,
while both Democrats were traditionalists of the Old South, one of them
came to defy the traditions of his community.
There are other characteristics such as interest in academic scholar-
ship, variety of training and educational experience, and degree of par-
ticipation in politics and public office which might be used to separate
these seven men into different categories, but all fail as meaningful
predictors of judicial action or attitude. It is possible, however, to
divide the judges into the general categories of liberal and conserva-
tive, as those terms are understood today. This division, the only one
which seems to have any validity, is based upon their observed behavior
in the desegregation controversy and their view of the judicial role as
revealed through their own comments and the opinions of others.
It is difficult, of course, to measure such imprecise terms as
liberal and conservative. The difficulty is further compounded by the
fact that many different issues and attitudes will be discussed. Using
this distinction to organize the discussion of the seven men might be
artificial and introduce distortion, but awareness of that possibility
offers some protection against it. As must be obvious by now, in the
opinion of this writer, the judges are beyond categorization. They are,
if nothing else, supremely individual. Therefore, for purposes of in-
terest, analysis, and frankly convenience, the following comparative
method seems most profitable. This chapter will cover two Southern-born
judges, John Minor Wisdom and Joseph C. Hutcheson. Both were scholars
and enormously influential and well-known judges. Wisdom and Hutcheson,
however, took divergent paths in the desegregation struggle. The next
chapter will deal with Richard Taylor Rives and Benjamin F. Cameron. Both
-217-
of these men were deeply Southern in background and attitude and tradi-
tional in their judicial approach, but one was the prisoner of his past,
while the other became synonomous with the words courage and character.
The last chapter will examine the three non-Southern judges, John R.
Brown, Warren L. Jones, and Elbert Parr Tuttle. Two of the three were
vigorous judicial activists, who attempted to devise remedies to give
reality to the rights confirmed by Brown, while the third remained a
passive, strict authority advocate, who was representative of the attitude
of most Appeals judges.
A final word in introduction before beginning the study of the seven
judges. The Fifth Circuit Court of Appeals was involved in one of the
most troubling and difficult issues in our nation's experience. That it
more than met its responsibility, took leadership in hammering out the
means whereby Brown would be enforced, and oversaw a largely bloodless
social revolution in the South, was really a matter of serendipity. In
the 1950' s, that Court and the country was served by a fortunate conclave
of giants. In one way or another, five of the judges were great men and
judges. A sixth judge was a tragic figure, reminding one of the pro-
tagonists of the classic Greek drama. The seventh judge, solid, compe-
tent, and workmanlike, seemed a small and pale figure only in comparison.
As Dean Frank Read of the University of Tulsa School of Law, an outstand-
ing authority on the desegregation and civil rights litigation in the
Fifth Circuit, has said, "No other court in the country could have done
what they [the Court of Appeals for the Fifth Circuit] did. It was
unique."
Frank T. Read, private interview in Tulsa, Oklahoma, September 7,
1977.
-218-
John Minor Wisdom and Joseph C. Hutcheson, Jr., were born twenty-six
years apart, but they shared some judicial values in common. Both
scholarly men, they represented the best in two different generations
of judging. In their view the law was a dynamic and living force.
Wisdom and Hutcheson expressed their attitudes in very different ways,
but the quality and erudition of their decisions and their devotion to
a concept of justice unite them as judges.
Both judges had deep roots in the South. Hutcheson's father,
Joseph, served as a captain in the Confederate Army and moved from Virginia
to Houston, Texas, immediately after the Civil War. He became one of the
leading attorneys in the community and served two terms in the U.S. House
of Representatives. Hutcheson senior was so much a part of the South
that he continued to be known as Captain Hutcheson, even during and after
2
his days in Congress. Judge Wisdom's father, who operated a successful
insurance firm in New Orleans, was a student at Washington College in
Virginia while Robert E. Lee was its president, and came to know him
well. Judge Wisdom and his two brothers, Norton, an attorney, and William
B., an advertising executive, followed their father's example and attended
the renamed Washington and Lee.
2
Leon Jaworski, "A Lifetime of Judicial Service: Joseph C. Hutche-
son, Jr.," 24 Texas Bar Jour. 1107 (December, 1961).
3
John Minor Wisdom, private interview in New Orleans, Louisiana,
July 29, 1977. All subsequent references in the discussion of the judges,
except where noted, will be to personal interviews with the judges, or
in the cases of Cameron and Hutcheson, both of whom are deceased, with
those interviewed in their stead. Some references will not be attributed
and will be styled "Confidential communication," following the practice
used by T. Harry Williams in Huey Long (New York: Alfred A. Knopf, 1969).
Most of that information is on tape and will be held in strict confidence
for an appropriate period of time. Repeated citation of interviews,
except where necessary will not be made.
-219-
Hutcheson and Wisdom seem to have had normal and happy youths, both
being active and vigorous young men. Wisdom was an athlete. He was the
city doubles champion in tennis and quarterback of a sandlot football
team, but found time to become an eagle scout and embark on a life-long
career of voracious reading in history and literature. Hutcheson's
mother died when he was quite young, and he was greatly influenced by
5
his father. He developed a reverential love for his father which re-
peatedly manifested itself in his later life.
Judge Hutcheson's education was fairly typical for an upper class
Southerner of the late 1800's. His "academic training" at the Bethel
Military Academy in Virginia and the University of Virginia must have
included a good deal of work in the classics of literature and the Bible,
for his subsequent decisions, writings, and lectures were replete with
such allusions. At the age of twenty-one, in 1900, Hutcheson graduated
as valedictorian of the University of Texas Law School and immediately
joined his father in law practice in Houston. He never considered any
other career.
Hutcheson practiced law with his father's firm from his graduation
from law school in 1900 until 1918. During that period, he absorbed the
traditions of the law from his father and a legal practice in an almost
4
Judge Wisdom in his early years displayed a firm grasp of priorities.
Not large in physical stature, he broke his jaw in a game and decided to
forego a "promising" football career. Wisdom interview.
5
"Joseph C. Hutcheson, Jr.," 13 Texas Bar Jour. 50 (1950).
Dean Allen E. Smith, University of Missouri College of Law and the
first law clerk employed by Hutcheson, private interview in Columbia,
Missouri , August 15, 1977.
13 Texas Bar Jour. 50.
-220-
frontier setting. He was a different breed of Texas lawyer in those days,
however, for his legal training and classical education set him apart
from most of his colleagues. He acquired a deserved reputation as a
legal scholar at a time when many of the members of the Texas Bar were
practicing law on the basis of Texas statutes, Blackstone, and personal
connections. In his later years, Hutcheson often told a story about a
revered member of the Texas Bar who had come to him for help. The
lawyer had said: "Joe, I have got a wonderful lawsuit, and I need your
help. You know, Joe, I am hell with the jury (and he was), but the law
o
is a lion in my path. "
From 1913 to 1917, Hutcheson served as the chief legal advisor to
the city of Houston. He moved up to Mayor in 1917, but the next year,
Woodrow Wilson appointed him as the federal District Judge for the
Southern District of Texas. He served on that bench for over twelve
years, until 1931 when Herbert Hoover elevated him to the Court of Appeals
for the Fifth Circuit. It was one of Hutcheson's great prides that he,
an avowed Democrat, had been selected for the Appeals bench by a Republi-
can President.
Hutcheson's record on the District Court had been impressive, for,
as the only judge in the busiest District in the country, he had managed
to keep his docket current, write over 200 opinions, and serve one month
q
each summer in the Southern District of New York. He became known for
Joseph C. Hutcheson, Jr., "We Be of One Blood, You and I, of One
Law, One Faith, One Baptism," 20 Miss. L.J. 284 (No. 3, May, 1949).
Address at the annual dinner of the Southern Law Review Conference at
the University of Mississippi on March 26, 1949.
9
Jaworski, "Lifetime of Judicial Service," p. 1108.
-221-
his mastery of the principles of law and equity, his capacity for work,
his accuracy in judgments, and the strength and style of his opinions.
He was rarely reversed. He ran his court with strict discipline and
was called a "martinet" by some: "No smoking, no noise, no reading--a
dignity you could almost cut with a knife." He was also, however, a
champion of individual rights, of whom it was said that violating his
ideas of right and wrong, of fairness and justice, was like "monkeying
with a naked bolt of lightening." He viewed himself as a Jeffersonian
liberal, dedicated to the preservation of the dignity and value of the
individual against the machinations of authority.
Judge Wisdom's path to the law was not as direct. At Washington and
Lee, he took every Literature course that was offered, but still managed
to complete his degree in three years. Hoping to become a critic, he
went to Harvard for graduate work in English. His roommate was a young
law student, and this contact with legal studies turned Wisdom to the
law. Most Louisiana attorneys considered it essential to get their
training in Louisiana, where the legal tradition was based on the French
Civil Law rather than the English Common Law, so Wisdom returned home
to attend Tulane. Wisdom felt that Tulane in those days was rather weak,
and he remained interested in the law only through the efforts of in-
dividual teachers such as Rufus Harris and his fascination with classes
in Torts and Conflicts of Law, which he said dealt in "challenging and
metaphysical concepts." To make up for what he felt were deficiencies
in his legal training, Wisdom engaged in extensive reading in the law,
Walter P. Armstrong, "Joseph C. Hutcheson, Jr.: Chief Judge,
Fifth Circuit Court of Appeals," 35 ABA Jour. 547 (1949).
"ibid., 548.
-222-
a practice he continues to this day to familiarize himself with new sub-
ject matter.
While Judge Hutcheson had a place waiting for him when he finished
law school, Judge Wisdom had to make his way on his own. Wisdom began
practice in 1929 in partnership with a close friend, Sol Stone.* Times
were so bad, however, that Wisdom and Stone were forced to take outside
jobs with Monroe and Lemann and Phelps and Dunbar, the only firms at the
time in New Orleans that paid young lawyers as associates. Eventually,
Wisdom and Stone made a go of their own firm, handling every variety of
case except criminal matters, and Wisdom became one of the leading attor-
neys in New Orleans. One of his early triumphs was a price fixing case
against Calvert and Seagrams distillers. The subject was fairly important,
for as Wisdom put it, "Fixing prices on liquor, well that's a sore sub-
ject in New Orleans. Fixing prices is worse than fixing prices on milk
1 2
in other places." Wisdom remained in private practice until President
Eisenhower named him to the Court of Appeals in 1957, in recognition of
his service to the GOP.
Judge Wisdom's appointment to the Court of Appeals, after a dis-
tinguished career as a Mew Orleans attorney was no surprise. Even though
he had established a reputation for skill and erudition,** Wisdom was
♦Originally known as Wisdom and Stone, it eventually became Wisdom,
Stone, Pigman, and Benjamin. After Wisdom went on the bench, the name was
changed to Stone and Pigman, and it is known today as Stone, Pigman, Wal-
ther, Wittmann, and Wittmann. Wisdom said that the firm's standards were
always high, accepting new associates only from the class leaders at the
outstanding law schools. In the tradition of New Orleans legal practice,
it remained relatively small (twenty lawyers or less). Wisdom interview.
Ibid.
**From the mid-1930's on, Wisdom regularly taught law at Tulane, and
was on the faculty of the Appellate Judges Seminar at New York University.
He felt that teaching was good for a judge, because young law students
-223-
equally entitled to the seat as a legitimate political debt. He had been
a Republican since his college days, both because he was committed to the
two party system and his vigorous opposition to the Long machine.*
Wisdom was active in Republican politics. He moved on from being a
Harold Stassen organizer in 1948 to establishing the first Dewey-Warren
club in the country. In 1952, Wisdom was one of the leading Southern
campaigners for Eisenhower, and his handling of the delegate contest
between Taft's Louisiana delegation and Wisdom's Eisenhower group was one
of the turning points at the Chicago convention. Wisdom managed the
delegate contest as if it were a law suit, and was so successful that
1 ^
the Texas Eisenhower delegation adopted the same procedure.
were sharp, well-informed, and disinclined to accept pat answers. Wisdom
interview.
*Wisdom felt that Louisiana was still paying a price in political
corruption as a legacy from the Huey Long era.
1 3
John Wilds, "Judge Wisdom— GOP General," The States- Item, January
11, 1977, sec. B, p. 1. This article contains an account of Wisdom's
role in the 1952 election and the strategy of the Republican contest in
Louisiana. Wisdom was apparently one of the men who recommended Nixon as
Eisenhower's running mate, but after seeing the "Checkers" speech, re-
gretted his advice and tried to get Nixon removed. One of Wisdom's fond
memories was of a delegate battle in the Fifth Ward in New Orleans, which
included the French Quarter. There were a total of nine registered
Republicans in the ward, a fact Wisdom had verified by reference to the
official records. Four were for Taft and four were for Eisenhower. The
ninth, a wealthy dowager named Mrs. Schwartz, was wavering, but Wisdom
had won her over to the Eisenhower forces. The Taft people, who repre-
sented the party organization, were fairly certain Wisdom had been success-
ful, so they scheduled the caucus at the house of a black mid-wife in the
Quarter, hoping that this would dissuade Mrs. Schwartz from attending.
When to their consternation she in fact arrived and cast her vote for
Eisenhower, they dragged two strangers off the street and voted them for
Taft. Wisdom and his people then bolted the meeting, held a rump caucus
on the sidewalk, and selected Eisenhower. The next day he had Mrs.
Schwartz in his office, and she called her son. Her comment was "Bernard,
you just don't know what fun is until you've registered Republican."
-224-
During the general election, Wisdom was the Chariman of the Southern
Committee for Eisenhower (of which his future colleague Elbert Tuttle
was the Vice-Chairman) and also became the Republican National Committee-
man. After the GOP victory, Wisdom was offered many positions but turned
them all down.* He had committed himself to building Louisiana's Republi-
can organization, which had previously been kept small to control patron-
age when the GOP won national elections. He was still involved in this
when the first vacancy occurred on the Fifth Circuit Court of Appeals.
He therefore declined, and recommended his close friend from Georgia,
Elbert Parr Tuttle, who was given the seat. The next logical vacancy
occurred in 1957 when Wayne Borah, also from Louisiana, retired. Wisdom
now wanted the judgeship, for he enjoyed research and writing and had
always felt he could be a good judge. His loyal service and friendship
with Eisenhower and others in the administration such as Herbert Brownell
and William Rogers served him well. In 1957, Wisdom was appointed to the
14
Court of Appeals, as what the Judge believes was President Eisenhower's
personal choice.
Judges Wisdom and Hutcheson reacted to the Brown desegregation in
contrasting ways. Judge Hutcheson was a traditional, conservative Texas
Democrat. It would be unfair to call him a segregationist, but he was
*After Eisenhower's election, Wisdom did agree to serve on the Com-
mission on Government Contracts which dealt with enforcing anti-discri-
mination regulations.
14
Wisdom s appointment had to overcome the strong opposition of
Senator Eastland of Mississippi. In 1955, Wisdom had supported and aided
the appointment of Benjamin Cameron to the Court of Appeals. Cameron now
came to Wisdom's aid, for he passed along Wisdom's suggestion that Cameron
would be comfortable with Wisdom on the Court. With this assurance,
Eastland, who ran the Senate Judiciary Committee, dropped his objections.
The degree of the later disagreement between Cameron and Wisdom belied
Wisdom's assurance. Confidential communication.
-225-
hardly a social reformer. He was not happy with the Brown decision,
less for the immediate result than for what he believed would be done in
its name. He was not in sympathy with the idea of desegregation in
general and was particularly unhappy with the role the courts came to
play in what he thought was a social rather than a legal issue.15 He
believed in stability in law and the importance of the slow evoluation
of new legal concepts. Though stare decisis was a guide for rather than
a limitation upon judges, Hutcheson felt that Brown was too sharp a break
with the past. He was never recalcitrant or actively obstructed the
implementation of the Brown decisions, but avoiding that implementation
would have pleased him.
Notwithstanding his discomfort with what he viewed as Supreme Court
meddling with local affairs, Hutcheson obeyed his oath of office. He was
not often involved in hearing school cases, and almost never wrote
opinions on the subject, but he did not dissent from decisions which were
clearly called for by the Brown precedent. Hutcheson was past seventy-
five at the time of most of the desegregation decisions, and toward the
end of the period under discussion, he had suffered a stroke which
limited his activity. Thus, Judge Hutcheson played a limited role in
the desegregation controversy. It was probably fortunate that he was so
little involved, for he abhored the activist role the Court of Appeals
eventually took in the cases. Some who observed him, however, maintained
that after his illness, Hutcheson's attitude became more flexible.
15
Smith interview. Host of the material regarding Judge Hutcheson's
views on Brown and desegregation came from Dean Smith, the Judge's former
law clerk, but the general tenor of his comments was confirmed by other
sources.
Read interview.
-226-
John Minor Wisdom's reaction to the Supreme Court's desegregation
decision was quite different.* He was not at all surprised by the
holding in Brown, The Judge maintained that anyone with intelligence
could have seen integration in the schools coming, and that there were
numerous legal signposts leading to the inevitable result in Brown. At
first he did not like the step-by-step approach adopted by the Supreme
Court and felt the language "all deliberate speed" should never have been
used. In retropsect, however, Wisdom admitted that full integration in
1954 might have been impossible. With regard to the general issue,
Wisdom felt that "integration was inevitable in the long run and an
17 '
absolute must for this country."
Judge Wisdom was quite active in the school desegregation cases and
participated in all three discussed in this study. He consistently de-
cided in favor of the black plaintiffs, and as his experience with the
1 R
issue broadened, became more impatient with delaying tactics. Inter-
viewed in the later 7970' s, he had come to feel that the decisions during
the 1950' s and early 1960's had lost a good deal of their significance as
the Court of Appeals moved on to what became known as affirmative action.
In the earlier period, getting a first grade integrated, even on a token
basis, seemed like a major accomplishment, but since the mid-1960's,
such limited steps were clearly insufficient. Indeed, by 1966, Wisdom
*The Brown decision was coincidently announced on Judge Wisdom's
birthday, May 17.
Wisdom interview.
1 R
At least one source argued that Judge Wisdom did not start his
involvement with the desegregation cases as a fire-eating liberal, and
that his progressive views were slow to develop. Confidential communi-
cation.
-227-
authored a major decision applying Department of Health, Education and
Welfare guidelines as a legal standard and calling for integration, "lock,
19
stock, and barrel." Even in the earlier cases, Wisdom had displayed a
willingness to adapt and improvise procedures to enforce the Supreme
Court's mandate.
Wisdom's experience in the New Orleans case was instructive, for he
was a life-long resident of that city and steeped in its historical
traditions. The Judge never felt he had any problems dealing with the
attempts of the Louisiana Legislature to prevent integration. The legis-
lation, he argued, was made up of "gimmicks," even though they became
more sophisticated as the earlier laws were rejected. They all aimed at
maintaining segregation and were therefore "blatantly unconstitutional."
Wisdom felt the community pressures on him were minimal, although he and
his family were subjected to some abuse. Two of his dogs were poisoned,
some snakes were thrown into his yard, and middle-of-the-night treatening
calls were a regular occurrence. All of this, Wisdom maintained, was
"par for the course." The real problem the judges faced was not danger
to themselves or community disapproval, but the difficulty of obtaining
compliance in a South that passionately believed that integration was
judge-made and not required by the Constitution, making it difficult to
obtain compl iance.
An understanding of the attitudes of these two men can be gained
from examining their views of what Courts of Appeals do and of a judge's
life. Judge Hutcheson rarely spoke of the Courts of Appeals or of
19
United States v. Jefferson County Board of Education, 372 F.2d
836 (1966). This decision became the basis for subsequent national
desegregation policy. Even Judge Wisdom's language was adopted by the
Supreme Court.
-228-
"roles" that judges were called upon to fulfill. He seemed to reject any
notion of judges as social engineers. The judge had only one duty to
perform, and that was to decide the case before the court in the best
way possible. This did not include a formalized view of social respon-
sibility. Judges simply judged cases. In application, there was little
introspection involved, for Judge Hutcheson "saw his duty and he done
it."20
Hutcheson was one of the most prolific authors on the bench, and
when one examines his writing, an almost totally different portrait
emerges. Here we find a philosophical man, deeply interested in the
nature of law and how law grows and evolves. The contradiction may be
explained in part, if not resolved, by the fact that the source for his
philosophy, as well as his practice as a judge, was the great tradition
of the Common Law. Thus, for Hutcheson, "the law is not mere theory but
living force . . . the life of the law is a struggle, for the idea of
21
laws is an eternal becoming. ..." Hutcheson 's feeling for the law
as a changing instrument for justice was profound, for he believed the
essence of the Common L
of constant principles.
essence of the Common Law was flexibility and the changing application
22
20
Smith interview. Dean Smith felt this practical approach was what
Hutcheson really believed rather than the "theories" he expounded in his
writing. The latter, Smith thought, was just for show.
21
Joseph C. Hutcheson, Jr., Law and Liberty Reconciled: The
Principle of Our Free Society, the Spirit of its Laws (Journalism
Laboratory Press of Wahsington and Lee University, 1953), p. 57.
22
Joseph C. Hutcheson, Jr., "The Law Do Move," 7 A.L.S. Rev. 1044
(1933).
-229-
In Hutcheson's view, the connection between the judges and evolving
Common Law was intimate and personal. Just law had its seat in the
bosom of every judge who decided cases as nearly as possible to the
"ought to be" as established method would allow. Judging was adminis-
tering justice, and whether judges performed well depended on their
having an "exalted notion of their function, the administration of jus-
tice according to law. ..." One can hardly doubt the personal ele-
ment in Hutcheson's view of what he did, for it was an essential part of
his understanding that judges had a basic standard for their decisions.
This included the received wisdom from the past, as embodied by the
great Common Law precedents and the dictates of accepted procedure and
rules of conduct, but an even more demanding standard was involved.
Courts did their duty only in so far as they applied the basic values of
honor, patriotism, and the right, which derived from an "irrefutable
25
natural world," that is, natural law. From this, one can sense the
attitude which limited Judge Hutcheson's activism and his interest in
what he called "the irridescent beauty of a changing law."26 The values
of the past and tradition were paramount. As Hutcheson put it, "the
really, the deeply wise, the rememberers know better. They have always
23
Joseph C. Hutcheson, Jr., "This Thing Men Call Law," 2 U. of
Chicago L. Rev. 4 (No. 1, December, 1934).
24
Joseph C. Hutcheson, Jr., "Judging as Administration," 7 A.L.S.
Rev. 1069 (1933).
25
Hutcheson, Law and Liberty Reconciled, p. 19.
Hutcheson, "Judging as Administration," p. 1074.
-230-
known that the good life, social as well as individual, is rooted deep
97
in proven, though changing traditions and ideas."
In many ways, Judge Hutcheson's views and practices were enigmatic.
His most comprehensive statement of what being a judge involved first
appeared in a Cornell Law Review article and subsequently became the
basis for a book. It expressed a candor about the process of judicial
decision-making which was rare, particularly coming from a sitting Court
of Appeals judge. The philosophy expressed was very much in accord with
the school of legal realism that had received some currency from the work
of Jerome Frank. In this statement, Hutcheson admitted the degree to
which judges placed their personal standards, tempered of course by the
requirements of law and precedent, within a supposedly objective process.
He said:
I knew that "judges are depositories of the laws
like the oracles, who must decide in all cases of
doubt and are bound by an oath to decide according
to the law of the land," but I believed that
creation and evolution were at an end, that in
modern law only deduction had place, and that
judges must decide "through being long personally
accustomed to and acquainted with the judicial
decisions of their predecessors". ... I knew of
course, that some judges did follow "hunches"--
"guesses" I indignantly called them . . . [but]
I came to see that instinct in the very nature of
law itself is change, adaption, conformity, and
that the instrument for all of this change, this
adaption, this conformity, for the making and nur-
turing of the law as a thing of life, is the
power of the brooding mind . . . [so] after can-
vassing all the available material at my command,
and duly cogitating upon it, [I] give my imagina-
tion play, and brooding over the cause, wait for
27
Joseph C. Hutcheson, Jr., We March But We Remember (Houston:
Alpha Law Brief Co., 1941, 1967), p. 15.
-231-
the feeling, the hunch--that intuitive flash of
understanding which makes the jump-spark connection
between question and decision, and at the point
where the path is darkest for the judicial feet,
sheds its light along the way.28
One could hardly find a conception of judging more conducive to
activism, for Hutcheson had effectively argued that judges were ruled by
largely their own notions of justice; the precise legal reasoning of
erudite opinions were merely justifications constructed after the fact.
How then is one to explain what one observer called Judge Hutcheson's
passive view of what the Courts of Appeals could do in the school de-
29
segregation cases? He demanded that strict procedural requisites be
met and argued that courts could not reach out beyond the most limited
questions brought before them by litigants. Surely part of the explana-
tion must lie in Hutcheson's lack of sympathy for the entire process of
desegregation, and his rejection of what he called "social engineering"
by judicial fiat. Beyond that, however, some basis for what seems a
contradiction may be found in Hutcheson's political faith.
While Hutcheson was a deeply committed, life-long Democrat, he was
very much opposed to the New Deal. This opposition went even beyond
personal enmity to "that bastard Roosevelt," who Hutcheson felt, along
with many others, denied him the Surpreme Court seat to which he was
30
entitled. Hutcheson saw himself as a "Liberal of the Jefferson,
Joseph C. Hutcheson, Jr., Judgment Intuitive (Chicago: The
Foundation Press, Inc., 1938), pp. 517-19.
29
Confidential communication.
30
Confidential communication. One of the reasons many thought
Hutcheson was never elevated to the Supreme Court was that despite what
were then considered liberal views, he was too independent of thought
and unpredictable to find favor in the Roosevelt Administration.
Jaworski, "A Lifetime of Judicial Service," p. 1150.
-232-
Madison, Lincoln, Wilson school ... a lover of liberty, and not . . .
31
a worshipper of state power." In fact, the essence of being an American
32
was the habit of protecting one's rights against government. The New
Deal and Roosevelt represented "European, bastardized ideas of Liberal-
33
ism." Hutcheson s special enmity was reserved for administrative
agencies which regulated, accused, investigated, judged, and disposed.
These were the "planners," the "state worshippers," the worst of which
was the National Labor Relations Board, an agency that Hutcheson took
34
delight in lambasting. With regard to NLRB enforcement cases, the
Supreme Court could do whatever it wanted to but he, Hutcheson, was going
to continue to do what was right!
Judge Hutcheson was a firm believer in the maxim that government is
best which governs least. His great enemy was the state, the edifice of
distant, arbitrary power which claimed to know more about what the citi-
zen needed than the citizen himself knew. Hutcheson believed there was
a clear choice between forms of political and economic life, one of which
was the traditional path in a free society that valued individual freedom
and dignity above all else. The other form was that which revered the
government, the state which employed law as a mere instrumentality by
31
Joseph C. Hutcheson, Jr., "Restraint, the Price of Freedom,"
address at the 22nd Founder's Day dinner of the Lawyers Club at the
University of Michigan, April 28, 1950, reprint, p. 3.
32
Ibid., p. 5.
33
Ibid., p. 9.
34
Joseph C. Hutcheson, Jr., "New Instruments of Public Power,"
address to annual meeting of State Bar of California at Coronado, Cali-
fornia, September 26, 1946, reprint, p. 8. This distaste extended to
the Supreme Court when it engaged in superfluous preaching and dicta on
administrative matters, or as Hutcheson called it, "bewordling." Ibid. ,
p. 14.
-233-
35
which to order the life of the governed. Jefferson and Madison were
thus his patron saints; the Federal ist Papers was his Bible. His poli-
tical faith and creed were that a government which entrusts power to men
over other men must not only control the governed but must also control
itself. Hutcheson was, in short, a bona-fide nineteenth century
liberal .
It was clear to those who knew him that Judge Hutcheson enjoyed
many things about being a federal judge. The honor and respect one re-
ceived from other judges and lawyers was important, for he had learned
from his father the value of one's reputation among peers. Additionally,
Hutcheson was motivated by a sense of public service and duty, also a
result of his father's influence. Further, being a federal judge gave
Hutcheson the opportunity to demonstrate his dedication to principle by
announcing deeply held beliefs and standing by them, and to fulfill his
ambitions to excel! and be a man of importance. These attitudes led
Hutcheson to gear his entire life to the needs and requirements of the
Court. He had little or no social life and maintained a very demanding
work schedule until his stroke forced him to slow down.
Being a federal judge was not, however, without its costs for
Hutcheson. Perhaps due in part to his own personality and in part to
his elevated sense of propriety, Hutcheson found the life of an appellate
judge a lonely one. He viewed his position as ceremonial as well as
substantive, particularly after he became Chief Judge of the Fifth Circuit
35
Hutcheson, Law and Liberty Reconciled, p. 15.
Joseph C. Hutcheson, Jr., "Separation of Powers and Administrative
Law," address to National Shorthand Reporters Association at Houston,
Texas, August, 1936, reprint, p. 13.
-234-
in 1943. As a result, he cut himself off from friendships among lawyers
and found many of his relationships to be artificial. He was an auto-
cratic Chief Judge, and ran the Fifth Circuit with a rather firm hand.
All of this fitted Hutcheson's picture of the proper behavior for a
federal judge.
Notwithstanding Hutcheson's very clear sense of honor, duty, and
respect, and his strict demeanor, in the company of his father, he was
a defferential son. It would be impossible to overestimate the influence
his father had on him. One habit of Hutcheson's illustrates the point
quite well. "When he was a judge, sitting on the bench, his father would
stick his head in the courtroom and say, 'Joe, it's time for lunch,'
interrupting the court proceedings. The judge would bang the gavel and
37
recess court and go out to lunch with his dad."
John Minor Wisdom's view of the courts and the task set for them
bears a superficial similarity to that of Hutcheson. Like Hutcheson,
Wisdom believed that courts exist to dispense justice with an even hand.
Although he has not been as public a writer of articles and books as
Hutcheson, Wisdom's learning and philosophical breadth were displayed
in his opinions. Some of his critics contended that he took too long in
preparing opinions, but Wisdom labored over those documents and was
usually the man chosen to write opinions which required sophisticated
analysis, historical development, and policy considerations. His per-
formance earned him the reputation as the scholar of the Fifth Circuit.
Wisdom, like Hutcheson, saw an intimate relationship between the
judge, the world in which legal decisions had effect, and the process of
37
Smith interview.
38
Confidential communication.
-235-
reaching decisions. The effective judge always had to begin from a
neutral position, but once a decision was reached, he had to be willing
to support his position like an advocate.* Here, however, Wisdom's
similarity with Hutcheson ended, for the former's conception of the
administration of justice produced a judicial activism so much more
extensive than Hutcheson's that it became totally different in nature.
Certainly consistency in the law was an essential and important element
in a judge's occupation, but precedent or stare decisis was not as im-
portant as the situation before the Court. As Wisdom said, "the problem
that is most important is the solution of the case and its impact on the
future, not how past decisions effect it. It was here, in his highly
developed sense of social responsibility within the judicial system, that
Wisdom most clearly departed from Hutcheson.
Judge Wisdom has frankly stated that the federal courts have a
political and social role in our system. While he felt the relationship
had been overplayed by some academics, Wisdom was convinced that the con-
nection between law and social change was an intimate one. It was impos-
sible to avoid that connection, for "a case can't be considered outside
41
of its social context." Courts did not operate in a principled
vacuum, isolated from the everyday struggle. Thus, he maintained federal
*This was one of the reasons Wisdom felt that a broad experience in
practice was a better preparation for becoming a judge than extended
academic study.
39
Wisdom interview (emphasis added).
40
John Minor Wisdom, "A Southern Judge Looks at Civil Rights," 42
F.R.D. 437 (1967), p. 453.
41
Wisdom interview.
-236-
courts operated governmental ly "to bring local policy in line with national
policy . . . and adjust the body politic to stresses and strains pro-
duced by conflicts (1) between the nation and the states and (2) between
the states and private citizens asserting federally created or federally-
42
protected rights." In effect, the federal courts acted as a buffer-
mediator between government and the individual.
Wisdom's activism could also be distinguished from Hutcheson's by
the nature of their attitude toward government. Unlike the Texan, Judge
Wisdom always believed that history favored a strong national government.
The nation, he argued, thrived and lived with Jeffersonian principles,
so lauded by Hutcheson, but under a Hamiltonian view of government that
"rejects as archaic the maxim that the least government is the best
43
government. Indeed, Wisdom felt that the most important power of the
federal courts was to enforce and protect federal rights of individuals
against local deprivation, particularly in civil rights cases. It was
precisely this function that the federal courts performed in the school
desegregation cases.
Judge Wisdom also had a clearly developed view of the different
functions the various levels of federal courts should perform. The
Supreme Court was responsible for providing the broad outlines of policy.
The highest court provided a skeleton of law upon which the lower courts,
particularly the Courts of Appeals, put the flesh of action and develop-
ment. The Courts of Appeals both brought local policy in line with
national, and provided the final arena for settling almost all disputes.
42
Wisdom, "A Southern Judge Looks at Civil Rights," p. 454.
43Ibid., p. 455.
-237-
Courts of Appeals were creative bodies, deferring to District Courts
only on matters of fact. The District Courts were the front-line of the
judicial system as triers of fact, but they were also the entry point or
beginning of the creative process. The nationalizing role of the Courts
of Appeals was particularly important to Wisdom, for the broader con-
stituency of that Court freed judges from the parochial prides and pre-
judices that were often evidenced in the District Courts. The greater
variety of backgrounds of the judges and the required adjustments one
with another was a positive influence.*
These relationships were easy to see in the school desegregation
cases. The Brown decisions had delegated a broad discretion to the Dis-
trict Courts. This worked poorly, Wisdom maintained, because the problem
in civil rights was most often attachment to local custom, and the ex-
posure to localism gave the lower courts a narrow view, in most instances,
of the nationalizing role of the federal courts. Courts of Appeals were
therefore required to step in and give detailed instructions to the
District Judges. The burden of protecting the individual therefore fell
to the Courts of Appeals, Wisdom argued, and quite properly since they
were less exposed to built in pressures and allegiences than the District
Courts. Unnecessary difficulty was caused because the Supreme Court did
not provide a real guideline upon which to build the law.
♦Wisdom interview. It was just this opposition to parochialism that
has led Wisdom to oppose splitting the Fifth Circuit in two though its
large size has caused some administrative difficulties. The loss of
diversity would be a serious mistake as far as Wisdom was concerned, for
the logic of the process would lead to smaller, more limited Circuits.
The Courts of Appeals would lose their special federalizing function and
be no more than another level of District Courts.
44
Wisdom, "A Southern Judge Looks at Civil Rights," pp. 457-461,
passim.
-238-
It must be obvious from the above, that innovation was an essential
element of Wisdom's philosophy of judging. Courts had a responsibility
to address current problems and had to view their field of endeavor as
broadly as possible. Of necessity, courts legislated and did not simply
find and apply existing standards. This active, legislative role was
appropriate, Wisdom maintained, for the policy setter was the Supreme
Court, and the interpreter and developer was the Court of Appeals. In
the school desegregation cases, the legislative responsibility was clear.
The Supreme Court, forced to take the lead at first due to executive and
congressional inaction, had explained the constitutional commandment.
The Courts of Appeals were then called upon to provide the means by which
the Constitution was to be enforced, that is to legislate, because local
authorities would not voluntarily obey, and the President and Congress
refused to act. Wisdom disliked the involvement of the Courts of Appeals
in detailed school administration, but there had been no other choice in
the absence of any other active agent.
John Minor Wisdom also found the life of a federal judge to be very
satisfying, particularly as an appellate judge. Chief among the rewards
for Wisdom was the opportunity to research and write on a broad spectrum
of legal issues. Being a judge involved a life-long process of education,
an opportunity to exercise and challenge the mind. This personal, in-
tellectual benefit was combined with satisfaction in being able to
participate in what seemed to be an almost artistic creative enterprise,
the evolution and development of the law. Wisdom's pleasure in this
regard extended beyond those areas of law which might first come to mind,
such as constitutional issues and civil rights, to more technical fields
such as taxation, corporate law, and oil and gas law. Additionally,
-239-
Wisdom found reward in being able to extend ideas of fairness and justice
to those for whom such concepts had been illusory.
Judge Wisdom disliked only one feature of his life on the Court of
Appeals. He did not have the time to do all of the reading he wanted
to. He did not, however, feel that federal judges were overworked.
Experience on the bench provided any judge with the ability to give full
attention to his tasks, without denying himself the ordinary pleasures.
As Wisdom put it, "I never heard of a Judge's handicap going up." One's
social life need not suffer either, for Wisdom maintained he never felt
isolated nor forced to alter or abandon long-standing friendships. As
long as one behaved with propriety, friends within the legal profession
would not presume upon their friendship. In sum, Judge Wisdom felt there
were very few careers that would provide him with the satisfaction he
had had as a federal judge.
Some mention must be made of the special feelings of Judges Hutcheson
and Wisdom toward the Fifth Circuit Court of Appeals. They both took
particular pride in the work of the Court and its nature as an institu-
tion, but this pride was expressed in very different ways. For Judge
Hutcheson, the Fifth Circuit was the only real Court of Appeals. The
Fifth was a binding agent for the South, at least in so far as the law
was concerned. The Court was the highest institutional expression of his
region, and if nothing else, Hutcheson was a regional man. Having spent
some fifty years as a judge within the Fifth Circuit, thirty-seven of
which as judge on the Court of Appeals, Hutcheson developed a very close,
personal identification with the Court. The Fifth Circuit was his home,
45
Wisdom interview.
-240-
and he felt the same relationship between himself and the Court that
Charles DeGaulle saw between himself and France. The Fifth was Hutche-
son's Court, and as Chief Judge, he ran it his way.
Not surprisingly, Judge Wisdom's pride in the Fifth Circuit Court
of Appeals was not based on any notion of regionalism, but rather upon
the role of the Court in bringing the South in line with national policy.
When the Executive and Legislative branches of the federal government,
local governments and school boards, state governments, and even the
Supreme Court after the initial decision in Brown, all failed to exert
either leadership or support in trying to solve the most important social
question of the era, the Fifth Circuit assumed their responsibilities as
well as its own. He was extremely proud of the Court's record, for as
he put it, "I think when some courts were undecided what to do about
desegregation and were dragging their feet, I think we more or less led
the way." A Southern court provided the guidance, even the leadership,
which the Supreme Court later extended to the entire nation.
As a final means of gaining insight into these two influential men,
examination of the opinions of their colleagues and other observers is
most useful.* There was a basic consensus of opinion about Judge
Hutcheson. He was viewed as a forceful, independent-minded and per-
suasive man. Current Chief Judge John R. Brown viewed him as an active
46Ibid.
*The source for the comments in this section are the interviews with
the other judges, Dean Smith, Dean Read, and others who wish to remain
anonymous. Most comments will be attributed to their source, but some
will be treated as confidential communications. There is a delicate
situation here, for five of the judges are still alive and sitting on the
Fifth Circuit bench. This method will be followed in the two subsequent
chapters dealing with the other judges.
-241-
and prolific judge who had great talent as an administrator. He kept all
of the judges working and moved a great caseload through the Fifth Cir-
cuit. Brown also saw him as an accomplished writer who put "novel ideas
47
in noble form." He was a particularly forceful advocate of his view-
point, and his "vigor [was] a reflection of his own fearless independence
48
and rectitude." In some ways Brown felt he was a "crusty, haughty"
man, particularly as a District Judge, who could be abrupt in running
his court. Hutcheson's personality mellowed after his stroke, Brown
felt, as the Judge welcomed the genuine sympathy he received. In sub-
stantive matters, Hutcheson would not experiment or innovate, but
though he was reluctant in civil rights, he always tried to support
49
constitutional rights and requirements.
John Minor Wisdom also noted Hutcheson's abilities as a judicial
advocate. He was a lobbyist for his view and would often attempt to
change opinions by phoning the other judges on a panel. Hutcheson was,
Wisdom said, a very effective judge for an incredible number of years,
but may have stayed on the Court beyond his days of top performance.
Judge Elbert Parr Tuttle had recollections of Hutcheson as a great
classical scholar, who often did intellectual battle with the great
Learned Hand. Tuttle also remembered Hutcheson as an effective advocate,
who would appeal even to deference to age, experience, and friendship to
47
John R. Brown, "Hail to the Chief: Hutcheson, the Judge," 38
Texas L. Rev. 140 (No. 2, December, 1959), pp. 140-44.
48Ibid., p. 145.
49
John R. Brown, private interview in Houston, Texas, August 24,
1977.
Wisdom interview.
-242-
gain his point. Debates with Hutcheson were never acrimonious, however,
as the Judge never confused differences of opinion with personal
hostility. Hutcheson 's independence of mind was evidenced by his frequent
practice of announcing his views early in the hearing of a case. Tuttle
thought Hutcheson was bright and quick even in his later years but
wondered if at times Hutcheson was more interested in turning a neat
51
phrase than worrying about the result in a case.
Judge Hutcheson was a man of vast experience in the law. It has
been said of him that through his long years of service, great learning
and vigor, and forceful opinions, Hutcheson was exceeded by very few
judges in shaping the law as applied and interpreted in the federal
52
courts. Hutcheson 's abilities and familiarity with the law were at-
tested to by his former law clerk, Dean Smith. The Judge's library was
totally inadequate because Hutcheson rarely had to do any research. He
remembered all the law he knew, and that was a substantial body of
53
literature. Hutcheson was a forthright and punctilious man who valued
strength of character. To be worth anything, he liked to say a man had
to have courage, to stand up for his opinions, and to count for something.
51
Elbert Parr Tuttle, private interview in Atlanta, Georgia, August
26, 1977. Judge Hutcheson's facility with words was also demonstrated in
the expression of a sense of humor that was surprisingly self-deprecating
in a ;nan of his nature. What follows is a specially delightful example.
"At first, as a lawyer and advocate for my client, I was an inducer of
errors. Next, as a trial judge and earnest advocate for the right solu-
tion, I was a producer of errors. Now as an appellate judge, a member
of a 'court which lives by correcting the errors of others and adhering
to its own,' in theory a reducer of errors, I am, I fear, in fact a con-
ducer thereto." Joseph C. Hutcheson, Jr., "Law is a Many Splendored
Thing," 19 Ala. Law. 146,150 (No. 2, April, 1958).
52
"Judge Hutcheson to Retire," 28 Texas B. Jour. 7 (December, 1965).
53
Smith interview.
-243-
His toughness and insistence upon the responsibility of the individual
was reflected in his dislike for en banc hearings in the Court of Appeals.
Since it took only one good Texas Ranger to quell a riot and control a
mob, he once commented it should take only three Appeals Judges to de-
54
cide any case.
The generally shared view of John Minor Wisdom was that of absolute
respect for his brilliance. Chief Judge Brown called him one of the
greatest judges he ever knew and stated that in racial and school de-
segregation, John Minor Wisdom had a greater influence than any other
judge in America. The fact that his opinions were both far reaching and
scholarly indicated Wisdom's mental energy. Brown valued what he called
"Wisdom's remarkable facility for extending court remedies but knowing
55
where the 1 imits are."
Judge Hutcheson also respected Wisdom's intelligence, even though
he would surely disagree with the extension of the Court's supervision of
the schools that Wisdom led. Hutcheson was, however, a bit uncomfortable
56
with Wisdom's style, for he viewed him as an eccentric. Even Benjamin
Cameron, who disagreed vehemently with Wisdom on desegregation, liked him
57
and respected his abilities. Judge Tuttle called Wisdom the most
scholarly member of the Court. Tuttle's greatest compliment for Wisdom
54
Richard Taylor Rives, private interview in Montgomery, Alabama,
July 27, 1977.
55
Brown interview.
56
Smith interview. Dean Smith made specific reference to Hutche-
son's discomfort when Wisdom would arrive in his chambers in tennis
sneakers.
Read interview.
was that he, Tuttle, was truly flattered that he Wisdom agreed so much
of the time.
Dean Read, and others, have viewed Wisdom as aptly named, for they
see him as the brightest sitting appellate judge in the country. He was
one of the real judicial giants of the century, at the least on a par
with the great justices of the Supreme Court. His scholarship and sense
of history were unmatched, his opinions impecable in terms of style,
clarity, and law. Wisdom was a perfectionist and did not suffer fools
gladly, but clerks and secretaries loved working for him as he was also warm
and loving. Judge Wisdom was fearlessly principled and would not alter
59
his view on a matter of importance. Even now as a senior judge, Wisdom
is a powerful force on the Court of Appeals. In short, even in the
company of outstanding judges, John Minor Wisdom was the most highly
respected as a judge. Only Richard Nixon's Southern strategy denied
him a deserved seat on the Supreme Court.
Tuttle interview.
59
Read interview and confidential communication. Alone among the
Judges of the Fifth Circuit Court of Appeals, Judge Wisdom refused to
sign a letter in support of the nomination of G. Harold Carswell for the
Supreme Court. In Wisdom's view, Carswell simply did not have the
necessary quality.
Confidential communication. Some of the other judges on the
Fifth Circuit Court chafe under the intellectual dominance of Wisdom,
and while Chief Judge Brown is a demanding administrator, he never ca-
joles Wisdom to turn out his opinions more rapidly.
CHAPTER VIII
THE JUDGES (3):
RICHARD TAYLOR RIVES AND BENJAMIN F. CAMERON*
John Minor Wisdom and Joseph C. Hutcheson, Jr., were men of the
South, but their background was hardly typical of that slow moving,
Magnolia stereotype of the early twentieth century. Wisdom was raised
in New Orleans, a cosmopolitan city, and had a broad educational back-
ground. Judge Hutcheson was as much a man of the frontier as a Southerner,
and Houston was a bustling boom town. Richard Taylor Rives and Benjamin
F. Cameron, however, did grow up in an atmosphere which seemed closer to
the national image of the Old South. The Rives family had lived in the
Montgomery, Alabama, area for generations, and Ben Cameron's family were
long-established Mississippians. The two men were very much a part of
the Southern tradition and shared many beliefs. Both had a conservative
view of the law and of the function of judges, and a traditional approach
to matters of social relationships. These men, alike in so many ways,
however, had \/ery dissimilar careers. Richard Taylor Rives rose above
the received values of his background and established himself as one of
the most courageous judges in our times. Ben Cameron remained trapped
by his heritage and became a lonely and tragic figure on the Court of
Appeals.
♦Benjamin F. Cameron, 1890-1964. Appointed to Fifth Circuit 1955,
served to 1964. Richard Taylor Rives, 1895-. Appointed to Fifth Circuit
1951.
-245-
-246-
Cameron was the son of a Presbyterian minister and received his
early schooling in a private academy. From the little information avail-
able, he seems to have spent an active childhood, both physically and
intellectually, as he became a scholar of classical languages and at
various times in his life, a football coach.* His formal schooling at
the University of the South and Cumberland University was a classical if
limited one. Cameron found time while in law school to teach at Norfolk
Academy in Virginia, and to serve as a coach at Cumberland. He retained
an active interest in the University of the South and became the Chairman
of its Board of Regents. While a young man, Cameron developed an in-
terest in horses, and this avocation remained an important part of his
life. Cameron maintained a home in Minton, Alabama, and kept his horses
there. Until his heart attack in the late 1950's, the Judge often in-
vited friends and colleagues to this retreat and displayed his horse-
manship.
Ben Cameron practiced law in Meridian, Mississippi, from 1914 to
1955, when he was named to the Court of Appeals for the Fifth Circuit.
Frank T. Read, private interview in Tulsa, Oklahoma, September 7,
1977.
*The information about Judge Cameron, who died in 1964, comes pri-
marily from a private interview with Judge James P. Coleman, former
Governor of Mississippi and Cameron's replacement on the Court of Appeals,
in Ackerman, Mississippi, on August 17, 1977. Coleman did not know
Cameron until the latter was a well-established lawyer, and information
about Cameron's youth was unavailable. The Judge's widow is still alive
but does not give interviews. His son, Winston, who is a practicing
attorney, would not consent to an interview. Judge Coleman believed the
family had no desire to discuss the Judge's career, for Cameron's posi-
tion has become unpopular and his experience on the Court was unpleasant.
As a result, the only insight obtainable derived from what others have
said about the Judge and from Judge Coleman's remarks.
Coleman interview.
-247-
From 1928 to 1932, he was a United States Attorney for the Southern Dis-
trict of Mississippi in the Hoover Administration. For the balance of
those forty-one years, he engaged in a general private practice. Cameron
developed a reputation as a well-read, effective, and tenacious lawyer.
Reflecting his upbringing, Cameron's demeanor was always dignified, and
to some, rather stern and straight-laced. He had a mania about smoking,
not allowing it in his home, and he was also a total abstainer from
alcohol. He remained an active and staunch Presbyterian througout his
3
life. Cameron handled all varieties of civil cases, and many of his
clients were well-known businessmen and politicians in the State.
Cameron was named to the Court in 1955. Although he had established
a fine reputation as an attorney, an important basis for the appointment
was the fact that Cameron was one of the very few genuine Republicans in
Mississippi. Eisenhower was looking for a Mississippi Republican to
replace a retiring Democratic appeals judge from Mississippi. Although
Cameron was a bitterly anti-New Deal Republican he was also very close
to the Democratic political leaders of the state and received their
endorsement. His appointment was also supported by John Minor Wisdom,
a particular favorite of Eisenhower. His appointment received the sup-
port of both the Mississippi NAACP and White Citizens Councils.4
3,
Judge Cameron hardly fit the image of the bourbon-drinking, cigar
smoking Mississippi lawyer, but in one regard at least, he was clearly
a "good ole boy." Reflecting his constant interest in athletics, Cameron
became a rabid University of Mississippi football fan. Indeed, after his
heart attack, he was unable to even listen to broadcasts of Ole Miss games
since he became too agitated for his health. Read interview.
4
Elbert Parr Tuttle, private interview in Atlanta, Georgia, Agusut
26, 1977. Cameron seemed to be all things to all people if these "strange
bedfellows" were any indication.
-248-
Judge Rives' youth was, according to him, very ordinary and he "did
5
what every boy does." His grandparents had come to Montgomery and had
done rather well. The family had been wealthy, but they were wiped out
after the Civil War. His father had planned to be a gentleman farmer,
but lack of funds, and an unsuccessful attempt at farming in Texas,
brought him back to Montgomery, where he became a road builder. While
Rives did not remember his childhood as desperate, he described it as one
of genteel poverty. The Rives' reduced circumstances had a direct impact
on his education.
Rives had been a good student in secondary school, but the atmosphere
was not one which encouraged scholarship. Most of his friends dropped
out of school to go to work, and there were only nine boys in his gradu-
ating class. However, Judge Rives won a tuition scholarship to Tulane,
and this grant, plus a $400 loan from his school teacher* sister saw him
through his first year. Although he did well, there was no more money
available, and Rives' formal education came to an end. He had been in-
terested in the exact sciences and mathematics, and he wanted to become
a chemist. This was impossible without further education, so an alterna-
tive career had to be found. His father was close friends with a pro-
minent attorney in Montgomery named Wiley Hill. Young Richard was
therefore sent to Hill to "read law" and prepare for the Bar Exam in
the tradition of the small town, Blackstone lawyer.
5
Richard Taylor Rives, private interview in Montgomery, Alabama,
July 27, 1977.
*Rives had one other sister who was a housewife and two brothers,
one of whom became an optician, and the other served with Rives in the
National Guard on the Mexican border and in Europe.
-249-
Rives remembered Wiley Hill* as "a magnificent lawyer, the best
lawyer I have ever known." He had a splendid, logical mind and although
he was a very shy person, Hill became a lion in the courtroom. Hill
spent a few hours each week instructing Rives and directing his legal
studies. Although he felt that law school was better than reading law
in general, Rives believed he learned a good deal because Hill was such
a fine teacher. Rives spent two years reading law, and even during that
period, wrote legal briefs for Hill. In 1914, Rives passed the Bar
Examination at the age of nineteen and was admitted to practice in
Alabama. He immediately began work for the Hill firm at a salary of
$75 per month.** With the exception of service with a local National
Guard unit on the Mexican border in 1915 and 1916, a few months as an
Assistant City Attorney in Montgomery, and a brief period of service
in the Army Signal Corps in Europe in 1918, Rives remained with the
firm until 1949, eventually becoming a senior partner.
Judge Rives' practice in Montgomery included all types of cases,
and although civil suits were the bulk of the paying business, the Hill
firm also handled criminal matters. It was the only large firm in
*Wiley was the uncle of Senator Lister Hill of Alabama.
Rives interview.
**Rives told a marvelous story about another young lawyer who had
just graduated from the University of Alabama and was working for Hill
at no pay in order to gain experience. He was asked to prepare a brief
on a particular matter. He did so and presented it to one of the part-
ners. The partner said it was fine, but he wanted to see the young man's
authorities. The young lawyer replied, "I thought you wanted to know
what I thought." He had included no legal authorities. Rives
interview.
-250-
Montgomery which did any criminal work. A large portion of Rives' work
was plaintiff's practice, and he felt this experience and his criminal
work gave him a good understanding of juries. More importantly, for
Rives, it was a source of pride. Speaking of successful attorneys who
represent only affluent clients, Rives said, "I must say, however, that
what they have gained in security they have often lost in the freedom
and independence that come from representing many poor plaintiffs, rather
than a few rich defendants." Rives' independence was proved by his
Q
actions, for he often took unpopular cases with blacks as plaintiffs.
Rives was very active in social and professional organizations, and
established himself as one of Montgomery's leading citizens. He belonged
to most of the exclusive clubs in the community* and derived great plea-
sure from the social life of Montgomery society. Rives was clearly what
would be called a member of "The Establishment," and he enjoyed that
9
position. He was also active in local and state Bar organizations and
became involved with problems of professional standards as early as 1923.
By 1934, he had become president of the Montgomery Bar, and in 1940 was
president of the State Bar Association. In that office, he helped start
a state bar journal, The Alabama Lawyer, and he initiated the Law In-
stitute which held discussions around the state on legal subjects.
As a practicing lawyer, social figure, and state bar official, Judge
Rives was no radical. He subscribed to the generally accepted social and
Richard T. Rives, "Trying a Case for the Plaintiff," 2 Ala. Law.
407 (October, 1941).
o
Read interview.
*These clubs were all reserved for whites only.
g
Confidential communication.
-251-
political views of his community. Rives, however, also had an inate sense
of fairness. For example, in 1946 Rives had voiced his opposition to the
proposed Boswell Amendment to the Alabama Constitution. This Amendment
limited voting to those who could read and write, understand and explain
any article of the U.S. Constitution, were of good character, and under-
stood the duties and obligations of citizenship. All of these factors
were to be determined by the State Board of Registrars. In an address
at the Montgomery Museum of Fine Arts, Rives argued that the Amendment
was pernicious because it gave the Registrars arbitrary power. Blacks
who could qualify by reading and writing should be allowed to vote and
the Amendment could be used to disqualify all blacks. Whites could also
be kept from voting. To Rives, racial prejudice was the instrument of
selfish interest. Although Rives believed that whites were superior
to blacks, trickery, as he characterized the Boswell Amendment, was not
a legitimate way to preserve that supremacy. Today Rives comments that
the Amendment was "just too much."
Rives stayed with the Hill firm until 1949. In that year, he went
into practice by himself, although he had some trepidation about starting
out anew in his mid-fifties. He took this step in anticipation of his
son's graduation from law school at the University of Michigan. Father
and son were close and wanted to practice law together. Their plan was
not fulfilled due to the greatest tragedy of Judge Rives' life. On
April 1, 1949, while Richard, Jr., was riding in a car driven by another
Richard T. Rives, "An Argument Against the Adoption of the Boswell
Amendment," 7 Ala. Law. 291 (July, 1946), pp. 292-94.
Rives interview. Judge Rives had made his position clear on
matters of constitutional rights before he went on the Court.
-252-
young man near Jacksonville, Florida, he was killed in a crash.* Rives
practiced alone for two more years until he was named to the Court of
Appeals by President Truman, keeping busy with a heavy volume of work,
primarily plaintiffs' work and criminal cases. There was so much business
that Rives took another attorney into the firm, John Godbold, who
ironically also became a judge on the Fifth Circuit Court of Appeals.
Rives was very active in Alabama Democratic politics. He had been
a delegate to the 1940 National Democratic Convention and was an active
participant in political campaigns for Lister Hill as U.S. Senator and
the successful gubernatorial campaigns of his close friend from Montgomery,
Bibb Graves. In one of these campaigns, Rives headed the Graves Speakers
Bureau. Throughout the 1940's, Judge Rives was a major figure in Alabama
campaigns, for he had the standing to influence votes by his endorse-
ment of candidates.
When Leon McCord of Alabama retired, Rives was named to the Court of
Appeals. McCord wanted to run for governor and asked Rives if he wanted
the seat he was vacating. "I sure did" was Rives' response. Since Rives
was known and respected by Senators Hill and Sparkman, Attorney General
McGrath, and the President, his appointment was assured. Rives was
notified that the announcement of his appointment was going to be made
in a rather novel way. He was arguing a case before the U.S. Supreme
Court, and in the middle of his presentation, he received a note from
McCord indicating that everything had been cleared. Rives said he almost
*Judge Rives never completely recovered from this loss. He still
mourns for his son, almost thirty years later. One informant felt at
least one of the many legitimate reasons why Rives was named to the Court
of Appeals in 1951 was sympathy over the death of his son. Confidential
communication.
-253-
collapsed, and when he recovered his composure, he looked up and saw
1 2
Justice Felix Frankfurter smiling and nodding at him.
Although Rives was very pleased, it was a measure of his humility
that he also had qualms about going on the Court. He sought the advice
of Justice Hugo Black, who had been a close friend. Rives was concerned
because he had little experience in administrative law, for example, he
knew nothing about National Labor Relations Board cases. He told Black
he wondered if he wasn't stepping in over his head. According to Rives,
Black thought Rives was "pulling his leg." Black replied that on close
cases, when they came to the Supreme Court, the judges balanced each
1 3
other out. Therefore, he told Rives, "You can't do any real harm."
The reaction of Rives and Cameron to the Brown desegregation de-
cisions, similar though the men were, could not have been more divergent.
Cameron was completely opposed to the Supreme Court's ruling. Fairness
to all in school matters was already guaranteed by laws on the books and
in particular by the separate but equal doctrine. Segregation in the
schools was an established system, and attempting to integrate the schools
would wreck the schools of Mississippi. Cameron bore no animus to blacks,
but racial relations in the South were harmonious based on segregation.
In any event, the Constitution was not meant to provide for the enhance-
ment of federal power and interference with local matters, such as
14
schools, by judicial fiat.
12D. . . .
Rives interview.
13....
Ibid.
14
Coleman interview. Subsequently, when Cameron came on the Court
of Appeals, he voiced the opinion that the Fourteenth Amendment should
not be applied in the South. Tuttle interview.
-254-
Judge Cameron heard two of the cases covered by this study, and in
each instance, he dissented from the holding of the majority. His
position in all three hearings was the same, and reflecting his belief
that the issues involved were strictly legal rather than moral or social,
Cameron based his dissents on what he viewed as the Court's misuse and
improper application of equitable remedies. In Cameron's eyes, when the
precedents said one must exhaust administrative remedies, failure to do
so was a fatal flaw in the lawsuit. Whether or not further proceedings
within a state's administrative machinery was futile was beside the point.
Cameron's dissents were evidence of his legal craftsmanship, however, for
examined in a factual vacuum, they were logical, well written, and dif-
ficult to assail. This was a bit ironic, for Cameron prided himself on
being a practical judge, concerned with the results of the individual
case before the Court. His constant dissents, continued in cases beyond
the scope of this study, cost Judge Cameron a great deal, for he effec-
tively lost all impact and influence on the Court. He remained recal-
citrant and inflexible, and the other judges no longer took his contri-
butions in conference very seriously. Cameron was never on the positive
side in the civil rights cases before the Court of Appeals.
Ben Cameron's view of the function of the Court of Appeals was in
keeping with his philosophy on other matters. He was, it must be granted,
true to his beliefs and consistent in their application. Cameron was a
strict constructionist of the first order. The words of the Constitution
15r .
Coleman interview.
Confidential communication.
Read interview.
-255-
and the laws were plain, and it was the judge's job to apply those pro-
visions to the case before him. If the law was not clear, it was the
job of the legislature to correct the ambiguity and not of judges. He
believed strongly that judges should not legislate for that would be
usurping the function of another branch of government. If the "law was
not there, he would not supply it," and the litigants would be directed
1 8
to Congress for their eventual relief. Cameron would not go one inch
beyond what statute and precedent required. Even his close friend Judge
1 9
Coleman called him an inflexible, ultra-conservative judge.
For Judge Cameron, the heart of the Constitution, and the core of
his political ideology, was the Tenth Amendment. The greatest danger he
saw in the school desegregation cases, aside from the revolution in the
customs of the South, was enhancement of federal power at the expense of
individual state sovereignty. It might almost be said that Cameron knew
20
no allegiance higher than to the state of Mississippi. Since he be-
lieved himself to be a man without prejudice, at least part of his nega-
21
tive stance in the school cases was a result of this fierce localism.
Cameron was very proud of being a judge, for he held the occupation
in high esteem. Judges were essential to the operation of a just system,
for their pursuits were truth and justice. Before he went on the Court
of Appeals, he put it this way, "A lawsuit, after all, is dedicated to
finding out the truth wherever the truth happens to lie, and to bring it
18
Coleman interview.
Ibid.
20
Confidential communication.
21. . . . .
Coleman interview.
-256-
finally before the arbiters of law and fact, who shall try to deal out
22
justice. Cameron was even more proud to perform this function on the
Fifth Circuit Court of Appeals, for he believed that Court to be the
highest, most respected Southern judicial institution. The Court was
thus an important part of the South, speaking for its judicial and legal
23
traditions. This was what made the Fifth Circuit Court so special
22
Benjamin F. Cmaeron, Fundamentals of Practice in Federal Courts
from the Standpoint of a Practical Trial Attorney," 24 Miss. L.J. 345
(No. 4, October, 1953), p. 348.
23
Cameron's allegiance to the Fifth Circuit Court of Appeals was
best demonstrated during the greatest internal crisis the Court ever faced,
a crisis which had been caused by Cameron himself. In 1961, Cameron
charged that Chief Judge Tuttle had gerrymandered the hearing panels so
that in all civil rights cases, at least two among Judges Brown, Rives,
Tuttle, and Wisdom, whom Cameron called "The Four Horsemen" (later short-
ened to "The Four"), would hear the case and insure a favorable result for
black plaintiffs. Judges were supposed to be assigned to hearing panels
on a random basis, and Tuttle's actions were therefore unconscionable. In
fact, Chief Judge Tuttle did not make the panel assignments, as he had
designated Judge Brown as the assignments judge. Judge Brown argues that
no tampering existed, since 1) while he assigned panels, the Clerk of
Court set the docket, and there was no way to tell which panels would
hear which cases; 2) Judges Hutcheson, who had had a stroke, and Cameron
himself, who had suffered a heart attack, were often not available for
duty, making the pool of judges more restricted; 3) certain judges had
requested that they not be assigned with certain other judges to hearing
panels, so that the possible combinations were limited; and 4) some judges
who had come on the Court after 1960, had requested not to be assigned to
civil rights cases if possible. Whether or not the hearing panels were
stacked has remained an open question.
In any event, Cameron's charges led to further investigation, by the
judges themselves, and a judicial conference to air the matter in 1962 was
held in Houston, Texas. There is no way of knowing exactly what tran-
spired at that meeting, but a few things are clear. There were vigorous
arguments and a showdown between Cameron and the Four took place. All
except Cameron agreed that it was important the judges of the Fifth Cir-
cuit stand together in public view. However, before the close of the
Conference, still dissatisfied with the explanation on assignments and
free to carry on his crusade in public, Cameron called off the investi-
gators from the Administrative Office of the United States Courts. Cameron
saw that the Court could only be damaged as an institution by proceeding
further, and he had no wish to do that. He even came to see his constant
dissents and negative posture had cost him all of his effectiveness as
a judge. Confidential communication.
-257-
rather than its performance in any particular cases, its huge size, or
the monumental volume of its litigation.
Finally, Cameron truly enjoyed his position as a judge, and he never
felt isolated or removed from old friends and acquaintances. Litigation
from the Meridian area was never very heavy, so it did not interfere with
Cameron's relationships with former colleagues at the bar. However,
though the impact of Cameron's philosophical isolation and loneliness may
be difficult to estimate, his disputes with other members of the Court
must have dulled his enjoyment of being an appeals judge.
Judge Rives, while not a champion of integration by any means, took
a very different position. He believed that the trend toward the Brown
decision was clear in earlier cases. The judges had been applying the
separate but equal doctrine in the college cases, but they all knew that
the black schools were not equal. All of the judges on the Court at that
time believed that blacks should have better schools, but they believed
they had gone as far as they could. Rives was surprised only by the
"deliberate speed" language in the implementing decision. He could not
understand why one's constitutional rights should not be enforced im-
mediately. It turned out, Rives said, that the Supreme Court was right,
because it took time to make such a great change.
On the matter of segregation in general, Rives' position was a clear
example of the salutory effects of dedication to the rule of law and
obedience to one's oath as a judge. As mentioned previously, Rives was
no radical. He was a tradition-minded, conservative Southern Democrat.
At the same time, Rives was never committed to segregation as an item of
24
Coleman interview.
-258-
faith, and he was a passionately fair man. The evidence of this in his
years of practice was clear, and Rives maintained that this attitude came
from his father.* For him and for the Judge, it was "just an innate
25
idea of what's right and wrong." In applying this standard to the
desegregation cases, Rives took the position that the Supreme Court had
taken a stand, and he would simply follow the law.
Judge Rives sat on all three cases included within this study and
wrote the opinion for the Court in both hearings in the Gibson case and
in many of the hearings in the Rippy case in Dallas.** His opinions re-
flected his moderate attitudes. He allowed school boards and District
Judges both time and discretion to work out desegregation plans, but any
evidence of delay for its own sake or of less than good faith compliance
with the Supreme Court's directions, brought his swift rebuke.***
Rives was not, by nature, an activist on the Court, but he was
willing to stretch equitable remedies to their full extent to see that
black plaintiffs' rights were not abridged. Rives readily admitted he
was not terribly comfortable in this posture. He was happiest with
*The judge's father had been a member of the original Ku Klux Klan
of Reconstruction days, but his attitude toward personal relations with
blacks had become essentially to "judge each man as an individual."
Rives' mother, on the other hand, was, in his words, "a dyed-in-the-wool
rebel" with a full measure of racial prejudice.
25D.
Rives interview.
**Rives was also the opinion writer in the cases which grew out of
the Montgomery bus boycott in 1955 which launched Martin Luther King, Jr.,
on his career. Rives found for the black plaintiffs and was joined in his
opinion by Alabama District Judge Frank Johnson.
***He was particularly hard on District Judges Davidson and Atwell,
describing the former as a "dyed-in-the-wool racist" and the latter as
a "law unto himself."
-259-
freedom of choice plans, and at the outset, consciously attempted to
follow the path of Chief Judge John Parker of the Fourth Circuit Court
of Appeals. Parker had maintained that Brown and the Constitution did
not require integration but rather desegregation, which he took to mean
the prohibition of discriminatory segregation in the schools. Judge
Rives felt this was an accurate reading, particularly for a period of
transition. It was not long before Rives altered his view and started to
enforce grade-a-year mandatory desegregation plans. In hindsight, both
approaches seem rather hesitant and certainly insufficient to achieve
full integration in the schools. At the time, particularly from a
Southern court, they represented real change. In any event, Rives came
to see that the distinction between integration and desegregation was
specious, and eventually supported Judge Wisdom's push for integration,
"lock, stock, and barrel."
Judge Rives paid a very heavy price for his position on desegrega-
tion. Rives himself said he suffered no more than any other judge on the
Court from his decisions, and in any event, judges had to expect some
unpleasantness when they made rulings that were unpopular in the community.
He did admit that he received what he characterized as "bad fan mail,"
and that he lost some sleep over calls at all hours of the night,* but
he was never forced to seek protection as was true of Alabama Federal
District Judge Frank Johnson. The Judge, however, underestimated the
Rives interview. Rives said he tried not to be a crusader, but
the growth of his ideas as he gained experience in the school cases moved
him close to the activist stance taken by Judges Brown, Tuttle, and
Wisdom.
*Some of these midnight messages referred to Mrs. Rives as the
"Soon to be Widow Rives."
-260-
impact of the reaction in Montgomery. It will be recalled that Rives
was a very public and social man, who enjoyed the comradeship of friends
and associates and delighted in the club life of Montgomery. Thus, the
withdrawal of his membership by virtually all of the clubs he belonged
to was a particularly bitter blow. Old friends refused to see him, even
71
to the extent of crossing the street to avoid contact with him. Rives'
ostracism from Montgomery society was reinforced by editorials in the
local paper that instructed the people of Montgomery to shun him com-
28
pletely. Rives was treated as a pariah within his own community. He
was almost totally isolated from the life he best loved. District Judge
Johnson was also ostracized from his community. Where Rives was a social
man, Johnson was by nature something of a loner. He had been raised in
the hills in northern Alabama and preferred doing his job and hunting and
fishing. New to the southern part of the state, he never really liked
the social life and suffered much less than Rives. Not content with
this sequestration, some of Montgomery's less civilized citizens completed
the treatment by desecrating the grave of Rives' son.30 Rives truly
became the Job of the Court of Appeals for the Fifth Circuit.
Throughout his years of trial, Rives continued to abide by his oath
of office. He never once allowed this harassment to influence his de-
cisions on the Court. In fact, Rives wrote many of his opinions during
and after the most active period of his personal troubles. It was a
27
Confidential communication.
Read interview.
29
Confidential communication.
30
Confidential communication.
-261-
measure of his courage and dedication that the community pressures never
dissuaded him. Rives' performance is even more remarkable when one
considers that he was, in his own words, no crusader, for at least in
those early years, he shared at least some of the attitudes of Judge
Cameron. The contrast between their performance, however, could not have
been more stark.
Although Judge Rives was a conservative man, his views about the
Courts of Appeals were much more flexible than those of Ben Cameron.
First, Rives felt that the Courts had a tremendous responsibility to
follow and develop law based upon Supreme Court decisions because the
Courts of Appeals were the final forum in over 90 per cent of all cases.
In general, the consistency of the law, and its use as a guide for be-
havior in society, was more important than the result in an individual
case, but in most instances, one could reconcile the two. Rives firmly
believed that "you can't let hard cases make bad law." This reflected
the Judge's essentially traditional attitude toward precedent. Rives,
however, also believed that Courts of Appeals did legislate, and they
had to reconcile themselves to that difficult task. This did not mean
that judges ought to experiment with their own particular attitudes. It
was the duty of the judge to follow the law regardless of his own per-
sonal desires.
Courts of Appeals had to be independent in their judgments, for while
they were national courts which brought the uniform application of federal
standards, they also had to deal with the unique problems and experiences
in different areas of the country. Thus, Courts of Appeals should not
31 „•
Rives interview.
-262-
decide cases based upon what the Supreme Court might do with a case on
appeal. This independence, Rives argued, should be directed toward
dispensing justice fairly to all litigants.32 Federal judges were
uniquely situated to perform this task, as for example, in the desegre-
gation cases in the South. District Judge Frank Johnson had argued that
the Southern Bar had not supported the federal courts as it should have,
but Rives said he understood the lawyers' reluctance. Federal judges were
protected economically from the impact of their unpopularity, but the
local attorney was in a very exposed position.
Rives believed there were no particular problems for the Fifth Cir-
cuit Court of Appeals in the desegregation cases just because it was a
Southern court. The Court was national in scope, impact, and orientation,
so it was natural for there to be some conflict between it and the more
33
parochial District Courts. With regard to his experience as an Appeals
Judge, Rives felt his friendships had not been interfered with, even as
a result of the desegregation controversy.* A judge need not become
32
Even though Rives was no activist or judicial experimenter, his
attachment to fairness and justice led him to support and extol the
Federal Rules of Civil and Appellate Procedure as modified from 1948 on.
As he put it, "These rules have made many of the day-to-day problems of
procedure a matter of administration, to be finally resolved by the
common sense of the trial judge rather than a matter of law, to be set-
tled only after expensive and wearisome appeals. ... The second of the
great accomplishments of the Federal Rules is that they have subordinated
technicalities which might otherwise bar the path of justice." Richard
T. Rives, "A Court of Appeals Judge on the Federal Rules," 17 Ala. Law
324, 328-29 (July, 1956).
33
For example, Rives believed there may have been times when Dis-
trict Judge Whitfield Davidson purposely misunderstood Court of Appeals
decisions. Rives interview.
*Judge Rives' forgiving nature allowed him to overlook the ostracism
to which he was subjected.
-263-
isolated from friends in the Bar as long as social contact was avoided
when they were trying cases before you. He particularly enjoyed working
with all of the Court of Appeals Judges during his quarter century on
the Court. The only thing Rives did not enjoy about his duties was the
administrative responsibility he had as Chief Judge of the Circuit from
1959 to I960.*
The colleagues and observers of Judges Cameron and Rives have pro-
vided an important addition to the relatively limited portrait so far
presented.** Opinions regarding Richard Taylor Rives were rather con-
sistent, but there was substantial disagreement about Ben Cameron, par-
ticularly on a personal level.
Apparently, Judge Hutcheson had no great love for Ben Cameron. He
was too closely allied, Hutcheson believed, with the Mississippi poli-
ticians who had helped secure his seat on the Court. He also felt that
Cameron was not a particularly admirable man and in some ways was weak
and injudicious. It really nettled Hutcheson that Cameron was always
querulous about his health, and this made it unpleasant to serve with
,. 34
him.
John Minor Uisdom considered Ben Cameron to be a fine lawyer, a
real scholar, and a close friend. He saw him as a very strong states
rights man, who had been brought up with constitutional views which
*Rives voluntarily stepped down as Chief Judge after one year, but
remained on active status on the Court. He did not take senior status
until 1966.
**Unlike the other deceased Appeals Judge, Hutcheson, Ben Cameron
wrote very little, and insight is thereby limited. Judge Rives, while
a cooperative subject to interview, was so modest that he obscured
the nature of his contributions. Further, Rives is not in the best of
health, and his memory and energy were rather limited.
34
Allen E. Smith, private interview in Columbia, Missouri, Auqust
15, 1977.
-264-
unfortunately had no validity in the modern world. In his view, Cameron
considered himself the ambassador from Mississippi to the federal courts.
35
As Wisdom put it, Cameron was a great nineteenth century mind.
Chief Judge Brown remembered Cameron as a warm and sweet man, for
whom he had a great deal of affection, even though when he first came on
the Court, Cameron so vociferously disagreed with his views on desegrega-
tion that Brown considered leaving the Court. Brown felt that Cameron was
incapable of movement on civil rights and desegregation, and this nega-
tivism and his illness cost him all of his effectiveness. Cameron's
intransigence was such that in the case which grew out of James Meredith's
integration of the University of Mississippi, he acted alone to set
aside and stay the decisions of a hearing panel. Such action was unheard
of on the Fifth Circuit Court of Appeals. Eventually, Brown and the
other judges came to ignore Cameron on judicial matters.
Judge Elbert Tuttle's recollections of Ben Cameron were much the
same as Judge Brown's. Tuttle remained friendly but avoided him on
matters of dispute, particularly after Cameron had argued that the Four-
teenth Amendment should not apply to the South. Cameron was an inter-
esting man, Tuttle said, for he felt it was a moral obligation to invite
blacks to his home. Cameron also had contributed funds to a Negro
college whose president was also the head of the state NAACP.* Tuttle
did have some administrative difficulties with Cameron over the latter's
35
John Minor Wisdom, private interview in New Orleans, Louisiana,
July 29, 1977.
John R. Brown, private interview in Houston, Texas, Auqust 24,
1977.
*This may be a partial explanation for the NAACP's endorsement of
Cameron for the Court of Appeals.
-265-
appointment to three-judge District Courts in Mississippi when Tuttle
was Chief Judge. After Cameron's remark about the Fourteenth Amendment,
he was never appointed in Mississippi again. Thus, while their personal
relationship remained upon reasonable terms, judicially and philosophi-
cally, they were at opposite poles. Tuttle summed up Cameron by saying,
"he gave the impression of wishing he could start firing on Fort Sumter
37
every Monday morning."
Ben Cameron became a tragic figure on the Court of Appeals for the
Fifth Circuit. A first class legal craftsman, a dedicated attorney, a
classical scholar, and an outdoorsman, Cameron had it in him to be a
Renaissance man. Like the Greek heroes, however, he was destroyed by one
of his most deeply held values, commitment to a traditional past. Un-
fortunately for Cameron and the Court, his was a wasted intellect. His
dedication to an inflexible set of principles, out of touch with a
changing world, cast Cameron in the role of a negative, lonely dissenter
and cost him all his influence as a judge. Ben Cameron never grew beyond
his provincial background.
No one disliked Richard Taylor Rives. Judge Hutcheson felt that
Rives was, very much like himself, a Southern, conservative, and honor-
able man who believed in the basic traditions of the South. Rives was a
dear, sweet man who, despite the limited economic circumstances of his
youth, was a member of the natural aristocracy of the South. Hutcheson
felt that Rives was the sort of man with whom it was an honor to serve.
On
He was quite at ease with Rives as a colleague.
37
Elbert Parr Tuttle, private interview in Atlanta, Georqia, Auqust
26, 1977.
Smith interview.
-266-
Judge Rives also got high marks from John Minor Wisdom as a con-
scientious and hardworking judge, but Wisdom argued that he was hesitant
in civil rights cases at times. According to Wisdom, Rives was not an
activist in civil rights and relied far too long on Judge Parker's dis-
tinction between integration and desegregation. However, in other
respects, he believed Rives to have liberal impulses, for example in
cases dealing with the protection of the rights of the accused. Wisdom
also commented on Rives' dedication to quality on the Fifth Circuit
Court. Judge Rives was very effective as a judge even though he was
quite old and in less than excellent health, and when he felt he could
not perform up to his highest standards, Rives returned cases to the
hearing panel for reassignment. Although he did not particularly enjoy
his administrative duties as Chief Judge, Wisdom believed that Rives
relinquished that position to Elbert Tuttle because he thought Tuttle
would be better at the job. Thus, although Wisdom had some reservations,
he felt that no judge was more "upright and forthright" than Rives, and
when it really mattered, Rives was generally on the right side.40
Chief Judge Brown also had a high opinion of Judge Rives, and called
him one of the most wonderful people he had ever met. Rives always knew
the law, wrote well -documented and constructed opinions, and had a
surprisingly liberal bent on many issues. Certainly Rives was not as
flexible or "reckless" as Brown felt he, Tuttle, and Wisdom had been in
39
Wisdom was critical of Rives' position in refusing to prosecute
Governor Ross Barnett of Mississippi for contempt in the James Meredith
case and for allowing the Montgomery city parks to close rather than
integrate. Wisdom interview.
Ibid.
-267-
devising remedies or sanctions to meet long-standing discrimination.
Unlike the other members of "The Four," Brown said, Rives could not
accept the notion that to protect constitutional rights and correct
legitimate grievances, it might be necessary to give unconstitutional
preferences until a balance was achieved. However, Rives could always
be counted upon to prevent the overt denial of constitutional rights and
to enforce the Supreme Court's mandate in desegregation cases. Rives was
also an incredibly hard worker, and considering the real pain he suf-
fered, his whole life had been given to the Court. Of all his virtues,
Rives was most characterized by a deep and abiding courage and a for-
giving nature that Brown felt was beyond normal capability.
If anything, Judge Tuttle was even stronger in his praise of the
Alabama Judge. Tuttle called Rives "as fine a man as I have ever known,"
and pointed to the value of life tenure in allowing Rives' total objec-
tivity in the desegregation cases. Rives, he said had made extreme
sacrifices for his fine judicial philosophy. Tuttle compared his own
situation in Atlanta, where at least part of the community and more
importantly the newspapers supported him, with that of the hostility and
isolation which Rives faced in Montgomery. Tuttle particularly appreci-
ated Rives' courage, for as a Southerner, Rives made it easier for the
non-Southerners, Tuttle and Brown. Rives was, quite simply, a magnificent
man and judge. He was the epitome of that feature so essential to
justice, judicial independence and integrity.43
41. . .
Brown interview.
42
Tuttle interview.
Ibid.
-268-
The tragedy of Ben Cameron consisted of what he did to himself.
Richard Rives' tragedy consisted of what was done to him. It would have
been easy to adhere to the social mores of Montgomery. Rives, not a
crusader, out of sympathy with vigorous judicial experimentation, and
certainly no social radical, could have taken refuge in procedural
niceties and garnered the support and admiration of his community. As
much an Alabama man as Cameron was a Mississippian, Rives could have
remained the social and political lion of Montgomery. He did not. In-
stead, he adhered to a commitment that had always been the hallmark of
his legal career. Richard Taylor Rives believed in the rule of law, in
obedience to one's oath of office, in doing his job. The Supreme Court
had spoken, and Brown v. Board of Education was the law of the land. The
law was going to be enforced by the Court of Appeals for the Fifth
Circuit and its judge from Alabama. The path Rives took brought him and
his family suffering and pain, notwithstanding his own modesty, kindness,
and forgiving nature. Regardless of the pressures, any plaintiff, black
or white, before Judge Rives could expect fairness and the full measure
of constitutional protection. Rives was the man of courage. He was a
genuine hero.
CHAPTER IX
THE JUDGES (4):
JOHN R. BROWN, ELBERT PARR TUTTLE, AND WARREN L. JONES*
Different in many ways and alike in others, Richard Rives, Ben
Cameron, John Minor Wisdom, and Joseph Hutcheson, Jr., had at least one
thing in common. They were Southerners. They shared a relationship with
that special past which is the South. John R. Brown, Elbert Parr Tuttle,
and Warren L. Jones were not from the South. Brown and Jones were raised
in Nebraska and Tuttle grew up in California and Hawaii. Their youth,
education, and early experiences took place in different regions of the
country, but they did have some things in common. All three arrived in
the South at the start of their legal careers, and all of them were
Republicans from their earliest political interests.**
If Brown, Tuttle, and Jones were different from the Southerners,
there was at least as great a contrast within the group. From diverse
backgrounds, Brown and Tuttle developed similar judicial attitudes, par-
ticularly on civil rights matters. Jones, whose youth was much like
Brown's, developed judicial attitudes which were more like Ben Cameron's
*Warren L. Jones, 1895-. Appointed to Fifth Circuit 1955. Elbert
Parr Tuttle, 1897-. Appointed to Fifth Circuit 1954. John R. Brown,
1909-. Appointed to Fifth Circuit 1955.
**Elbert Tuttle settled in Atlanta in 1923, Warren Jones came to
Jacksonville in 1925, and John Brown moved to Houston in 1932. Regard-
less of their place of birth, these three men became Southern judges.
-269-
-270-
than any of the other judges, if not in his substantive beliefs, at least
in his view of the role of the courts. Brown and Tuttle were both
activists, liberal in outlook and innovative in their approach. Judge
Jones became an archtypal appeals judge, basically conservative and com-
mitted to following precedent.
Present Chief Judge John R. Brown grew up in the small Southwestern
Nebraska community of Holdrege. His parents had received very little
formal education, but his father was successful in the general merchandise
business and his mother managed to raise seven children. Brown's youth
was spent in "the normal pursuits of a small town boy," and he combined
an active outdoor life with good grades in what he considered an excel-
lent local school system. He was an accomplished debater in school
because he enjoyed speaking and had developed a very large vocabulary.
He often displayed this talent for his father in "discussions" with the
elder Brown's friends. By coincidence, Brown's boyhood hero was Abraham
Lincoln, who had generated some reputation with his own debating abilities.
Brown majored in business administration at the University of
Nebraska. Brown's father had convinced him to become a lawyer, and the
Judge enrolled in a six-year program that combined undergraduate and
legal education. While in college, Brown concentrated on history,
economics, and philosophy, and avoided science and mathematics as much
as possible. Before Brown started law school, he transferred to the
University of Michigan, where he made straight A's and was named to the
Law Review. He took the general course of study, but repeated his college
John R. Brown, private interview in Houston, Texas, Auqust 24,
1977.
-271-
emphasis by avoiding as many of the technical courses as he could. He
also gained practical experience, working two summers with the Holdrege
law firm of a Clarence Davis. Brown believed his law school experience
was an excellent preparation, for it provided a deep study in theory and
concept. He felt that with a grounding in the basics, one could then
2
master the law in any field through individual study and experience.
Brown graduated with his law degree in 1932, at the depths of the
Great Depression. There were no opportunities in Holdrege, so he decided
to look for a job in Texas. He had no connections and knew no one, so
he went from one major city to another, calling the law firms listed in
the phone book.* Brown was well received and got a lot of encouragement,
but there were no jobs to be had in Dallas, Fort Worth, San Antonio,
Corpus Christi, and so on. Finally, in Houston, Brown was attracted
to a firm because of what he said was its strange name, Royston and Rayzor.
The firm specialized in Admiralty law, a field about which Brown knew
absolutely nothing. He was hired by Newton Rayzor and began work in a
small branch office the firm maintained in Galveston, Texas. Brown spent
most of his time learning Admiralty and Maritime law and studying for the
Texas Bar examination.**
Brown did well, however, as he found the study of maritime prin-
ciples in the federal and state courts fascinating, and he participated
in some cases which developed new principles in the field. During World
2lbid.
*This is terrifying way to look for a law job even in the best of
times. In 1932, such a method revealed either naivety or unbounded
optimism.
**0n the eve of the Bar Exam, Brown learned he would not be required
to take the Exam to be admitted to practice in Texas.
-272-
War II, Brown spent four years overseas, putting his legal experience to
good use. He served in Australia on a Maritime Claims Assessing Com-
mission, in Manila as a cargo movement officer, and as port commander at
Port Sabu and Leyte in the Philippines. Brown had contact with high
level officials in the shipping business, and dealt with enlisted men
from all walks of life. He found the experience to be a maturing one
and learned that large organizations could be operated efficiently. Brown
also felt his time in the service helped him overcome a tendency toward
procrastination, which lost him some cases when he was a young lawyer.
At the end of the war, Brown returned to Royston and Rayzor, and
spent the next three years working on litigation which had arisen out of
the Texas City Disaster, primarily gathering and organizing documents and
data and scheduling the witnesses. Brown remained with the firm, estab-
lishing himself as one of the leading admiralty lawyers in the country,
until he was named to the Court of Appeals in 1955.
John Brown had been a Nebraska Republican. He became active in
politics in Texas around 1948, and served on the state GOP Committee.
In 1950, he was working for Eisenhower. The Texas delegation, like the
Louisiana delegation, was involved in a challenge at the 1952 Chicago
Convention, and Brown helped William Rogers prepare the case for the
Eisenhower delegates. During the general election, Brown campaigned for
Eisenhower and became the Harris County Republican Chairman. Brown had
always wanted to be a judge and he wanted a federal appointment even
though it involved a substantial economic sacrifice. His appointment
3
At the time he was appointed, federal judges were being paid
$17,500. In his last year of private practice, Brown earned close to
$60,000. Ibid.
-273-
to the Court of Appeals was based both on his reputation as an attorney
and his loyal service to the Republican Party.
Although Elbert Tuttle was born in California, he spent the first
six or seven years of his life in Washington, D.C., where his father was
a clerk with the War Department. Tuttle's father then took a job with
the Immigration Service and the family moved to Los Angeles. Tuttle
started school there, and when his father worked on the Mexican border in
1906 and 1907, he was taught by his mother.4 Tuttle's father then took a
job with the Hawaiian Sugar Planters Association, and the family moved to
Honolulu. Tuttle went to school at the Punahou School, a private academy
that had been founded in 1841, and was the school to which the leading
white families sent their children. Punahou School became an aristocratic
institution of sorts, as the best families of the Islands enrolled their
children.
As a youngster growing up in Hawaii, Tuttle had an almost idyllic
life. He did well enough in school, but spent more time in extracur-
ricular pursuits. Tuttle took part in all of the school sports, managed
the school magazine, and wrote the school news for the Honolulu newspaper.
Tuttle and his older brother, Malcolm, helped to revive the sports of
surfing and outrigger canoe racing, and they spent an inordinate amount
of time at Waikiki Beach.* His life was not all recreation, however, for
Judge Tuttle said that his mother was a very broad-minded woman who
had little prejudice, but he was taught at home so he would not have to
go to school with Mexican children. When the family moved to Honolulu,
Tuttle was placed in a private school, but this time the children to be
avoided were "natives." Elbert Parr Tuttle, private interview in Atlanta,
Georgia, August 26, 1977.
*This vigorous early life has served Judge Tuttle well. On the day
of our interview in Atlanta, it was rather damp and raw. The interview
was scheduled to begin at 10:00 a.m. Judge Tuttle arrived about ten
minutes late. He apologized, for he had just completed a quick nine
holes of golf. The Judge is eighty years of age.
-274-
Tuttle developed a rather specific ambition quite early. Although his
father had not gone to college, his interests were catholic, and he was
a storehouse of information. Tuttle and his father often discussed
politics, and the young man learned a good deal about government struc-
ture in Hawaii, which was without home rule. He developed an interest
in politics and put it to practice, becoming the president of his class
and winning a debate on the affirmative side on the issue of Hawaiian
statehood. Tuttle decided to become a lawyer, go into politics, and
become the Senator from Hawaii.
Elbert Tuttle went to college and law school at Cornell University
on the advice of his high school German teacher. Tuttle's brother
Malcolm wanted to be an engineer, and the teacher told them that Cornell
offered the best combination of law and engineering. Tuttle concen-
trated on history and political science, but by his own admission, did
very little studying. "In four years of college, I saw the inside of
the library three of four times." Tuttle spent most of his time working
on the college newspaper, of which he became editor-in-chief. He was
also active in campus politics and "the party circuit" at Cornell. While
waiting to be accepted to law school, he worked on newspapers in New
York and Washington.
By the end of his first term in law school, Tuttle was first in his
class. Although he and his new wife did not neglect their social life,
Tuttle was motivated to work harder to maintain his high marks. He
learned quickly and did well enough to work on the side as a publicity man
5
Tuttle interview.
6Ibid.
-275-
and fund raiser for Cornell's YMCA campaign. Tuttle wanted a wide-
reaching general practice, and he and his brother-in-law, Bill Sutherland,
decided to go into practice together. Seeking a warm, pleasant climate,
Tuttle claims that they just picked Atlanta on a map.* Tuttle moved
there in 1923 and spent the first six months as an associate with the
firm of Anderson, Rountree and Crenshaw, at $175 per month. In the mean-
while Sutherland had gone to work for Jones, Evins and Moore, and then
Miller and Chevalier, tax specialists, in Washington, D.C. His $2,500
earnings were enough to pay for rent and a secretary for one year, and
the two young lawyers opened their own firm.
Elbert Tuttle and Bill Sutherland began their practice in Atlanta in
1924. By informal agreement, they split their duties, with Sutherland
concentrating on tax work, and Tuttle handling the general practice.
The firm did tax work on referral from other law firms, and Tuttle had
to participate in tax cases as well. He also managed to do a good deal
of general trial work and handle estates and trusts as well. During
World War II, Tuttle served in Europe and retired with the rank of
Brigadier General. Immediately afterwards, Tuttle and Sutherland opened
an office in Washington, D.C, to handle the heavy volume of their federal
tax and administrative practice. In 1948 he was elected President of the
Atlanta Bar. When President Eisenhower took office in 1953, Tuttle was
selected as the General Counsel for the Treasury Department. In that
capacity, Tuttle prepared Treasury's position papers and supervised all
♦Atlanta was in the South, a state capital, and a growing city,
centrally located. Ibid.
7Ibid.
-276-
the lawyers within the Department. He was also the Treasury Department
representative on the National Security Council.8 Tuttle left this
position to take his seat on the Court of Appeals in 1954.
Judge Tuttle's family had been Republican, but Tuttle's allegiance
was also based on his distaste for Georgia Democratic politics. The
Democratic Party was the personal preserve of the Governor, and there
was no real organization. The voters had little voice because of this
personal tradition and the county unit rule. A Democratic oligarchy ran
the state and ran it lily-white, having effectively disenfranchised
Georgia blacks. As the Republican State Chairman, Tuttle hoped to open
the Party to blacks and to build a real organization, believing that
the Republican Party in Georgia represented the only potential effective
n
liberal voice in the state.
Judge Tuttle led the Georgia delegation for Eisenhower at the 1952
Convention and was the Vice-Chairman of the Southern Committee for
Eisenhower. When John Minor Wisdom turned down the offer of the newly
created seat on the Fifth Circuit Court of Appeals, William Rogers came
to Tuttle with the offer. Tuttle knew very little about the Court of
Appeals; he had children to educate; and was reluctant to take the posi-
tion which would cut his income in half. Rogers virtually begged him to
take the job, and after his family urged him to do so, Tuttle agreed.
Tuttle argued his appointment was no particular recognition of his talents,
Tuttle believed the distinguishing characteristic of the Eisenhower
group was its inexperience in the ways of Washington. He felt this made
them more careful with "the rules of government." For example, he said
there was very little politics involved in the operation of the Treasury
Department. Ibid.
g
Ibid.
-277-
but rather was his by a process of elimination. As he put it, "I had
no difficulty getting appointed to the Court of Appeals, because I was
the only Republican in Georgia who could read and write who had a law
degree." His choice was a happy one, for after a quarter of a century
on the bench, he believed that being a Court of Appeals Judge was the
greatest job in the world.
Warren L. Jones was born and raised in the small town of Gordon,
Nebraska. He described his youth as "typical of a small town boy at that
time." He was a hard working youngster, and while still in high school,
owned and operated a horse and wagon delivery service for local retail
merchants. After he graduated from High School, Judge Jones worked for
several wholesale and retail grocery concerns in Lincoln, Nebraska, and
Van Tassell, Wyoming. During the First World War, Jones served as a
non-commissioned officer in the Medical Training Corps at Fort Riley,
Kansas. After the war, he worked for his brother in the Bank of Van
Tassell in Wyoming. He remained in Wyoming until 1921, when he decided
1?
to go to law school .
Warren Jones did not attend college before he entered law school.
He was working in his brother's bank in Van Tassell, Wyoming, when he
decided to become an attorney. He chose the University of Denver because
it was the nearest law school. Jones' success at law school was the
result of the primary lesson he learned while there, the necessity of
Ibid.
Warren L. Jones, private interview in Jacksonville, Florida, July
18, 1977. J
12
Ibid- Judge Jones declined to discuss the substance of his life
and judicial role. He reviewed the notes of the interview and limited
the use of its content.
-278-
1 3
hard work. During his last year in school and prior to his admission
to the Colorado Bar, Jones worked as a Deputy District Attorney in the
office of the Denver District Attorney. Then with two of his classmates
he opened his own firm in Denver. They handled enough cases to survive,
but the fees were too small to support the firm. Jones decided to re-
locate, and when he learned of an opening in the firm of Fleming, Hamil-
ton, Diver and Lichliter,* he moved to Jacksonville, Florida, in 1925.
Judge Jones practiced law in Jacksonville for thirty years before
he was named to the Court of Appeals in 1955. Jones specialized in
Estates and Trusts, Banking Law, and Timberlands Title disputes, and
became the firm's senior partner. The Judge was very active in Bar
Association affairs, served on many committees, and eventually became
President of the Jacksonville Bar in 1939 and the Florida Bar in 1944.
Jones' primary interest outside of his profession was Lincolniana. His
grandfather had known Lincoln personally and willed thirty books on
Lincoln to the Judge. Jones collected some six thousand books and pam-
phlets on Lincoln which he donated to Louisiana State University.
Judge Jones maintained that his activity in politics had been very
limited. He had been active in Republican politics in Denver, but de-
cided that political activity and a legal career was an inappropriate
combination.** The route to political inactivity in Florida in the 1920 ' s
13Ibid.
*The firm is now known as Ma honey, Hadlow and Adams, and is the
largest law office in North Florida.
Ibid.
**Judge Jones was reluctant to discuss politics. He asked that no
reference be made to it in connection with his appointment to the Court
of Appeals. I honor that request as much as possible but some explanation
for that nomination is necessary. Nothing in what the Judge said in con-
fidence reflects poorly upon him.
-279-
was to be registered as a Republican, for all of the action was found in
the Democratic primaries. Jones remained a Republican, and personally
knew many of the national GOP spokesmen. When he was appointed by
Eisenhower in 1955, Jones took the seat on the Court of Appeals that had
15
been held by Louis Strum.
Brown, Tuttle, and Jones' views of the Brown decisions and desegre-
gation seem to have been alike in terms of broad policy. About the pro-
cess of implementation and what that required of the judicial system,
Judge Jones disagreed quite clearly with Brown and Tuttle. They adopted
the activist role with relish, while Jones held to a more passive, more
traditional attitude.*
Judge Brown felt that desegregation was long overdue in the schools
and in society. The Brown decision was one hundred years late, but was
about as good as could be expected from a Supreme Court which had little
previous experience in public school desegregation cases. Nevertheless,
it may have been a mistake for the Supreme Court to openly declare that
the problem of desegregation would take a long time to solve. Brown felt
this language gave the delayers a ready made argument. It was not until
well after Brown was decided that he himself felt a real sense of com-
mitment. He came to realize that it was naive to believe that Southerners
Ibid.
^Throughout the chapters on the judges, conclusions drawn by the
writer have been based directly upon the comments of the judges them-
selves, observers (both identified and confidential), the judges' per-
formance in the cases, and published remarks by these men. In the case
of Warren Jones, his reticence and limited participation in the decisions
makes the process rather difficult. As a result, heavier reliance than
usual has been placed on other peoples' comments about him, most of which
were confidential. At times, a good deal has been read into rather
brief statements, and although the conclusions are supported by the
limited evidence available, there has admittedly been considerable guess-
work involved.
-280-
would immediately obey the law simply because the Supreme Court had made
its decision. However, Judge Brown was very surprised with the reaction
in Little Rock, for he believed that city would desegregate with little
opposition. He did feel his attitude was vindicated in some respects,
for considering the heavy volume of cases and what transpired in other
sections of the country, desegregation was accomplished in the South with
relatively little violence.
In each of the cases discussed in this study, Judge Brown held for
the school children attempting to integrate the schools. Although the
situation immediately after Brown was tranquil, he felt the almost uni-
form reaction of the Texas Bar was hostile. As a result, the earliest
desegregation decisions in Texas were designed primarily to maintain the
peace rather than integrate the schools. What was most fascinating,
though, was "how the courts grew in the perception of the problems and
the remedies needed." For example, Judge Rives had favored Pupil
Placement Plans, and while Brown went along with Rives at first, he came
to see that such remedies were insufficient. Unlike Rives, he began to
see that only affirmative remedies would be effective to enforce the law.
In the New Orleans situation, for example, Brown felt that some of the
Louisiana legislation was plausible if one did not look behind the
language. The intent to prevent integration was clear, however, and he
convinced the panel to pierce the state's evasions. As Brown put it,
the only way to give meaning to the law was to let "figures speak and
Courts listen." The greatest failure in desegregation, Brown felt,
Brown interview.
Ibid.
-281-
was that the federal courts were virtually on their own. The failure
of Congress to enact any solid legislation prior to 1964 resulted in not
only a lack of Congressional leadership but a negative influence.
According to John Brown, the Courts of Appeals articulated the law
so that people could conform their conduct. Thus, judges were necessarily
involved in clarifying the law to make it understandable. This meant that
legislation in the Courts of Appeals was inevitable and that judges had
a creative role. Judge Brown was not uncomfortable with this requirement,
for in his view it could not be avoided. "I don't think you can adjudi-
18
cate without determining policy."
The goal of this judicial process was always to do justice and give
the relief to which the litigants are entitled. This required arriving
at a rather delicate balance between what the law required and what the
factual situation demanded. One often had to strain to give relief, but
judges had to try to avoid putting their deeply held beliefs in opposition
to clear, positive statutes. Brown admitted that he had sometimes over-
ridden statutes to right a wrong, but that this impulse was what he
believed made good judges. As to the impact of precedent, it was not
surprising that Brown believed that the "construction of a statute should
be fairly free of stare decisis when conditions are really changed."
The particular job of the Court of Appeals in the desegregation cases
was to secure the rights of black school children. This was an example
of the real importance of the judicial approach, and that was to correct
1 8
Remarks of Judge Brown at a Panel Discussion of Paul Oberst's
paper, "The Supreme Court and States Rights" at the Second Annual Alumni
Seminar of the University of Kentucky in Lexington, Kentucky, June, 1959,
48 Ky. L.J. 63 (Fall, 1959), p. 93.
19D ....
Brown interview.
-282-
wrongs being done in the name of the law. As Brown saw it, the only real
problem the Court had with the desegregation cases was their very heavy
volume. This problem was the result of the relatively easy legal nature
of the litigation, for the issues were not complex in De Jure segregation.
His position, and that of the Court of Appeals, was quite simple. Judge
Brown believed that most of the issues that came before the Court, re-
gardless of their substance, essentially were matters of due process. If
a statute or course of action interfered with desegregation, it was
invalid. In civil rights matters, Brown felt that the national or
federal nature of the Court of Appeals was evident. Brown believed that
our system of federalism meant there were rights of national citizen-
20
ship, and the Court of Appeals was simply applying the standards of
national citizenship to localized problems.
Judge Brown viewed himself as a liberal, which meant that there were
many injustices in the world that remained to be corrected. In sharp
distinction to his fellow Houstonian, Judge Hutcheson, Brown was not
anti-government. Life was complicated, and the real failure of govern-
ment, particularly of the legislative branch, lay in not taking action
when it should. As a result of this legislative neglect or lack of
fortitude, the federal courts were too often saddled with finding the
solution to too many social problems. Although Brown believed it was
entirely appropriate that judges be asked to deal with difficult and
controversial issues, there was a limit to their capacity. In the
absence of strong legislative leadership, the Judge said some problems
simply could not be solved in the Courts.
20Brown, 48 Ky. L.J. 95.
-283-
Brown clearly enjoyed being a Circuit Judge. He derived great
satisfaction from being "an instrument for improvement" and being able
to make a meaningful contribution to the betterment of society. The
life was also never boring, for one dealt with an infinite variety of
problems, and meeting this responsibility was very rewarding. Being a
judge also broadened acquaintances within the Bar and gave one the
opportunity to have real impact on reforms within the profession. One
need not suffer isolation from the members of the Bar, as long as judges
did not mind a little criticism and did not try to act like a saint.
Finally, the Judge candidly admitted that he enjoyed the social pres-
tige which attended what he felt was an honorable position. A social
man who enjoyed the company of other lawyers, he took pleasure in the
natural tendency of lawyers to seek the company of influential judges.
The only feature of judicial life that Brown disliked was that he
felt overworked. The extra work required by the heavy burden of adminis-
trative duties he performed as Chief Judge of the Fifth Circuit, how-
ever, provided some compensations. While being Chief Judge gave him no
additional impact on judicial matters, it required more personal contact
with the other jedges and demanded that he be more accessable. The
large amount of litigation in the Fifth Circuit also gave Judge Brown
the opportunity to employ his innovative administrative talents. He was
justifiably proud of the screening system that he devised to attack
court congestion.*
*This screening process, described in Chapter I, has been criti-
cized by many lawyers and judges for overemphasizing speed at the
expense of thoroughness, but it has been supported by the Supreme
Court.
-284-
Judge Brown took great satisfaction in the performance of the Fifth
Circuit Court of Appeals. While he felt its quality in other fields,
such as business law, had been slighted, Brown believed its foremost
accomplishment was taking the lead in the school desegregation and voting
rights cases. In the absence of legislative or Presidential action, the
effort to secure full constitutional rights for blacks took place
primarily in the Fifth Circuit. Although the Supreme Court took the
large step in setting policy, it provided very little guidance. It was
the Fifth Circuit which performed the task of demonstrating to school
boards, state officials, and recalcitrant District Courts, that devious
means could not be used to avoid what the Constitution demanded. This
substantive accomplishment, Brown felt, was accompanied by the most
spectacular innovations in procedure which made justice real by making
21
it speedy.
Elbert Tuttle's reaction to the Brown decisions was quite like that
of Judge Brown. His immediate reaction was that although the change
would take time, there would be no real problem since the Supreme Court
had spoken. He did not anticipate either the degree of opposition or
the volume of litigation that was generated. Tuttle maintained that
he was neither a scholar nor a student of the Supreme Court, but he was
surprised that Brown was decided on the equal protection argument. He
personally had no opposition to integration and was happy to enforce the
Brown decision. Tuttle's only question about Brown was the "all de-
liberate speed" language in the implementing decision. Tuttle felt some
time would be necessary, but he believed the Supreme Court's language
was a bit more ambiguous than it needed to be.
21 D
Brown interview.
-285-
Judge Tuttle sat in both the Dallas and New Orleans cases, and was
particularly active in the latter case. It was a difficult variety of
litigation, because its primary object was delay. The defendants in the
desegregation suits knew they had little chance of winning. Each in-
dividual school district litigated desegregation even though, for ex-
ample, an identical suit may have been decided against a neighboring
school district. Black plaintiffs were forced to bring uctions all over
a state, since school boards were not directed to comply with clearly
applicable decisions unless they were parties to the specific suit. In
the New Orleans case, Tuttle constantly struck down the "futile" efforts
to avoid desegregation through new legislation. Unlike Judge Wisdom,
Tuttle felt the results of the case were significant even though the
Court accepted a limited amount of desegregation to satisfy the suit.
Although he was aware of the hardships suffered by the token black stu-
dents, Tuttle felt it was of paramount importance to break the system.
OO
The stone wall of Southern practice had to be breached.
Tuttle maintained that he tried to allow school boards and local
District Courts sufficient time to work out the very real problems they
had, but he felt that three of four years was certainly sufficient time
to at least initiate desegregation programs. He came to favor affirma-
tive action remedies, because public officials looked only to their
limited self-interests and the Southern Bar did not support upholding the
law as declared by the Supreme Court.23 Tuttle felt that District Judges
22
Tuttle interview.
23
Tuttle was not intolerant, for he recognized that one of the
factors enabling him to act independently was the life tenure federal
judges enjoyed. Ibid.
-286-
often did not go far enough in implementing clear legal principles, and
that a small minority tried to actively delay the cases. Tuttle recalled
that in one instance he had had to issue a writ of mandamus to force a
District Judge to proceed with a case. Thus, while Judge Tuttle was
patient and willing to accept less in the way of integration than might
seem appropriate, he was also ready to take extraordinary steps to see
that Brown was enforced. His commitment to the principles embodied in
that decision was clear, and as he put it, in all the years of hearing
such cases, he "never heard a convincing argument from the segrega-
24
tionists.
Elbert Tuttle's motivation and his view of the role of the Courts
of Appeals was almost identical to that of John Brown. He emphasized the
fact that in the vast majority of cases, the Court of Appeals was the
forum of last resort; thus it had the twin responsibility of resolving
individual litigants' rights and creating developments in the law that
affected everyone. Therefore, part of the role of such courts was to
make new law on a broad range of issues. Judges were inevitably in-
volved in legislation, even if it was interstitial. At the heart of
this essentially creative process was the desire to do justice.
The Courts of Appeals also served as filters for the Supreme Court.
In matters of civil rights, for example, where the Supreme Court had not
ruled, the Court of Appeals "should extend the law as far as we felt
25
the Supreme Court would go." This would afford relief for the plain-
tiffs and avoid overloading the calendar of the Supreme Court
24Ibid.
25,,..,
Ibid.
-287-
which could indicate its approval of the decision by simply denying
certiorari .
In the matter of desegregation, the Court of Appeals for the Fifth
Circuit had very clear and specific responsibilities. The Court had to
be the primary guarantor of the constitutional rights for which no one
else had acted. While he found it both inappropriate and unfortunate
that the Court was forced to become so deeply involved in the operation
of the schools, the rights of the plaintiffs required that activity.
Like Brown, he saw a major cause of difficulty in the fact that each case
had to be fought out, school district by school district. This process
increased the delay in enforcement of desegregation, which was already
characteristic of the litigation. The Fifth Circuit therefore had to
be willing to innovate and use new techniques to protect constitutional
rights. Tuttle argued that:
It devolved upon the appellate courts to a greater
extent than had theretofore been usual in American
jurisprudence, to fashion means to give effect to
principles of law, once firmly established, much
more rapidly than would be possible if full sway were
allowed to the normal procedural maneuvering. 26
The Fifth Circuit, therefore, mandated prompt hearings in the District
Courts, accelerated the setting of appeals in the Court of Appeals, pro-
vided temporary relief through the issuance of injunctions, and issued
stays against adverse District Court rulings in school desegregation and
27
voting rights cases. When delay was no longer legitimate, the Court
of Appeals had to accelerate the judicial process.
Elbert Parr Tuttle, "Equality and the Vote," 41 N.Y.U. L. Rev.
245 (April, 1966), p. 257.
27Ibid., p. 264.
-288-
Tuttle's judicial philosophy was decidedly activist. He described
himself as a liberal judge, and he defined that term as a judge who,
when presented with a record that showed injustice, wanted to help, to
correct the abuse. Judges had to correct injustice unless they were
forbidden to do so by law. In dealing with these situations, where
adverse precedent was clear and absolute, the liberal judge had only two
choices. He might seek to change it within the limits of the law, or
if this was impossible, the judge had to learn to live with the prece-
dent. It was in these difficult cases, where justice and law seemed to
conflict, that the en banc proceeding was most appropriate. The key, for
Tuttle, was doing right unless you were prohibited.
Tuttle often found himself straining at the law to do justice. He
had no hesitance in "advancing the Art of Jurisprudence," for much in law
was imprecise. For example, Tuttle said that while Brown dealt only
with the schools, the Fifth Circuit Court expanded its application even
where there was no Supreme Court authority. This was not, in his view,
outside the tradition of the Common Law, for it had developed through the
28
advancement of new concepts of just and humane treatment.
There was nothing about being a Court of Appeals Judge that Tuttle
disliked. The job was without parallel in terms of personal satisfaction.
Being Chief Judge added no weight or influence on decisions, and, in fact
Tuttle interview. Tuttle referred to the criticism the Court
received from the Southern Press, and at times from Judge Cameron, for
always deciding cases in favor of the black plaintiffs as an example of
misunderstanding this progressive nature of the Common Law. His ex-
planation for the pattern of decisions was quite simple, the plaintiffs
had always been right. As he put it, "Anyone who couldn't make a case
for the plaintiff in a racial discrimination case shouldn't have
graduated from law school."
-289-
unpopular administrative actions could reduce one's influence, but there
was a real sense of accomplishment in providing leadership for the Court.
Judges were very human, and he mentioned the deep pleasure he felt in
defeating men like Leander Perez on desegregation. What Tuttle liked
most, and what he felt was most important, was the independence life
tenure gave judges in a position where one could "work to achieve a
public service in the administration of justice and creating developments
29
in the law for all." That was what was important, Tuttle said, the
30
chance to do something worthwhile.
Ibid.
30
Judge Tuttle's valuation of his job as a chance to serve, to do
something worthwhile, is reflected in a commencement address he gave at
the Emory University Law School in the mid-1950's. Though he admitted it
might sound preachy, it was a genuine statement of his commitment. He
said:
"The professional man is in essence one who provides service. But
the service he renders is something more than that of the laborer, even
the skilled laborer. It is a service that wells up from the entire com-
plex of his personality. True, some specialized and highly developed
techniques may be included, but their mode of expression is given its
deepest meaning by the personality of the practitioner. In a very real
sense his professional service cannot be separate from his personal being.
He has no goods to sell, no land to till. His only asset is himself. It
turns out that there is no right price for service, for what is a share of
a man worth? If he does not contain the quality of integrity, he is
worthless. If he does he is priceless. The value is either nothing or
it is infinite.
So do not try to set a price on yourselves. Do not measure out your
professional services on an apothecaries scale and say, 'Only this for
so much.' Do not debase yourselves by equating your souls to what they
will bring in the market. Do not be a miser, hoarding your talents and
abilities and knowledge, either among yourselves or in your dealings with
your cl ients.
Rather be reckless and spendthrift, pouring out your talent to all
to whom it can be of service. Throw it away, waste it, and in the
spending it will be increased. Do not keep a watchful eye lest you slip,
and give away a little bit of what you might have sold. Like love,
talent is only useful in its expenditure, and it is never exhausted.
Certain it is that man must eat; so set what price you must on your
service. But never confuse the performance, which is great, with the
compensation, be it money, power, or fame, which is trivial." Elbert
Parr Tuttle, "Reflections on the Law of Habeas Corpus," 22 J. Pub. L.
325, 333-34 (1973).
-290-
Not surprisingly, Judge Tuttle took great pride in the accomplish-
ments of the Court of Appeals for the Fifth Circuit. Both as one of its
members and as Chief Judge, Tuttle felt the Court had been operated with
efficiency and performed well under the burden of the heaviest caseload
in the country, tore importantly, Tuttle maintained, from 1956 to 1972
the Court made the great difference in breaking down the legal bars to
integration. The Fifth Circuit led that advance to more just and humane
treatment, largely either in advance or in the absence of Supreme Court
guidance. During the critical years, the crucial asset of the Court was
its near unanimity in favor of civil rights. Until all of the major
legal principles were settled, there had been no effective dissent.
Tu.ttle's greatest personal pride was the concrete result, the real and
immediate improvement in the lives of the black plaintiffs who were
31
fighting for their rights.
Warren Jones sat in all three of the cases discussed, but he wrote
no opinions and did not indicate his position publicly. He felt that
"the Brown decision of the Supreme Court was not wrong," but "the
32
decision should have been one word, affirmed." The Court, in his view,
had legislated Plessy v. Ferguson out of existence. He did feel that the
Brown decision relied too heavily on sociology, but he obviously accepted
the decision, for he did not dissent from panel decisions based on the
clear holding of that case. If a law or practice required racial segre-
gation in the schools, Jones held it to be invalid.
Jones provided a marked contrast to Judges Brown and Tuttle both in
his attitude toward the Court of Appeals and to being a judge, and his
31
Tuttle interview.
32
Jones interview.
-291-
willingness to discuss these matters. His conservatism was one which
implied rather limited functions for the judicial system. In the
federal system, Jones argued there were occasions when the Supreme Court
33
had to take what he called a "revisionist" role. District Courts and
Courts of Appeals should never adopt this stance, however, for their
purpose was much more restricted. District Courts were intended to hear
cases and reach decisions based on strict adherence to stare decisis.
The duty of the Courts of Appeals was to "find the law," that is to
decide simply if the District Court decision was right or wrong according
to the precedents. "Reliance on precedent should be avoided only when
34
doing so would provide a ridiculous result." The rule for judges then
was obey the precedents, tempered only by the demands of realism.
Jones' view of the judicial system placed judges and courts within
a strictly legal setting, for he adamantly believed that the federal
courts should not be on the forefront of social change. Courts of Appeals
35
judges should not take on the mantle of crusaders for certain causes;
strict objectivity was the essential requirement of the judicial tempera-
ment. Obviously, for Jones, the role of the courts in all varieties of
cases was passive, for they were charged with the duty of applying
specific, well-established principles only to those disputes brought
before the Court and not the general condition of society. These beliefs
were squarely within the main stream of American Jurisprudence, and
33
Ibid. The Judge felt revisionist was a more appropriate word in
this instance than legislative, although that was clearly what he meant.
34.,..
Ibid.
35
DIbid.
-292-
would probably be supported by a majority of presently serving appellate
judges. His insistence on obedience to precedent is certainly a major
feature of traditional American legal education.
Although he offered no specific explanation, Jones felt that the
life of a federal judge was a good one. He did not feel that the Court
of Appeals for the Fifth Circuit was unique on matters of substance, but
rather because of its heavy caseload and the size of the Circuit. This
led to the development of procedures which were "in some respects dif-
ferent from those which are generally prevalent." Jones did not in-
dicate whether or not he approved of these innovations.
As was true with the other judges, a great deal about Brown, Tuttle,
and Jones can be learned from the views of colleagues and observers.*
These observations leave one with the obvious impression that John Brown
and Elbert Tuttle were extraordinary men and judges, and that Warren
Jones was a solid, reliable man, suffering only in comparison with the
unusual talents and character of the others.
Judge Hutcheson was ambivalent in his feelings about John Brown. At
least from a philosophical point of view, he must have had some reserva-
tions about Brown. Although both were activist judges, Judge Hutcheson's
bent was quite conservative in practice, while Brown was an avid innova-
tor. Judge Brown's aggressive and somewhat flamboyant style may have
caused Hutcheson some discomfort, for he was a rather severe and
36 T, . ,
Ibid.
*Three of the men interviewed did not comment upon the members of
the Court. Judge Jones declined to make any statements about the men
he served with on the Court. Judge Rives limited his remarks to saying
they were all fine men. Judge Coleman felt he could not speak about
Ben Cameron's personal feelings about his colleagues.
-293-
straight-laced individual. Certainly their social backgrounds were a
contrast, Hutcheson the Texan, the frontier aristocrat, and Brown, the
37
small-town Midwesterner. There was no information, however, that would
lead one to believe that Hutcheson did not value Brown's judicial and
administrative abilities. It was Hutcheson, for example, who had first
asked Brown to take the responsibility for assigning judges to hearing
panels when Brown had only been on the Court of Appeals for a short time.
Elbert Tuttle thought highly of Judge Brown, particularly his
abilities as an administrator. Tuttle thought Brown was imaginative and
hard-working, and he credited Judge Brown as the force which had made a
fifteen-judge court work as a unit. Tuttle believed his judicial
philosophy was very much the same as Brown's, particularly Brown's
38
liberal position on matters of civil rights and race. John Minor
Wisdom agreed with this assessment, for he believed Brown usually came
39
out on the right" side in his decisions.
John Brown's greatest contribution may well have come after the
period of this study as Chief Judge of the Fifth Circuit Court of Appeals,
a position he still holds. He has established himself as the premier
judicial administrator in the country, for he has been a pioneer in
procedural reforms. He pushes and cajoles his judges and keeps the
37
Dean Allen E. Smith, private interview in Columbia, Missouri,
August, 15, 1977.
3ft
Tuttle interview.
39
John Minor Wisdom, private interview in New Orleans, Louisiana,
July 29, 1977.
40
Dean Frank T. Read, private interview in Tulsa, Oklahoma, Septem-
ber 7, 1977.
-294-
mountainous caseload of the Fifth Circuit moving. His methods are often
41
abrupt, but he gets the work of his Court done. His success in this
area, however, should not obscure his substantive contribution in the
desegregation cases. His Republicanism was of the Ripon Society brand,
and his commitment to civil rights was as deep as any member of the
Court. His forcefulness in administration was reflected in his attitude
toward the school cases; it was time to get moving. To this end, Brown
was never hesitant to fashion extraordinary remedies to provide relief.
John Brown had that rare combination of administrative and technical skill
and humane instincts for fuller justice for all.
It would be impossible to overestimate the esteem in which Elbert
Parr Tuttle has been held. Unless perhaps one found a recalcitrant
District Judge whom Tuttle had chastized, or heeded Judge Cameron's un-
found charges, one could not hear an unfavorable remark about the man.
Not only was Tuttle respected, but he was the recipient of warm personal
affection, regardless of disagreement on matters of substance. A clear
example of this was the opinion of Judge Hutcheson.
When Tuttle first came on the Court of Appeals, Hutcheson was not
sure that he would be a fine judge, because Hutcheson believed him to be
primarily a tax lawyer with only narrow experience. It turned out quite
the opposite, but although Tuttle was much more flexible and innovative
than Hutcheson, the latter came to respect Tuttle's abilities as a judge.
Hutcheson believed Judge Tuttle to be an aristocrat in the best sense.
41
Judge Brown s directness was reflected in his opinions which were
often spiced with pithy remarks. While they were usually short and to
the point, his flamboyant style and aggressive posture were at times
reflected in hyperbole. Confidential communication.
-295-
Tuttle's finest characteristic, as far as Hutcheson was concerned, was
42
his combination of forceful advocacy and genteel manners. The Texan
had great respect for a man who would stand up for his beliefs, but he
also appreciated what he saw as the Southern tradition of manners. The
greatest compliment Hutcheson paid Tuttle was that he thought of him as
a Southerner, regardless of Tuttle's consistent extension of desegrega-
tion and the "unfortunate circumstances" of his birth outside of the South.
John Minor Wisdom thought Tuttle was the best sort of Judge in every
way. The features of Tuttle's character that Wisdom most prized were his
integrity and his willingness to work. Even while he was Chief Judge,
with its attendant administrative duties, Tuttle worked harder than any
other judge and wrote more opinions. Not only did he produce quantity,
Tuttle's opinions were written in the grand style but without extrava-
43
gence. Tuttle's character and integrity were beyond reproach, for as
Wisdom said, he was the "Soul of Rectitude."* Wisdom, in fact, attributed
a good part of the Fifth Circuit's record in desegregation to Tuttle's
strength of character as Chief Judge. As Chief Judge, Tuttle combined
an actue awareness of the need to move on desegregation and a natural
understanding of command and people. Wisdom believed Tuttle was uniquely
42
Smith interview.
43
John Minor Wisdom, "Chief Judge Tuttle and the Fifth Circuit,"
53 Cornell L.Rev. 6 (No. 1, November, 1967).
*Tuttle's reputation for unquestioned honesty made it particularly
rankling for him in a rare case of criticism to be accused by Cameron
of gerrymandering panels in desegregation cases, particularly since he
was not responsible for making the assignments.
-296-
s u i ted to lead the Court to a fuller implementation of Brown and to keep
44
it together at the same time.
Judge Brown pointed to many of the same qualities in his estimation
of Elbert Tuttle. Tuttle was a born leader with the ability to make
very different kinds of people work well together. His intellectual
competence was beyond challenge, and he was a fast worker who turned out
volumes of opinions. Tuttle's logic was almost perfect, reflected both
in his opinions and discussions in conference. Tuttle also had an im-
perturbable nature and great patience in dealing with problems and people.
Finally, and above all else, Brown wrote, Tuttle had a strong moral
45
character, for I think Elbert Tuttle is incapable of being unfair."
All of these qualities were combined with a genuine dedication to the
realization of full civil rights for all citizens. Judge Brown put this
paean quite simply when he said of Tuttle, "He is the most perfect man I
have ever known."
Dean Frank Read has called Judge Tuttle a giant on the bench, who
combined the best features of other great judges on the Fifth Circuit
Court of Appeals. Like Brown, he was an outstanding administrator and
Chief Judge, and he held the Fifth together. While not the monumental
scholar and intellect that Wisdom was, Tuttle was extremely bright, and
wrote clear and logical opinions. Like Judge Rives, Tuttle had absolute
integrity and courage, for he was an early champion of civil rights. And
44
Wisdom interview.
45
John R. Brown, "Judge Elbert Tuttle: Jurist," 16 J. Pub. L. 279
(No. 2, 1967), p. 283.
46„ , . ,
Brown interview.
-297-
like Judge Hutcheson, Tuttle was decisive and strong, to which any foot-
dragging District Judge could attest. Tuttle was simply a magnificent
47
man.
By any measure, Elbert Parr Tuttle was a true aristocrat in the very
best sense of the word. The concept of noblesse oblige had real meaning
for Tuttle, for he believed his gifts, his success, and his position
required of him dedication and commitment to service. While some might
describe these attitudes as paternalistic, they would be missing his basic
belief in equality before the law. It was no coincidence that he was and
remains an advocate for minority rights, be they social or political.*
Perhaps the citation on an honorary Doctor of Laws conferred by Harvard
in 1965 best expressed Tuttle' s stature: "The mind and heart of this
48
dauntless judge enhance the great tradition of the federal judiciary."
Warren Jones was in some respects the most difficult of the judges
to assess. He declines to talk about himself and even his colleagues
have seen him as something of an enigma. The most important factor in
arriving at a fair estimate of Jones as a jurist was the stature of the
men with whom he served.
47
Read interview.
*In our interview, he did not think it important enough to mention
his military record even though most of his friends and colleagues still
refer to him as General Tuttle. His record indicates that during World
War Two, he fought in Guam, Okinawa, Leyte, and the Ryukus. He was
wounded and cited for exceptional and meritorious service while Battalion
Commander of the 304th Field Artillery of the 77th Division. He was
awarded the Bronze Star, the Legion of Merit, the Purple Heart with oak
leaf cluster, and the Bronze Service Arrowhead. Arthur Dean, "A Tribute
to Judge Elbert P. Tuttle," 53 Cornell L. Rev. 2 (No. 1, November,
1967).
48Ibid., p. 5.
-298-
Judge Hutcheson thought Jones was a fine and reliable man, whose
conduct as a judge was always proper. Jones represented the point of
view of the business and banking community and could always be counted
upon to do the appropriate conservative thing. Even though he never
accepted the Southern racial views, Hutcheson found him a compatible
fellow worker. Jones was not the sort of man to challenge tradition,
49
and the Texan felt he was properly unsympathetic to social engineering.
John Minor Wisdom believed Jones had a first rate mind and that the
rare opinions that he wrote employed simple, direct language. Wisdom
felt Jones was at the opposite pole philosophically, for he was a super-
conservative and had a very restricted view of the Court of Appeals'
50
role, both in the desegregation cases and in general. Jones did not
take an active role in the school cases, and did not seem particularly
interested in them during the 1950' s .
Judge Brown agreed with Wisdom that Jones contributed little during
the desegregation cases, but Jones also provided a necessary element on
the Court. He would not force civil rights and felt "The Four" were
going too fast and too far. As a result, by arguing for contrary re-
sults, Brown believed Jones provided a negative cautionary strength.
Nevertheless, Brown felt Jones could be counted upon in the school cases
if the precedent was clear and unchallenged. He would follow the
authorities, such as the Brown decisions, but would not go beyond them.
49
Smith interview.
50
Wisdom interview. In the school desegregation cases, Wisdom
felt that Jones had little or no impact.
-299-
While Jones could be crochety, with an acid sense of humor, Brown felt
51
they had a pleasant working relationship.
Elbert Tuttle considered Jones to be an excellent lawyer and a
moderate in the desegregation cases. As was true of himself and Judge
Brown, he believed that Jones had never become receptive to the Southern
tradition on race. Tuttle described Jones as a "no-nonsense" man whose
approach to the Court's work was more conservative than his own. Jones
was, for example, content to accept nearly authoritative limits on new
courses of action.
The common thread woven through these comments, beyond the obvious
appraisal of Jones as a conservative judge, was their brevity. Jones'
colleagues had very little to say about him. This is certainly due in
part to his reticence, lack of substantial activity in the desegregation
litigation, and the fact that Jones was not a particularly sociable man.
He was a quiet, conservative man, simply going about his job. Like the
majority of federal appellate judges, Jones was a strict stare decisis
man who believed in a passive role for the Courts. The job of judges
was to follow the law. Jones rarely wrote opinions and had no great
54
desire or talent in that direction. His record in civil rights was c
sistent, for although he dissented from new legal advances, once these
51 D
Brown interview.
52
Tuttle interview.
Read interview.
54
Warren Jones was not a particularly hard working judge. There are
some who say he was tired of practicing law and accepted his judicial
appointment as an alternative to retirement. Confidential communica-
tion.
-300-
changes became legal precedent, unlike Ben Cameron, Jones would follow
them.
Jones was a solid, competent Court of Appeals Judge, who drew little
criticism or praise. To attain such a position was a substantial
achievement, for in the legal profession, only a seat on the United
States Supreme Court was more exalted. If he seemed something of an
55
invisible man, or as Frank Read has called him, "The Grey Horse," it
was only because he sat on the Fifth Circuit Court of Appeals with a cast
of giants. Each of the other judges were unique, special, and in some
respects larger than life, even in failure. Warren Jones was not.
55
Read interview.
CHAPTER X
CONCLUSION
Speculation is not supposed to be a part of history. It is dif-
ficult enough for the researcher to try to determine how the tale un-
folded without burdening oneself with what might have been. Consider,
however, what might have happened in the South if there had been a dif-
ferent cast of characters on the Fifth Circuit Court of Appeals. If the
judges of that Court had not combined their belief in equal justice,
dedication to the rule of law, and patience with the inherent weaknesses
and shortcomings all of us share, how would integration have come to
southern schools? What would have been the result of that social revolu-
tion? If the judges had required immediate and complete integration in
the mid-1950' s, would the South still have public schools? Might there
not have been unprecedented racial violence, even by the standards of
our troubled past. Suppose, alternatively, the judges had bowed to
public opinion and community pressure. Desegregation suits might still
clog the federal court dockets and impatient and outraged black South-
erners might have begun a revolution in earnest. Were these possibilities
imaginary horribles? Fortunately, we did not have to find out. In dif-
ficult circumstances, perhaps haltingly at times, the South was forced
by the Court of Appeals and the Judges of the Fifth Circuit to obey one
of the most basic of our deeply held national beliefs, the equality of
every human being before the law.
-301-
-302-
In each case examined in this study, the Court was faced with a
different task although the aim, enforcement of Brown v. Board of Educa-
tion, was the same. In Miami, a relatively simple litigation gave
reasonable and well-intentioned community leaders an opportunity to
exert their influence and begin a process of voluntary though token
integration. The community was educated to the necessity of taking some
responsibility on its own. Though the first steps were designed to pre-
vent the massive integration threatened by court action, it was a start.
In Dallas, the Court was faced with the necessity of forcing two foot-
dragging District Court Judges to obey the Supreme Court's mandate and
abide by its own directions. This was an internecine struggle and
divided the federal courts against themselves. The Court of Appeals
would not allow the traditional discretion of trial courts to prevent or
interminably delay desegregation. In New Orleans, the Court of Appeals
was called upon to aid and support a federal District Court against the
Governor, the Legislature, the entire Executive Branch of the Louisiana
government, and local opinion. What became a real test of strength and
will between state and federal power was waged by the two courts alone.
Against the best efforts of Louisiana and the implacable hostility of
most of New Orleans, the Court of Appeals and the District Court suc-
ceeded in at least breaking down the formidable legal barriers against
integration of the schools.
This study has been an enlightening journey of discovery for the
writer. While federal courts may be examined as institutions, the
central fact about the performance of the Court of Appeals was that the
men, the judges examined here, and not the law, were responsible for the
eventual success of integration in Southern schools. All seven of them
-303-
did not participate equally in that accomplishment, but all demonstrated
an individuality that defied conventional categorization, a feature often
neglected in considering the nature of collegia! courts. At least four
of the seven judges were substantial men even before their contact with
the problems of desegregation. Their own special talents and character-
istics, combined with outstanding service in that controversy, made them
exceptional judges and men.
John Brown, Richard Rives, Elbert Tuttle, and John Minor Wisdom,
names unfamiliar to those outside the legal profession, were jurists of
the first order on a par with the legendary figures of the Supreme Court.
They became known as "The Four" and what a quartet they were. Men of
impeccable social standing and professional accomplishment, they became
the foremost champions of the disadvantaged in the South. These judges,
sharing a compassion for the victims of injustice, an intense sense of
social responsibility, and an abiding faith in the rule of law, each
brought their own particular abilities to the Fifth Circuit Court of
Appeals. They guided the South through its early adjustment to the con-
stitutional standard for racial equality and slowly evolved desegrega-
tion policy for the entire nation.
Wisdom, Brown, and Tuttle shared an impatience with delay in the
implementation of the Brown decisions which led them to innovative pro-
cedures resulting in acceleration of the administration of justice. They
recognized that special measures were necessary to correct the years of
segregation. Long before other courts took similar measures, these three
men adopted remedies in desegregation suits which later became programs
for affirmative action. Where possible, they avoided imposing the heavy
hand of federal judicial operation of the schools, but when necessary,
-304-
they were not loath to extend their powers to the fullest. They managed
to destroy the legal barriers to school integration while coping with
the largest caseload in the largest Circuit in the federal judicial
system.
John Minor Wisdom's particular contribution was his intellect. A
life-long student of law, and the society within which it operates, he
was the scholar of the Fifth Circuit. Whenever an opinion called for
historical development, legal scholarship, or philosophical depth, Wisdom
was most often called upon to be the author. His work was always charac-
terized by clarity, style, and precision, and it has become part of the
literature of the law. Even today, in his early 70's and after serious
health problems, Wisdom's mental energy and excellence are without peer.
Although he has taken senior status, he still exercises intellectual
domination on the Court. Wisdom is quite simply the finest appellate
judge of at least the last quarter century.
John Brown's paramount abilities were in administration and became
most evident during his tenure as Chief Judge of the Circuit, well after
the period under discussion. He initiated the most far reaching pro-
cedural innovation in any federal court. During the 1950' s , Brown was
one of the first on the Court of Appeals to see that traditional remedies
were not sufficient to desegregate the schools and to suggest the use of
extraordinary steps to cut through the delaying tactics of the segre-
gationists. As was true of Wisdom and Tuttle, Brown consistently decided
in favor of the black plaintiffs and pushed the process of integration
forward. Brown was to become the outstanding court administrator in the
country but has always kept as his guiding principle the correction of
injustice.
-305-
The special quality Elbert Parr Tuttle brought to the Court was his
complete and unquestioned integrity. Even his most bitter opponents on
desegregation retained a deep respect for him as both a man and a judge.
Tuttle was one of the most widely respected judges of the last few
decades, and his unimpeachable character was an important element of the
Fifth's fine performance. He was, perhaps, the most complete of all the
judges examined, for he combined a fine intelligence and writing style,
an ability to lead and gain cooperation, and a passion for doing right.
Like Brown and Wisdom, he was willing to innovate and experiment, to go
to the frontiers of the law to give meaning to the equal protection of
the laws. Tuttle was no legal mechanic, but rather an artist of juris-
prudence.
Richard Taylor Rives was not an innovator or a judicial activist as
were the other members of "The Four." Essentially a conservative man,
he was at home with the traditions of the South. He was no liberal
advocate of school integration and was quite content to take a slower,
more traditional judicial approach to desegregation. Yet, Rives may have
contributed the most to the Fifth Circuit Court of Appeals, for in the
face of the most extreme isolation and disapproval of his community, he
demonstrated unflagging courage. While Rives' opinions were not as con-
sistently in favor of black plaintiffs in all civil rights suits as
Brown, Tuttle, and Wisdom, in the school desegregation cases he repeatedly
overruled delay and chicanery and enforced the mandate of Brown. As the
years passed, be became less inclined to adopt the slow approach to
desegregation, but even in those early years when it mattered most,
Judge Rives almost always was found on the proper side of the question.
He was the best example possible of the judicial temperament, for he
-306-
knew that above one's personal attitudes, above the desire of one's
community, stood the judge's oath of office and the rule of law. Having
suffered and sacrificed the most, Judge Rives may have attained the
highest distinction.
Joseph C. Hutcheson, Jr., was not one of "The Four." In fact, he
was most unsympathetic to their activist position. A judge of the old
school, a writer of opinions in the grand style, and a classical scholar,
Hutcheson was, however, one of the most widely known and respected judges
of his era. For many years, he was the Fifth Circuit Court of Appeals.
In the thirty-seven years he served on that Court, he participated in
the development and interpretation of many fields of law. Although he
represented an earlier era in the South and did not favor the Brown de-
cision, Hutcheson's basic belief in individual liberty and the obliga-
tion to obey the requirements of the Constitution prevented him from
taking a negative stance. He was not deeply involved with the desegre-
gation litigation, but when he did participate in those cases, he obeyed
the Supreme Court's mandate. Judge Hutcheson's most important contribu-
tion to the Fifth Circuit Court of Appeals, aside from his many years of
service, was the prestige and continuity he gave the Court. He also
provided a clear example of the independence of mind that became so
characteristic of the Court.
One might almost lose sight of the stature of these judges were it
not for the other two men who served on the Court during our period,
Benjamin Cameron and Warren Jones. Cameron was the tragic figure of
the Court, for his formidable legal talents were wasted. He was wedded
to a judicial, social, and constitutional philosophy that was more
appropriate in the nineteenth century. Cameron's attachment to states'
-307-
rights and the traditional racial policies of the South made him a
constant dissenter, so removed from the thinking of his colleagues that
he lost all of his effectiveness. When he died in 1964, Cameron was an
isolated, embittered man who finally realized what he had lost. It was
unfortunate that the learning and logic displayed in his constant dis-
sents were not put to use in cooperation with the other members of the
Court. Like many other Southerners of talent and substance, Cameron
was a prisoner of his past.
On any other Court of Appeals, Warren Jones would have been a highly
respected and influential judge. He was steady, reliable, and competent,
dedicated to the tradition of stare decisis and the limited nature of
the judicial function. In the Fifth Circuit, Jones almost disappeared
in the company of giants. His record in the desegregation cases was
surprisingly good, for though he felt Brown was being applied too far
and too fast, he followed it as clear precedent. In the 1 itigation as a
whole, Jones contributed little beyond his natural inclination for
restraint. Judge Jones is a good standard to which the other judges
might be compared, for he was fairly typical of most federal appellate
judges.
It must occur to any student of history or law that the position of
judge is a most respected one. We select certain men and women and say
to them, "We trust you to be fair, objective, and honest in deciding
disputes between us." Others may make the laws, the rules by which we
agree to conduct our behavior. Others are given the power to command
us in emergencies, even to the extent of jeopardizing our lives. We even
are willing to entrust to others the task of instructing our children.
Judges, however, are asked to apply and interpret those rules and give
-308-
practical meaning to our rights and obligations. We expect the judge to
employ his learning, his experience, and his wisdom, to provide us
justice. It has been the unfortunate fact that these requests were
rarely met in full. During the years of the Eisenhower Administration,
in most difficult circumstances, the Judges of the Court of Appeals for
the Fifth Judicial Circuit more than met that request. They were one of
the most important forces for moving the South toward racial justice and
equality while setting a standard for the rest of the nation as well.
They have been a telling justification of the unique American judicial
system.
APPENDIX A
SUPREME COURT DECISIONS IN
BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL.*
Brown et al . v. Board of Education of Topeka et al .
Argued December 9, 1952--Reargued December 8, 1 953--
Decided May 17, 1954.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina,
Virginia, and Delaware. They are premised on different local conditions,
but a common legal question justifies their consideration together in
this consolidated opinion.
In each of the cases, minors of the Negro race, through their legal
representatives, seek the aid of the courts in obtaining admission to the
public schools of their community on a nonsegregated basis. In each in-
stance, they had been denied admission to schools attended by white
children under laws requiring or permitting segregation according to race.
This segregation was alleged to deprive the plaintiffs of the equal pro-
tection of the laws under the Fourteenth Amendment. In each of the cases
other than the Delaware case, a three-judge federal district court denied
relief to the plaintiffs on the so-called "separate but equal" doctrine
announced by this Court in Plessy v. Ferguson, 163 U.S. 537. Under that
doctrine, equality of treatment is accorded when the races are provided
substantially equal facilities, even though these facilities be separate.
In the Delaware case, the Supreme Court of Delaware adhered to that doc-
trine, but ordered that the plaintiffs be admitted to the white schools
because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools are not "equal"
and cannot be made "equal," and that hence they are deprived of the equal
protection of the laws. Because of the obvious importance of the question
presented, the Court took jurisdiction. Argument was heard in the 1952
Term, and reargument was heard this Term on certain questions propounded
by the Court.
Reargument was largely devoted to the circumstances surrounding the
adoption of the Fourteenth Amendment in 1868. It covered exhaustively
consideration of the Amendment in Congress, ratification by the states,
then existing practices in racial segregation, and the views of proponents
and opponents of the Amendment. This discussion and our own investigation
convince us that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced. At best, they
are inconclusive. The most avid proponents of the post-War Amendments
♦Footnotes omitted in all decisions.
-309-
-310-
undoubtedly intended them to remove all legal distinctions among "all
persons born or naturalized in the United States." Their opponents,
just as certainly, were antagonistic to both the letter and the spirit
of the Amendments and wished them to have the most limited effect. What
others in Congress and the state legislatures had in mind cannot be de-
termined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment's
history, with respect to segregated schools, is the status of public
education at that time. In the South, the movement toward free common
schools, supported by general taxation, had not yet taken hold. Educa-
tion of white children was largely in the hands of private groups.
Education of Negroes was almost non-existent, and practically all of the
race were illiterate. In fact, any education of Negroes was forbidden
by law in some states. Today, in contrast, many Negroes have achieved
outstanding success in the arts and sciences as well as in the business
and professional world. It is true that public school education at the
time of the Amendment had advanced further in the North, but the effect
of the Amendment on Northern States was generally ignored in the con-
gressional debates. Even in the North, the conditions of public education
did not approximate those existing today. The curriculum was usually
rudimentary; ungraded schools were common in rural areas; the school term
was but three months a year in many states; and compulsory school atten-
dance was virtually unknown. As a consequence, it is not surprising that
there should be so little in the history of the Fourteenth Amendment
relating to its intended effect on public education.
In the first cases in this Court construing the Fourteenth Amendment,
decided shortly after its adoption, the Court interpreted it as pro-
scribing all state-imposed discriminations against the Negro race. The
doctrine of "separate but equal" did not make its appearance in this
Court until 1896 in the case of Plessy v. Ferguson, supra, involving not
education but transportation. American courts have since labored with
the doctrine for over half a century. In this Court, there have been six
cases involving the "separate but equal" doctrine in the field of public
education. In Cumming v. County Board of Education, 175 U.S. 528, and
Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was
not challenged. In more recent cases, all on the graduate school level,
inequality was found in that specific benefits enjoyed by white students
were denied to Negro students of the same educational qualifications.
Missouri ex rel . Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332
U.S. 631 ; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State
Regents, 339 U.S. 637. In none of these cases was it necessary to re-
examine the doctrine to grant relief to the Negro plaintiff. And in
Sweatt v. Painter, supra, the Court expressly reserved decision on the
question whether Plessy v. Ferguson should be held inapplicable to pub-
lic education.
In the instant cases, that question is directly presented. Here,
unlike Sweatt v. Painter, there are findings below that the Negro and
white schools involved have been equalized, or are being equalized, with
respect to buildings, curricula, qualifications and salaries of teachers,
and other "tangible" factors. Our decision, therefore, cannot turn on
merely a comparison of these tangible factors in the Negro and white
schools involved in each of the cases. We must look instead to the ef-
fect of segregation itself on public education.
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In approaching this problem, we cannot turn the clock back to 1868
when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson
was written. We must consider public education in the light of its full
development and its present place in American life throughout the Nation.
Only in this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and
local governments. Compulsory school attendance laws and the great ex-
penditures for education both demonstrate our recognition of the impor-
tance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is
a principal instrument in awakening the child to cultural values, in
preparing him for later professional training, and in helping him to
adjust normally to his environment. In these days, it is doubtful that
any child may reasonably be expected to succeed in life if he is denied
the opportunity of an education. Such an opportunity, where the state
has undertaken to provide it, is a right which must be made available to
all on equal terms.
We come then to the question presented: Does segregation of children
in public schools solely on the basis of race, even though the physical
facilities and other "tangible" factors may be equal, deprive the children
of the minority group of equal educational opportunities? We believe
that it does.
In Sweatt v. Painter, supra, in finding that a segregated law
school for Negroes could not provide them equal educational opportunities,
this Court relied in large part on "those qualities which are incapable
of objective measurement but which make for greatness in a law school."
In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring
that a Negro admitted to a white graduate school be treated like all
other students, again resorted to intangible considerations: ". . . his
ability to study, to engage in discussions and exchange views with other
students, and, in general, to learn his profession." Such considerations
apply with added force to children in grade and high schools. To separate
them from others of similar age and qualifications solely because of
their race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely ever
to be undone. The effect of this separation on their educational oppor-
tunities was well stated by a finding in the Kansas case by a court which
nevertheless felt compelled to rule against the Negro plaintiffs:
"Segregation of white and colored children in pub-
lic schools has a detrimental effect upon the colored
children. The impact is greater when it has the
sanction of the law; for the policy of separating the
races is usually interpreted as denoting the inferi-
ority of the negro group. A sense of inferiority
affects the motivation of a child to learn. Segrega-
tion with the sanction of law, therefore, has a ten-
dency to [retard] the educational and mental develop-
ment of negro children and to deprive them of some of
the benefits they would receive in a racial [ly] inte-
grated school system."
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Whatever may have been the extent of psychological knowledge at the time
of Plessy v. Ferguson, this finding is amply supported by modern author-
ity. Any language in Plessy v. Ferguson contrary to this finding is
rejected.
We conclude that in the field of public education the doctrine of
"separate but equal" has no place. Separate educational facilities are
inherently unequal. Therefore, we hold that the plaintiffs and others
similarly situated for whom the actions have been brought are, by reason
of the segregation complained of, deprived of the equal protection of the
laws guaranteed by the Fourteenth Amendment. This disposition makes un-
necessary any discussion whether such segregation also violates the Due
Process Clause of the Fourteenth Amendment.
Because these are class actions, because of the wide applicability
of this decision, and because of the great variety of local conditions,
the formulation of decrees in these cases presents problems of consider-
able complexity. On reargument, the consideration of appropriate relief
was necessarily subordinated to the primary question--the constitution-
ality of segregation in public education. We have now announced that
such segregation is a denial of the equal protection of the laws. In
order that we may have the full assistance of the parties in formulating
decrees, the cases will be restored to the docket, and the parties are
requested to present further argument on Questions 4 and 5 previously
propounded by the Court for the reargument this Term. The Attorney
General of the United States is again invited to participate. The
Attorneys General of the states requiring or permitting segregation in
public education will also be permitted to appear as amici curiae upon
request to do so by September 15, 1954, and submission of briefs by
October 1, 1954."
It is so ordered.
Brown et al . v. Board of Education of Topeka et al .
Reargued on the question of relief April 11-14, 1955--0pinion
and judgments announced May 31, 1955.
MR. CHIEF JUSTICE WARREN delievered the opinion of the Court.
These cases were decided on May 17, 1954. The opinions of that date,
declaring the fundamental principle that racial discrimination in public
education is unconstitutional, are incorporated herein by reference. All
provisions of federal, state, or local law requiring or permitting such
discrimination must yield to this principle. There remains for considera-
tion the manner in which relief is to be accorded.
Because these cases arose under different local conditions and their
disposition will involve a variety of local problems, we requested fur-
ther argument on the question of relief. In view of the nationwide impor-
tance of the decision, we invited the Attorney General of the United
States and the Attorneys General of all states requiring or permitting
racial discrimination in public education to present their views on that
question. The parties, the United States, and the States of Florida,
North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and
participated in the oral argument.
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These presentations were informative and helpful to the Court in its
consideration of the complexities arising from the transition to a system
of public education freed of racial discrimination. The presentations
also demonstrated that substantial steps to eliminate racial discrimina-
tion in public schools have already been taken, not only in some of the
communities in which these cases arose, but in some of the states appear-
ing as amici curiae, and in other states as well. Substantial progress
has been made in the District of Columbia and in the communities in
Kansas and Delaware involved in this litigation. The defendants in the
cases coming to us from South Carolina and Virginia are awaiting the
decision of this Court concerning relief.
Full implementation of these constitutional principles may require
solution of varied local school problems. School authorities have the
primary responsibility for elucidating, assessing, and solving these
problems; courts will have to consider whether the action of school
authorities constitutes good faith implementation of the governing con-
stitutional principles. Because of their proximity to local conditions
and the possible need for further hearings, the courts which originally
heard these cases can best perform this judicial appraisal. Accordingly,
we believe it appropriate to remand the cases to those courts.
In fashioning and effectuating the decrees, the courts will be
guided by equitable principles. Traditionally, equity has been charac-
terized by a practical flexibility in shaping its remedies and by a
facility for adjusting and reconciling public and private needs. These
cases call for the exercise of these traditional attributes of equity
power. At stake is the personal interest of the plaintiffs in admission
to public schools as soon as practicable on a nondiscriminatory basis.
To effectuate this interest may call for elimination of a variety of
obstacles in making the transition to school systems operated in accor-
dance with the constitutional principles set forth in our May 17, 1954,
decision. Courts of equity may properly take into account the public
interest in the elimination of such obstacles in a systematic and effec-
tive manner. But it should go without saying that the vitality of these
constitutional principles cannot be allowed to yield simply because of
disagreement with them.
While giving weight to these public and private considerations, the
courts will require that the defendants make a prompt and reasonable
start toward full compliance with our May 17, 1954, ruling. Once such
a start has been made, the courts may find that additional time is neces-
sary to carry out the ruling in an effective manner. The burden rests
upon the defendants to establish that such time is necessary in the
public interest and is consistent with good faith compliance at the
earliest practicable date. To that end, the courts may consider problems
related to administration, arising from the physical condition of the
school plant, the school transportation system, personnel, revision of
school districts and attendance areas into compact units to achieve a
system of determining admission to the public schools on a nonracial
basis, and revision of local laws and regulations which may be necessary
in solving the foregoing problems. They will also consider the adequacy
of any plans the defendants may propose to meet these problems and to
effectuate a transition to a racially nondiscriminatory school system.
During this period of transition, the courts will retain jurisdiction of
these cases.
The judgments below, except that in the Delaware case, are according-
ly reversed and the cases are remanded to the District Courts to take such
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proceedings and enter such orders and decrees consistent with this opinion
as are necessary and proper to admit to public schools on a racially
nondiscriminatory basis with all deliberate speed the parties to these
cases. The judgment in the Delaware case--ordering the immediate admis-
sion of the plaintiffs to schools previously attended only by white
children--is affirmed on the basis of the principles stated in our May
17, 1954, opinion, but the case is remanded to the Supreme Court of
Delaware for such further proceedings as that Court may deem necessary
in light of this opinion.
It is so ordered.
APPENDIX B
COURT OF APPEALS DECISIONS IN
GIBSON v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY*
Gibson v. Board of Public Instruction of Dade County
United States Court of Appeals, Fifth Circuit, July 23, 1957.
Before RIVES, JONES and BROWN, Circuit Judges
RIVES, Circuit Judge.
Negro children eligible to attend the public schools of Dade County,
Florida, by their parents as next friends, filed a class action alleging
irreparable injury and deprivation of their constitutional rights by the
Board of Public Instruction and the Superintendent of Public Schools of
that County. The complaint averred that each of the children seeks ad-
mission to the public schools of the County without racial segregation;
that the defendants maintain and supervise such schools "under a system
which provides certain schools for the education of white children only
and others for the education of colored children only"; that the plaintiffs
have petitioned the Board of Public Instruction to abolish racial segre-
gation in the public schools of the County as soon as is practicable in
conformity with the decision of the Supreme Court of the United States
in Brown v. Board of Education, 349 U.S. 294 (1955), but that the Board
has refused, and, instead, adheres to a statement of policy in part as
follows:
"It is deemed by the Board that the best interest
of the pupils and the orderly and efficient adminis-
tration of the school system can best be preserved
if the registration and attendance of pupils entering
school commencing the current school term remains
unchanged. Therefore, the Superintendent, principals
and all other personnel concerned are herewith advised
that until further notice the free public school
system of Dade County will continue to be operated,
maintained and conducted on a nonintegrated basis."
The complaint prayed for declaratory and adjuntive relief.
Upon motion of the defendants, the district court dismissed the com-
plaint holding that it did not set forth a justiciable case or contro-
versy, and did not allege that the plaintiffs had sought admission to any
*Footnotes omitted in all decisions.
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particular school or had been denied the right to attend any school be-
cause of their race.
The issue of justiciable controversy under such a complaint has been
settled in Bush v. Orleans Parish School Board, 138 F.Supp. 337, 340
(E.D. La. 1956), affirmed by this Court in 242 F.2d 58 (5th Cir. 1957).
Under the circumstances alleged, it was not necessary for the plain-
tiffs to make application for admission to a particular school. As said
by Chief Judge Parker of the Fourth Circuit in School Board of City of
Charlottesville, Va. v. Allen, 240 F.2d 59, 63, 64 (4th Cir. 1956):
"Defendants argue, in this connection, that plain-
tiffs have not shown themselves entitled to injunctive
relief because they have not individually applied for
admission to any particular school and been denied
admission. The answer is that in view of the announced
policy of the respective school boards any such appli-
cation to a school other than a segregated school
maintained for Colored people would have been futile;
and equity does not require the doing of a vain thing
as a condition of relief." 240 F.2d at pp. 63, 64.
The appellees urge also that the judgment should be affirmed because
the plaintiffs have not exhausted their administrative remedies under
the Florida Pupil Assignment Law of 1956, Chapter 31380, Laws of Florida,
Second Extraordinary Session, 1956. Neither that nor any other law can
justify a violation of the Constitution of the United States by the re-
quirement of racial segregation in the public schools. So long as that
requirement continues throughout the public school system of Dade County,
it would be premature to consider the effect of the Florida laws as to
the assignment of pupils to particular schools.
The district court erred in dismissing the complaint. Its judgment
is reversed and the cause remanded.
REVERSED AND REMANDED.
Gibson v. Board of Public Instruction of Dade County, Florida
United States Court of Appeals, Fifth Circuit, November 24, 1959.
Before RIVES, Chief Judge, and BROWN and WISDOM, Circuit Judges.
RIVES, Chief Judge.
This action, filed June 12, 1956, sought a judgment declaring
Article 12, Section 12 of the Constitution of the State of Florida and
Section 228.09 Florida Statutes Annotated to be violative of the Four-
teenth Amendment to the Constitution of the United States. That much
has been conceded by the defendants from the beginning. The complaint
further prayed that the Board of Public Instruction be ordered to de-
segregate the public schools of Dade County and be enjoined from re-
quiring the plaintiffs and other Negroes of school age to attend or not
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to attend particular public schools because of their race. The district
court dismissed the complaint because the plaintiffs had not made appli-
cation for admission to a particular school. This Court reversed and,
in effect, held that a primary and positive duty rested upon the Board
of Public Instruction to comply with the May 17, 1954, ruling of the
Supreme Court in Brown v. Board of Education, 347 U.S. 483. That holding
was clearly required by the implementing decision, Brown v. Board of
Ecuation, 1955, 349 U.S. 294, 300, 301, now reaffirmed in Cooper v. Aaron,
1958, 358 U.S. 1, 7.
[Further Rel ief Denied]
Upon remand, after a full hearing, the district court rendered final
judgment declaring the Article of the State Constitution and the Section
of the State Statutes under attack to be violative of the Fourteenth
Amendment, as admittedly they are, but denying any further relief to the
plaintiffs. The present appeal is from that judgment.
To some extent the facts have been set forth in the former opinion
of this Court and in the opinion of the district court upon remand. The
bases for the rulings of the district court sufficiently appear in the
following two extracts from its opinion:
"As to the prayer of the complaint that the Court
order the defendants to promptly present a plan of
desegregation of the schools, the Court finds that
the Florida Pupil Assignment Law enacted by the
Legislature of Florida since the filing of this
suit meets the requirements of such a plan and the
demands of the plaintiffs. . . .
"The plaintiffs now have available to them ade-
quate remedies under the Pupil Assignment Law for
any of their grievances pleaded in the complaint.
The record shows that they have not pursued them
and until they do so and have been denied their
rights they are not entitled to injunctive relief."
Gibson v. Board of Public Instruction of Dade Co., Fla., 170 F.Supp. 454,
457, 459.
The Florida Pupil Assignment Law was enacted on July 26, 1956, more
than a month after the complaint in this case had been filed. Prior to
the enactment of that law, it is conceded that the Public Schools in Dade
County were racially segregated. Within a month after the enactment of
the Pupil Assignment Law, the Board of Public Instruction of Dade County
adopted an "Implementation Resolution." For the next school year 1956-57,
then about to commence, that resolution assigned en masse the children to
the same schools in which they were then enrolled, and assigned unregis-
tered pupils "to the school in which he or she would have been registered
had he or she been present." As to school terms after 1956-57, however,
the resolution provided:
"Section 3. Prior to the close of the 1956-57
school year or such other date as the Board may
specify and each year thereafter this Board,
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pursuant to the provisions of the Pupil Assignment
Law, will assign to a school for the following year
each child theretofore attending a school by assign-
ment from this Board. The record of all assignments
shall be open for inspection in the office of the
superintendent, and, in addition thereto, notice of
assignment shall be given to each pupil and his
parents.
"Section 4. This Board will assign to a school for
the 1956-57 school term and each year thereafter each
qualified child, not heretofore attending a school by
assignment from this Board, whose parent applied for
admission of such child. Such assignment will be made
pursuant to all of the provisions of the Pupil Assign-
ment Law. Application for admission shall be made on
forms to be approved by the board and made available
at the office of the superintendent and the principal
of each school. When completed, such applications shall
be submitted by the superintendent for action by the
board. Records of assignments hereunder shall be open
for inspection in the office of the superintendent,
and notice of assignment shall promptly be given the
pupil and his parents should the application for ad-
mission to a specific school be denied."
A card form of application for admission was approved by the Board.
That form contained no clear indication that the applicant should in-
dicate any choice of schools, but contained in its upper left-hand corner
the single word "School: ..." followed by a blank space. No notice or
advice from the Board or Superintendent was given to the children and
their parents, or to the school principals and teachers who received
their applications for admission, to the effect that Negro children, or
their parents for them, were now permitted to have considered fairly by
the Board any choice to attend a school other than an all-Negro school.
With very few possible exceptions, they all remained unaware that the
pre-existing policy of the Board might have been changed. Under such
circumstances, it is obvious that the pupil assignment cards manifested
no conscious preference for continued segregation on a voluntary basis.
[Segregation Prevailed]
At the time of trial, in the Fall of 1958, complete actual segrega-
tion of the races, both as to teachers and as to pupils, still prevailed
in the public schools of the County. A census record card kept by the
Board on each pupil still showed the designation of his race by the
initials "W.N.Y." The Superintendent explained: "Well, that form just
hasn't been corrected. We have a multiplicity of forms, and all of them
have been corrected except that one, that I know of." However, another
Board form, captioned "PUBLIC SCHOOLS, DADE COUNTY, FLORIDA, 1958-59
SUBSTITUTE TEACHERS GUIDE," listed under the word "WHITE," 12 Senior High
Schools, 32 Junior High Schools, and 107 Elementary Schools, and under
the word "NEGRO," 4 Senior High Schools, 5 Junior High Schools, and 19
Elementary Schools. The Superintendent explained that that list did not
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refer to pupils, but meant simply that, "The personnel, the instructional
personnel are all one or the other." The distinction is not very meaning-
ful so long as the schools having all Negro teachers also have all Negro
pupils, and no other schools have any Negro teachers or pupils. From a
careful study and consideration of the entire record, the conclusion is
inescapable that the plaintiffs and the members of the represented class
have not been afforded a reasonable and conscious opportunity to have
their choice of school considered by the enrolling authorities. For all
practical purposes, the requirement of racial segregation in the public
schools continued at the time of trial.
That being true, we cannot agree with the district court that the
Pupil Assignment Law, or even that the Pupil Assignment Law plus the
Implementing Resolution, in and of themselves, met the requirements of a
plan of desegregation of the schools or constituted a "reasonable start
toward full compliance" with the Supreme Court's May 17, 1954, ruling.
That law and resolution do no more than furnish the legal machinery
under which compliance may be started and effectuated. Indeed, there is
nothing in either the Pupil Assignment Law or the Implementing Resolution
clearly inconsistent with a continuing policy of compulsory racial
segregation.
[Alabama Case Cited]
The district court cited in support of its decision Shuttlesworth
v. Birmingham Board of Education, N.D. Ala. 1958, 162 F.Supp. 372. The
judgment in that case was affirmed by the Supreme Court "upon the limited
grounds on which the District Court rested its decision." Shuttlesworth
v. Birmingham Board of Education, 1958, 358 U.S. 101. The district
court had limited its decision in that case so as not to pass separately
upon any particular tests, parts or sections of the Alabama School
Placement Act. (See 152 F.Supp. at pp. 382, 382.) The decision was
further limited to the constitutionality of the law upon its face.
(See 162 F.Supp. at p. 384.) The district court in the present case
would extend the effect of the holding in the Shuttlesworth case, saying:
"The three-judge court in the Birmingham case also
denied all injunctive relief to the plaintiffs and
left them to the fair operation of the School Place-
ment Law and the remedies therein provided. The Court
in that case was likewise considering the issue raised
by the complaint as a basis for the application for
an injunction that despite the passage of the Pupil
Placement Law, Negro students were still being assigned
to the same schools on a basis of segregation of the
races irrespective of the nearness of other public
schools to the homes of the plaintiffs."
Gibson v. Board of Public Instruction of Dade Co., Fla., supra, 170 F.Supp.
454, 458, 459. The plaintiffs in the Shuttlesworth case, supra, did in
fact exhaust their administrative remedies under the Alabama School
Placement Law. (See 162 F.Supp. at pp. 372, 373.) The Shuttlesworth
case in the district court was confined to an attack upon the consti-
tutionality of the Placement Law on its face, and no evidence was
offered to sustain the parts of the complaint charging discrimination
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by any means other than by the Placement Law upon its face. (See 162
F.Supp. at pp. 375, 376.) In our opinion, the Shuttlesworth case affords
no support for the decision of the district court in the present case.
On the first appeal in this case, we said that so long as the re-
quirement of racial segregation continues throughout the public school
system it is premature to consider the effect of the law providing for
the assignment of pupils to particular schools. (See 246 F.2d at 914,
915.) Obviously, unless some legally non-segregated schools are pro-
vided, there can be no constitutional assignment of a pupil to a par-
ticular school. We do not understand that the Fourth Circuit has ruled
to the contrary. The net effect of its rulings, as we understand them,
is that the desegregation of the public schools may occur simultaneously
with and be accomplished by the good faith application of the law pro-
viding for the assignment of pupils to particular schools. If that
understanding is correct, then we readily agree.
In that connection, the Board may, if it chooses, submit for the
consideration of the district court a plan whereby the plaintiffs and the
members of the class represented by them are hereafter afforded a reason-
able and conscious opportunity to apply for admission to any schools for
which they are eligible without regard to their race or color, and to have
that choice fairly considered by the enrolling authorities. In the event
of the submission and approval of such a plan, the district court might
properly wait a reasonable time for the necessary administrative action
before finding whether further proceedings are necessary. In any event,
the district court should proceed in accordance with this opinion and
with the two opinions of the Supreme Court in Brown v. Board of Education,
supra, and should retain jurisdiction during the period of transition.
The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
APPENDIX C
COURT OF APPEALS DECISIONS to
BORDERS v. RIPPY*
Brown v. Ri ppy
United States Court of Appeals, Fifth Circuit, May 25, 1956.
Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.
PER CURIAM:
The suit was brought by Negro children of school age against the
President and members of the Board of Trustees of the Dallas Independent
School District and others for a declaratory judgment and an injunction.
It had for its object the entry of a judgment requiring the defendants
to desegregate with all deliberate speed the schools under the juris-
diction, and to cease their practices of segregating plaintiffs in
elementary and high school education on account of race and color.
The claim was that the defendants, though obligated to do so, were
conspiring to neglect to proceed as required by law.
The defendants denied that they were proceeding or proposing and
conspiring to proceed in violation of law, to force segregation upon
plaintiffs on account of their race and color. Alleging in effect that
they were proceeding, and would continue, as required in and by the
decisions of the Supreme Court, to proceed with all deliberate speed with
the change over from segregated to non-segregated schools, they prayed
that all relief, declaratory and injunctive, be denied.
When the case was called, instead of a hearing on evidence or agreed
facts, there was a running colloquy between judge and counsel, in which
after admitting that at least some of the plaintiffs had sought and been
denied admission on a non-segregated basis, the defendants' counsel
vainly tried to offer, in explanation and support of their action,
evidence of the matters pleaded by them.
Declining to hear the evidence, apparently under the mistaken view
that the plaintiffs had agreed to the facts pleaded by defendants,
though the record showed the exact contrary, the district judge, deter-
mining that the suit was premature, denied the injunction prayed and
ordered the suit dismissed without prejudice to the right of plaintiffs
to file it at some later date.
Appealing from that order plaintiffs are here insisting that the
record shows that the judgment was entered under a complete misappre-
hension both of the law and of the facts and must be reversed.
*Footnotes omitted in all decisions.
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-322-
The defendants here urging that the action of the court responded to
the facts as shown of record and to the law as declared in the decisions
of the Supreme Court, insist that the suit was premature and was properly
dismissed without prejudice.
We think it quite clear that there is no basis in the evidence for
the action taken by the district judge, none in law for the reasons given
by him in support of his action. The judgment is accordingly VACATED
and REVERSED and the cause is REMANDED with directions to afford the
parties a full hearing on the issues tendered in their pleadings.
[Dissent]
CAMERON, Circuit Judge, Dissenting.
I.
The Court below stated, as one of its reasons for dismissing the
complaint without prejudice, the following:
"The direction from the Supreme Court of the
United States requires that the officers and prin-
cipals of each institution, and the lower Courts,
shall do away with segregation after having worked
out a proper plan. That direction does not mean
that a long time shall expire before that plan is
agreed upon. It may be that the plan contemplates
action by the state legislature. It is not for this
Court to say, other than what has been said by the
Supreme Court in that decision.
"To grant an injunction in this case would be to
ignore the equities that present themselves for
recognition and to determine what the Supreme Court
itself decided not to determine. Therefore, I think
it appropriate that this case be dismissed without
prejudice to refile it at some later date. Give them
some time to see what they can work out, and then we
will pass upon that equity." L Emphasis supplied.]
The Court below was evidently referring to what the Supreme Court
said in its two segregation decisions:
"Because these are class actions, because of the
wide applicability of this decision, and because of
the great variety of local conditions, the formula-
tion of decrees in these cases presents problems of
considerable complexity. ..."
"Full implementation of these constitutional
principles may require solution of varied local
school problems. School authorities have the
primary responsibility for elucidating, assessing
and solving these problems; courts will have to
consider whether the action of school authorities
constitutes good faith implementation of the
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governing constitutional principles. ... At stake
is the personal interest of the plaintiffs in ad-
mission to public schools as soon as practicable on
a nondiscriminatory basis. To effectuate this in-
terest may call for elimination of a variety of
obstacles in making the transition to school systems
operated in accordance with the constitutional prin-
ciples set forth in our May 17, 1954, decision.
Courts of equity may properly take into account the
public interest in the elimination of such obstacles
in a systematic and effective manner. ... To that
end the courts may consider problems relating to
administration, arising from the physical condition
of the school plant, the school transportation system,
personnel, revision of school districts and attendance
areas into compact units to achieve system of deter-
mining admission to the public schools on a non-racial
basis, the revision of local laws and regulations
which may be necessary in solving the foregoing
problems. ..." [Emphasis added.]
In my opinion, the Court below was justified in using its discretion
to dismiss this action without prejudice on the ground that it was pre-
maturely brought. It seems clear that the course of action fixed by the
Supreme Court contemplated that school boards and other state officials
should take hold of the complex problem and work it out with the aid and
in the light of their superior knowledge of the problem in all of its
ramifications. These state officials were to work in an administrative
capacity under the plans detailed in these two opinions. The Supreme
Court recognized that the problem should be viewed as a whole and that
time would be required and that the state authorities should be given full
primary responsibility, as well as authority, to solve the problem in
the light of local conditions. As long as these officials were proceeding
in good faith and with deliberate speed to do this, it is clear to me
that the Supreme Court did not intend that they should be subjected to
harassment by vexatious suits or by the intervention of the courts. It
was the "action of the school authorities" which courts were to pass upon
at the proper time and after there had been opportunity for such action.
The scheme did not contemplate that the courts should anticipate or seek
to control such action or should impede it by too close chaperonage.
"Action" is defined as "an act or thing done, "--i.e. already performed.
The principles controlling in such a situation were announced in a
recent decision of the Supreme Court in a situation not unlike that with
which we are here dealing.
That case involved the question whether judicial action would be
taken to arrest the functioning of the First and Second Renegotiation
Acts on constitutional grounds before administrative remedies had been
exhausted. The Supreme Court held that such a short-circuiting of the
administrative remedy would be "a long overreaching of equity's strong
arm," and used this language in reaching that conclusion:
"The doctrine [exhaustion of administrative remedy]
wherever applicable, does not require merely the in-
itiation of prescribed administrative procedures. It
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is one of the exhausting them, that is, of pursuing
them to their appropriate conclusion and, cor-
rectively, of awaiting their final outcome before
seeking judicial intervention. The very purpose of
providing either an exclusive or an initial and pre-
liminary administrative determination is to secure
the administrative judgment either, in the one case,
in substitution for judicial decision or, in the
other, as foundation for or perchance to make un-
necessary later judicial proceedings. Where Congress
Lhere The Supreme Court J has clearly commanded that
administrative judgment be taken initially or ex-
clusively, the courts have no lawful function to
anticipate the administrative decision with their own,
whether or not when it has been rendered they may
intervene. ... To do this not only would contra-
vene the will of Congress as a matter of restricting
or deferring judicial action. It would nullify the
congressional objects in providing the administra-
tive determination." [Emphasis added.]
Again, in Myers v. Bethlehem Corp., Mr. Justice Brandeis, citing a
score of cases, stated: "The contention is at war with the long settled
rule of judicial administration that no one is entitled to judicial
relief for a supposed or threatened injury until the prescribed adminis-
trative remedies have been exhausted. . . . Obviously, the rule requiring
exhaustion of the administrative remedy cannot be circumvented by
asserting that the charge on which the complaint rests is groundless
and that the mere holding of the prescribed administrative hearing would
result in irreparable damage. Lawsuits also often prove to have been
groundless; but no way has been discovered to relieving the defendant
from the necessity of a trial to establish the fact."
And this Court has applied the principle in a series of cases in-
volving claims under the Fourteenth Amendment. The first of these was
Cook, et al. v. Davis, 1949, 178 F.2d 595, cert. den. 340 U.S. 811. A
District Court in Georgia had intervened by injunction in favor of Davis,
who claimed that he was discriminated against as a Negro teacher. This
Court wrote an exhaustive opinion in reversing that decision and used
this language:
"The broad principle that administrative remedies
ought to be exhausted before applying to a court for
extraordinary relief, and especially where the federal
power impinges on State activities under our federal
system, applies to this case. 'No one is entitled to
judicial relief for a supposed or threatened injury
until the prescribed administrative remedy has been
exhausted.' Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41, citing many cases relating to relief by
injunction. We held in Bradley Lumber Co. v. National
Labor Relations Board, 5 Cir., 84 F.2d 97, that the
same principle applies to relief by declaratory de-
cree. 'The rule that a suitor must exhaust his
administrative remedies before seeking the extraordinary
-325-
relief of a court of equity (citing many cases), is
of special force when resort is had to the federal
courts to restrain the action of state officers.' ..."
II.
The situation before the Court below furnishes an excellent illustra-
tion of the wisdom and relative necessity or permitting the school
authorities to apply their experience, judgment and investigative facili-
ties to the solution of the problem. Dallas County has one hundred twenty
school buildings, housing for instruction 78,691 white children and 14,593
Negro children. Each of those schools and each of the children presents
a separate problem to be dealt with in the light of many other considera-
tions besides race. It is not humanly possible that the District Courts
consider and resolve those problems in all of their details and intri-
cacies.
The Northern District, in which Dallas County is situated, has ninety-
nine other counties whose legal business must be handled by three active
District Judges. If the Court below is to be compelled to take juris-
diction of this action and try it, there is no reason why every other
school child in Dallas County and in the Northern District of Texas, both
white and Negro, should not file suit and demand a hearing, and procure
an adjudication of his own individual problems.
III.
Under accepted equitable principles a court should accept and ex-
ercise jurisdiction only when it is made clearly to appear from the
pleadings that the school officials are not performing their administra-
tive functions in good faith. The complaint here fails entirely to
charge any facts tending to sustain such a thesis and the answer refutes
it completely. The Court will presume that the state officials are acting
honestly and that they will expeditiously give plaintiffs all relief to
which they are entitled. Davis v. Arn, 5 Cir., 1952, 199 F.2d 424.
The complaint alleges that the twenty-seven plaintiffs on September
5, 1955, applied for admission to certain schools in Dallas Independent
School District: One applied to a junior high school; eight applied to
a high school; and the residue applied to four separate elementary
schools. In each instance it is alleged that the principal of the school
conspired with the superintendent of public schools to deprive plaintiffs
of the right immediately to attend the specified schools based upon their
race and color.
The complaint contains no charge at all that the school officials
did not act in good faith in denying them such immediate entry or that
the facts did not justify such denial. The complaint prayed for a
declaratory judgment declaring the statutes of the State of Texas under
which defendants assumed to act unconstitutional, and defining the legal
rights and relations of the parties; and for injunction, both temporary
and permanent against any enforcement by the defendants of the Texas
Statutes referred to. The answer contains this statement:
"... Defendants deny there is any scheme or
conspiracy to circumvent or evade the law or to
deprive any child, student or other person of their
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civil rights. The principals of the various
schools were following the instructions issued to
them by the administrative staff. The administra-
tive staff and the district trustees are now and
have been making an honest, bona fide, realistic
study of the facts to meet the obligations the law
has placed upon them to provide adequate public
school education and to perfect, as soon as possible,
a workable integrated system of public education."
It was further shown from the sworn answer and the stipulations of
counsel that the Dallas Public School System has operated for ninety years
as a segregated system and that budget procedures looking to the raising
of funds by taxation had been formulated and bonds issued on that basis
and upon the enumeration of white and Negro students already made. The
details of the budget are controlled by state laws and practices, and
thereunder statistical data is gathered in January of each year. The
budget for the school year had reached an advanced state of preparation
when the Supreme Court decision was published on the last day of Hay,
1955, and it was impossible to make the necessary adjustments and allo-
cations of students and teachers by the beginning of the school year in
September, 1955.
In order that all might be advised of this, the superintendent of
schools issued a statement on July 13, 1955, advising that a detailed
study of all of the problems inherent in desegregating was in progress
and the details of that study were set forth. Thirty-five million dollars
in bonds had recently been issued and the capital improvements involved
therein would have to be changed. Sixty percent of the money for operating
the Dallas schools came from the State of Texas, and the Attorney General
had ruled that funds could be allocated for the coming year only on the
segregated basis existing when appropriations were made and plans for the
school year set in motion. Complete chaos and a complete breakdown in
public school education for both White and Negro students would result
if the school officials should undertake a haphazard effort to deal
specially with isolated individuals and the six schools involved in the
suit out of the total of one hundred twenty. The situation required an
over-all adjustment based upon a consideration of the entire school
system, and granting to all individuals and classes the right spelled out
in these Supreme Court decisions.
IV.
These facts were known to the plaintiffs and their attorneys when
they applied for admission to the six schools mentioned, and when, one
week thereafter, this civil action was begun. Anyone willing to accept
facts would know that the relief demanded in the suit could not be
afforded in so short a time. That relief was threefold. (1) A judgment
was sought declaring the Texas Statutes unconstitutional. These statutes
have been declared unconstitutional by the Supreme Court of Texas and
defendants do not take issue with the averments of the complaint in this
regard and nothing is presented for the Court to decide. (2) Plaintiffs
prayed that the rights of the parties be declared. There was no contro-
versy between the litigants as to their respective rights. Plaintiffs
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claimed the right to be admitted to schools without discrimination
because of race or color. The defendants freely admitted that riSht
The only point at issue related to timing. There Ms ro "actual rn^rn
ETC *S?V& ^S^A' lt\ th7fh^ Juris1ictJon^^n?er ed
uieuiuri Dy db u.b.C.A. 2201 and Rule 57 F.R.C.P (3) IniiinrHnnc
fen Z\T\l T V™.™**":™ nought. There was no threat by the 31:
fendants to do anything plaintiffs did not want done or to omit rfninn
anything plaintiffs wanted done. Defendants solemnly declared the ]?
nrnhilneSS V"1* Plaintiffs to schools on an integrated balls when the
problem could properly be worked out. The very basis of inj nctive re
lief s threatened action or failure to act by one party in derogation
of established rights of the other party. The rights claimed bvthl
plaintiff are admitted and neither the pleadings n r the proof reflect
any threat by the defendants to violate those rights. Therefore there
is no basis for injunctive relief. mereTore, tnere
"The history of equity jurisdiction is the history
of regard for public consequences in employinq the
extraordinary remedy of the injunction. There have
been as many and as variegated applications of this
supple principle as the situations that have brought
it into play ... Few public interests have a hiqher
claim upon the discretion of a federal chancellor
than the avoidance of needless friction with state
policies, whether the policy relates to the enforce-
ment of the criminal law . . . or the final authority
ot a state court to interpret doubtful reaulatory
laws of the state. . . . These cases reflect a doc-
trine of abstention appropriate to our federal system
whereby the federal courts, 'exercising a wise dis
cretion restrain their authority because of 'scrupu-
lous regard for the rightful independence of the
state governments' and for the smooth working of the
federal judiciary. . . . This use of equitable powers
is a contribution of the courts in furtherinq the
harmonious relation between state and federal author-
ity without the need of rigorous congressional restric-
tion of those powers. ..."
V.
withn^6 miorJty °Pini0" ^verses the judgment dismissing the complaint
without prejudice and orders the Court below to "afford the parties
prompt and ful hearing on the issues tendered in their pleadings " To
permit judicial proceedings to be in progress while the school authori-
ties are seeking to perform duties defined by the Supreme Court as or™™
is not on y to provide duplication of effort and to ring the two on- *
ceedings into inevitable conflict, but it is to cast into confusi™ a
scheme which the Supreme Court spelled out with c a i y Parfiarly
is this true where, as here, it is perfectly plain that the school
authorities have not had time to study the complexities of the oroblem
and to come up with the proper answers 'Miexmes or tne problem
respons'ibimv inTnm,^ that-the STe"'e C°Urt would have Pla«d primary
responsibility in a group commissioned to act administratively with the
-328-
expectation that this group would be hampered or vexed in accomplishing
their task severely difficult at best, by contemporaneous litigation
directed towards fashioning a club to be held over their heads. Such a
judicial intervention would connote a distrust of the functioning of the
preliminary administrative process and would cast those conducting it
under a handicap of suspicion so great as to thwart at the threshold the
orderly carrying out of the procedures so plainly delineated by the
Supreme Court.
Moreover, that course would, in my opinion, contravene the principles
and policies so carefully worked out by this Court in Cook v. Davis,
supra, and the other cases following it; and would repudiate the approval
we gave to the action of the trial Court in Davis v. Arn, supra, where
the complaint had been dismissed as premature, and the language we there
used (p. 425):
"We cannot assume that if plaintiffs had pursued
that remedy they would have been denied the relief
to which they were entitled. The presumption is the
other way. As the complaint does not allege that
plaintiffs have availed themselves of the state ad-
ministrative remedies open to them under the Act,
their resort to a federal court to control state
officers in the performance of their duties is pre-
mature 7 L Emphasis added. J
It is my opinion that it was within the competence of the Court
below to dismiss without prejudice this prematurely-brought complaint
and that, in doing so, it followed the spirit and letter of the Supreme
Court's opinions and also vindicated the true function of the judicial
process. I would affirm.
Borders v. Rippy
United States Court of Appeals, Fifth Circuit, July 23, 1957.
Before RIVES, JONES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Twenty-eight negro children appeal again to this Court from another
judgment of the district court dismissing their complaint in which they
sought relief for themselves and other negroes similarly situated on
account of their exclusion from certain public schools of Dallas solely
because of their race and color.
The basic facts are simple and undisputed. Rosa Sims, ten years of
age, and Maude Sims, nine, applied for admission to the John Henry Brown
School, four blocks from their home. The school principal showed their
father a directive from the School Board "saying that no negro children
could go to school with the whites," and denied them the right to enter
because they were negroes. Instead, they went to Charles Rice Elementary
-329-
School distant from their home "about eighteen blocks across heavy traffic.
Like treatment from various public schools of Dallas was accorded to each
of the other negro children plaintiffs.
The testimony of the Assistant Superintendent and of the Superin-
tendent of the Dallas Independent School District disclosed the steps
which had been taken to comply with the school segregation decisions,
Brown v. Board of Education, 347 U.S. 483, decided on May 17, 1954, in
which the final judgments were entered on May 31, 1955, 349 U.S. 294.
On July 13, 1955, the Board of Education made a statement of policy in
which it instructed the Superintendent of Schools to proceed with a de-
tailed study in the following areas:
"1. Scholastic boundaries of individual schools
with relation to racial groups contained therein.
"2. Age grade distribution of pupils.
"3. Achievement and state of preparedness for grade
level assignment of different pupils.
"4. Relative intelligence quotient scores.
"5. Adaption of curriculum.
"5. The overall impact on individual pupils
scholastically when all of the above items are
considered.
"7. Appointment and assignment of principals.
"8. The relative degree of preparedness of white
and negro teachers; their selection and assignment.
"9. Social life of the children within the school.
"10. The problems of integration of the Parent-
Teachers Association and the Dads Club Organization.
"11. The operation of the athletic program under
an integrated system.
"12. Fair and equitable method of putting into
effect the decrees of the Supreme Court."
On July 27, 1955, the following was unanimously approved:
". . . It was reported that this School System has
been, is at present and will be obligated to continue
an intensive study of the problems involved in 12
specific areas, and that reports would be made to the
public of the results of these studies periodically.
It will be impractical to attempt integration until
these studies have been completed. Therefore, the
Superintendent of Schools is hereby instructed that
there shall be no alteration of the present status
of the schools of this district in the term beginning
September 1955."
Nearly a year later, on June 13, 1956, the Board issued its "Second
Statement on Desegregation by the President of the Board" concluding as
follows :
"The Board recognizes its responsibility to im-
plement the decree of the Supreme Court, but it
reaffirms its studied opinion that it would be
-330-
derelict in this regard if it ordered an alteration
in the status of its schools until its understanding
of the problems involved is as comprehensive as
possible and its plans for s.uch changes are completed.
This Board feels that it cannot and should not in
good conscience accept the responsibility for the
manner which the decree of the Supreme Court is to be
carried out until it has had sufficient time within
which to formulate plans which must be to the best
interest of this school district, its children, and
the community.
"Therefore, for the immediate future this Board
feels that any change is premature and instructs the
Superintendent of Schools to continue a segregated
school system for the school year 1956-57."
The Assistant Superintendent testified that there were about 119,000
children in the public schools of Dallas of which about 16-2/3 per cent
one out of every six, were negroes. The Superintendent testified that
immediate desegregation would result in mixed classes in all of the senior
high schools with one possible exception, and in a large number of the
elementary schools; that most of the school buildings are completely
filled and white children would have to be displaced to let negro children
come in; that there is a difference in scholastic aptitudes of white
children and negro children, the average difference at the first grade
level being one and one-half years, and the older the children the greater
the gap, so that in high school senior classes it would be around three
and one-half years; that, having the differential in mind, there were
not enough teachers available to impart adequate instruction to both
negro children and white children; but no child is refused admission
because he is retarded. He testified categorically that he was still
continuing segregation based upon races in the Dallas Independent School
District."
[Exhaustion of Remedies]
The appellees insist that the judgment should be affirmed because
of the failure of pleading or proofto show that each plaintiff has ex-
hausted his administrative remedies, under Article 2653-367of the Revised
Civil Statutes of Texas, by appeal to the State Commissioner of Education.
Texas State law gave the Board and the Superintendent the power to act,
and, in the exercise of such power, they denied the plaintiffs the right
to attend public schools of their choice solely on account of their race
or color. By such action the plaintiffs have been deprived of the con-
stitutional rights, and they are not required to seek redress from any
administrative body before applying to the courts. Bruce v Stilwell
206 F.2d 554, 556 (5th Cir. 1953); Carter v. School Board of Arlinqton
County, Va., 182 F.2d 531, 536 (4th Cir. 1950); Bush v. Orleans Parish
School Board, 138 F.Supp. 337, 341 (E.D. La. 1956), affirmed in Orleans
Parish School Board v. Bush, 242 F.2d 156, 162 (5th Cir. 1957); see also
Browder v. Gayle, 142 F.Supp. 707, 713 (M.D. Ala. 1956), affirmed per
curiam 352 U.S. 903.
-331-
Other applicable principles of law are equally simple and well
understood. Overcrowding in public school rooms cannot be lawfully pre-
vented or relieved by excluding pupils on the basis of their race or
color, demons v. Board of Education of Hillsboro, 228 F.2d 853. 857
(6th Cir. 1956).
[Segregation by_ Race Forbidden]
The equal protection and due process clauses of the fourteenth
amendment do not affirmatively command integration, but they do forbid
any state action requiring segregation on account of their race or color
of children in the public schools. Avery v. Wichita Falls Independent
School District, 241 F.2d 230, 233 (5th Cir. 1957). Pupils may, of
course, be separated according to their degree of advancement or retard-
ation, their ability to learn, on account of their health, or for any
other legitimate reason, but each child is entitled to be treated as an
individual without regard to his race or color.
So long as they are excluded from any public school of their choice
solely because of their race or color the plaintiffs are being denied
their constitutional rights. It is not a sufficient answer to say that
the school board has made "a prompt and reasonable start" and is pro-
ceeding to a "good faith compliance at the earliest possible date" with
the May 17, 1954 ruling of the Supreme Court. The district court must
retain jurisdiction to ascertain and to require actual good faith com-
pliance. Brown v. Board of Education, 349 U.S. 294, 299, 301; Avery v.
Wichita Falls Independent School District, 241 F.2d 230, 235, (5th
Cir. 1957).
We do not impugn the good faith of the Board, of the Superintendent,
or of any of the school authorities. Indeed, we note with appreciation
the sincere statement of their counsel that ". . . it is to be hoped
that the aftermath which occurred in Mansfield will not be similar in
Dallas." Faith by itself, however, without works, is not enough. There
must be "compliance at the earliest practicable date." Brown v. Board
of Education, 349 U.S. 294, 300 (1955); School Board of City of
Charlottesville, Va. v. Allen, 240 F.2d 59, 64 (4th Cir. 1956); Willis
v. Walker, 136 F.Supp. 177, 181 (W.D. Ky. 1955).
In their prayer on this appeal, appellants are moderate. They do
not pray for any immediate or en masse desegregation, but, recognizing
that still further time may be needed for the admittedly difficult
problems to be solved even if they are approached in a spirit of good
will on all sides, their prayer is:
"Wherefore, appeallants pray that the judgment
below be reversed and that the court below be in-
structed to enter an order requiring appellees to
desegregate the schools under their jurisdiction
'with all deliberate speed."'
At least to that much they are certainly entitled and it is so ordered
and adjudged. See 28 U.S.C.A. §2106.
REVERSED WITH DIRECTION.
-332-
Borders v. Rippy
United States Court of Appeals, Fifth Circuit, August 27, 1957.
Before RIVES, JONES, and BROWN, Circuit Judges.
PER CURIAM.
By petition for rehearing the appellees express their apprehension
that, under the terms of an Act of the 1957 Texas Legislature approved
by the Governor on the 23rd day of May, 1957, and to become effective on
to-wit August 23, 1957, their obedience to the order of the district
court to be issued upon remand, pursuant to the directions of this Court,
may result in the loss to the School District of some six million ($6,000,-
000.00) dollars a year of aid from the State of Texas and in the imposition
by the State of penalties upon the persons carrying out such order. That
Act, of course, cannot operate to relieve the members of this Court of
their sworn duty to support the Constitution of the United States, the
same duty which rests upon the members of the several state legislatures
and all executive and judicial officers of the several states. We cannot
assume that that solemn sworn duty will be breached by any officer,
state or federal. If, however, it should be, then the Board of Trustees
of the School District and the persons carrying out the order to be
issued by the district court are not without their legal remedies. The
petition for rehearing is
DENIED.
Rippy v. Borders
United States Court of Appeals, Fifth Circuit, December 27, 1957.
Before RIVES, JONES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Upon the last appeal, this Court reversed the judgment of the dis-
trict court dismissing the complaint and directed the entry of a judgment
restraining and enjoining the defendants from requiring segregation of
the races in any school under their supervision from and after such time
as might be necessary to make arrangements for admission of children to
such schools on a racially nondiscriminatory basis with all deliberate
speed as required by the decision in Brown v. Board of Education of
Topeka, 349 U.S. 294, and further directed the district court to retain
jurisdiction of the cause for such further hearings and proceedings and
the entry of such orders and judgments as might be necessary or appro-
priate to require compliance with such judgment. Borders v. Rippy, 5th
Cir. 1957, 247, F.2d 268.
After he had received the opinion of this Court, but before our man-
date had issued, the District Judge called counsel before him and made a
statement "as to his determination," in part as follows:
-333-
"This Court is now called upon to issue an order in
accordance with the Circuit Court's decisions and direc-
tions. That order not only unsettles the tranquility
of the Dallas Public Schools which has heretofore ex-
isted in a proud form for many years under which both
the colored and the white pupils have had equal school
facilities and splendid teachers, but it also takes
from the Independent School District a large necessary
amount of State funds if and when desegregation is
ordered.
"It is difficult, gentlemen, for me to approve this
order, but this is a land of the law and it is my duty
to do what I am ordered to do by the higher Court, and
I therefore ask you gentlemen of counsel to prepare an
order in accordance with the ruling of the United States
Circuit Court of Appeals for this Circuit, as outlined
in its opinion upon the original case and upon the
motion for rehearing, and I should like to have you
gentlemen of counsel to prepare the order to be approved
by each of you as to form, ordering integration to be
permitted at the coming mid-winter term of the schools
and not before that time. Let your order contain the
practical portion of the School Board's division of
districts and institution of schools."
Without any further hearing, without any evidence other than that
appearing in the record which led to our reversal, and without inviting
suggestions or arguments from counsel on anything save as scriveners in
the drafting of an order to effectuate his prior determinations, the
District Judge thus picked the mid-winter school term of 1957-58 as the
time to start system-wide desegregation.
["Requiring" ;vs_. "Permitting"]
After our mandate had been received, but still without any further
hearing, and professedly upon the decision and order of this Court and
the record theretofore made in the cause, the District Judge restrained
and enjoined the defendants "from requiring or permitting segregation of
the races in any school under their supervision, beginning and not before
the mid-Winter school term of 1957-58" (Emphasis ours).
Upon the same record, the District Judge had theretofore expressed
his opinion that: "I think that the testimony shows completely that the
school authorities here in charge of this Independent School District
are certainly doing their very best to comply with the ruling of the
Supreme Court of the United States." This Court in turn had said that:
"We do not impugn the good faith of the Board, of the Superintendent, or
of any of the school authorities." (247 F.2d 268, 272).
We have emphasized the words "or permitting segregation of the races"
in the district court's order because that expression might indicate a
serious misconception of the applicable law and of the mandate of this
Court. Our mandate had been carefully limited so as to direct the entry
of a judgment restraining and enjoining the defendants "from requiring
segregation of the races in any school under their supervision" (empha-
sis supplied). Likewise in our opinion, we had pointed out that it is
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only racially discriminatory segregation in the public schools which is
forbidden by the Constitution. That point was emphasized in the Arlington,
Virginia Case in which Chief Judge Parker of the Fourth Circuit quoted
with approval the apt language of District Judge Bryan:
"'It must be remembered that the decisions of the
Supreme Court of the United States in Brown v. Board
of Education, 1954 and 1955, 347 U.S. 483 [74 S.Ct 585,
98 L.Ed. 873] and 349 U.S. 294 [75 S.Ct. 753, 99 L.Ed.
1083] do not compel the mixing of the different races
in the public schools. No general reshuffling of the
pupils in any school system has been commanded. The
order of the Court is simply that no child shall be
denied admission to a school on the basis of race or
color. Indeed, just so a child in not through any form
of compulsion or pressure required to stay in a certain
school, or denied transfer to another school, because
of his race or color, the school heads may allow the
pupil, whether white or Negro, to go to the same school
as he would have attended in the absence of the ruling
of the Supreme Court. Consequently, compliance with
that ruling may well not necessitate such extensive
changes in the school system as some anticipate."
School Board of City of Charlottesville, Va., v. Allen, 4th Cir. 1956,
240 F.2d 59, 62.
[Duty of Court]
In our opinion on the last appeal, we noted that the then appellants
prayed for no more stringent order than one "requiring appellees to de-
segregate the schools under their jurisdiction 'wtih all deliberate
speed'" (247 F.2d 272). Accordingly, this Court's mandate fixed no date
for desegregation more specific than "from and after such time as may be
necessary to make arrangements for admission of children to such schools
on a racially nondiscriminatory basis with all deliberate speed as re-
quired by the decision in Brown v. Board of Education of Topeka, 349
U.S. 294." The authority to administer the public schools is vested in
the appellants, the Board and the Superintendent, and, of course, they
are the ones required to make the necessary arrangements referred to in
the judgment to be entered by the district court as directed by our
mandate. If the school authorities fail promptly to meet their primary
responsibility to the satisfaction of the plaintiffs, appellees, and
others similarly situated, then the duty will devolve upon the district
court to hold a hearing to decide whether they have done so and, if
necessary, to proceed further so as actually and effectively to require
compliance. In the performance of that duty, the district court must
exercise its own judgment and discretion in accordance with the applicable
principles of law set forth in Brown v. Board of Education of Topeka,
supra. It seems to us that the district court did not do this in
entering the judgment appealed from, but apparently considered itself
bound to enter that judgment by the mandate of this court. That was not
in accord with the mandate nor with the order of responsibility (first
-335-
the school authorities, then the local district court, and lastly the
appellate courts) prescribed in Brown v. Board of Ecuation of Topeka,
supra:
"Full implementation of these constitutional
principles may require solution of varied local
school problems. School authorities have the
primary responsibility for elucidating, assessing,
and solving these problems; courts will have to
consider whether the action of school authorities
constitutes good faith implementation of the govern-
ing constitutional principles. Because of their
proximity to local conditions and the possible need
for further hearings, the courts which originally
heard these cases can best perform this judicial
appraisal." (349 U.S. at p. 299.)
[Time Allowed]
We thought, and still think, that this Court's mandate made it clear
that before a more specific date should be fixed and before any orders or
judgments should be entered to require compliance with the judgment
directed in that mandate, the school authorities should be accorded a
reasonable further opportunity promptly to meet their primary responsi-
bility in the premises, and then if the plaintiffs, or others similarly
situated, should claim that the school authorities have failed in any
respect to perform their duty, there should be a full and fair hearing
in which evidence may be offered by any and all parties, and further that
the Court should retain jurisdiction to require compliance with its
judgment.
The judgment of the district court is therefore reversed and the
cause remanded with directions to enter a judgment in accordance with
the mandate of this Court issued on September 7, 1957 and in accordance
with this opinion, and to retain jurisdiction for such further hearings
and proceedings and the entry of such orders and judgments as may be
necessary or appropriate to require compliance with such judgment. In
view of the reversal on appeal, the petition for mandamus is not necessary
and leave to file said petition is denied.
REVERSED WITH DIRECTIONS. LEAVE
TO FILE PETITION FOR MANDAMUS
DENIED.
Dallas Independent School District v. Edgar
United States Court of Appeals, Fifth Circuit, May 23, 1958.
Before TUTTLE, BROWN and WISDOM, Circuit Judges.
TUTTLE, Circuit Judge.
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This is an appeal from an order of the District Court dismissing a
suit by the Dallas School District against the Texas State Commissioner
of Education and other state officials. It sought to have the district
court enter a declaratory judgment determining its right under two state
laws dealing with the appellant's duty to carry out the mandate pre-
viously entered by the district court that it desegregate the schools
under its jurisdiction with all deliberate speed. Borders v. Rippy,
5 Cir., 247 F.2d 268. These two statutes, which were already in force
when the case of Borders, et al . v. Rippy was last here for decision may
be found in Vernon's Annotated Civil Statutes, 2900-a and 2901-a. They
seek, in short to circumscribe the power of any Texas school district to
desegregate its public schools, which we held in the Borders case must,
on the record, be done in the Dallas Independent School District.
In effect, the petition of appellant in this litigation says to the
District Court: "You have ordered us to desegregate, although you have
not set a date; now our creator, the State of Texas, has told us (1) if
we do so without an election it will withhold our share of state funds
and subject our officers to penal sanctions, and (2) we may not re-
assign or transfer individual students without certifying that such
reassignment or transfer is in accord with certain prescribed standards;
now, you tell us whether to comply with your order in view of the action
of the state of Texas, and if we do, tell us how we will be affected by
the Texas laws."
[No U.S. Statute Cited]
Appellant points to no federal statute or provision of the federal
constitution pursuant to which this proceeding is filed. It alleges
generally that it is a civil action that arises under the constitution
and laws of the United States, but fails to point to the statute or
clause of the constitution on which it relies except to say, further,
that it is under 28 U.S.C.A. §1343(3), the civil rights jurisdiction
statute, and 28 U.S.C.A. 1981 and 1983, the civil rights substantive
statutes.
Appellant cites no authority for the proposition that a governmental
unit, like a state-created school district is a "person" which can com-
plain of state action denying it equal protection of the laws. Moreover,
the complaint makes no affirmative allegation as to its legal contention
vis-a-vis the appellees. It does not attack the constitutionality of
the state statutes under the federal constitution; it does not even
assert an adverse claim as against the appellees to the effect that they
cannot legally enforce the state statutes. At most, it says: Here is
the court's mandate; here are the statutes; we don't know how they will
affect us; you enter a judgment "declarative of the rights, duties and
obligations of the plaintiff to a United States Court of competent
jurisdiction carrying out the final mandate of the United States Court
and its position in relation to the two recently adopted legislative
enactments."
[No Place to Complain]
The appellants' brief asserts that it, being a creature of the state
and "owing its existence ot legislative enactment, could not complain to
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a court of an unconstitutional act. If the legislature can create, it
can later decimate," citing City of Trenton v. State of New Jersey, 262
U.S. 182. This is self evident, and so too is it equally plain under
Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31, that the appellant cannot
assert a claim against the state, since "all school districts are subject
to the plenary power of the Legislature." (This quotation comes from
appellant's brief.) This being so, there is obviously no justiciable
controversy stated here. This would, of course, require the dismissal
of the complaint for failure to assert a claim on which relief could be
granted. But it also, and more importantly, because it touches on the
district court's jurisdiction, demonstrates the inapplicability of the
civil rights statutes to a claim of this kind. Thus, there is no statute
giving the district court jurisdiction of such an action.
The dismissal was required, both for want of federal jurisdiction
and for failure to state a cause of action for declaratory relief.
The judgment is AFFIRMED.
Boson v. Rippy
United States Court of Appeals, Fifth Circuit, March 11, 1960; Rehearing
denied, April 8, 1960.
Before RIVES, Chief Judge, and CAMERON and WISDOM, Circuit Judges.
PER CURIAM.
This class action seeking admission of Negro children to the Dallas
public schools on a non-racial basis was commenced in July 1955. Its
history may be traced through many reported opinions on various stages
and phases of the litigation, e.g. Bell v. Rippy, D.C.N.D. Tex. 1955,
133 F.Supp. 811; Brown v. Rippy, 5 Cir. 1956, 233 F.2d 796; certiorari
denied Oct. 22, 1956, 352 U.S. 878, 77 S.Ct. 99, 1 L.Ed. 2d 79; Bell v.
Rippy, D.C.N.D. Tex. 1956, 146 F.Supp. 485; Borders v. Rippy, 5 Cir.,
1957, 247 F.2d 268; Rippy v. Borders, 5 Cir., 1957, 250 F.2d 690; see
also Dallas Independent School District v. Edgar, 5 Cir., 1958, 255
F.2d 455.
[District Court Judgment]
The present phase begins with the entry by the District Court on
April 16th, 1958, of a final judgment in part as follows:
"It is, Therefore, the Order, Judgment and
Decree of the Court that the Defendant Independent
School District of Dallas, its Board of Education,
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 the same are hereby, restrained
and enjoined from requiring and permitting
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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-dis-
criminatory basis with all deliberate speed, as
required by the decision of the Supreme Court in
Brown vs. Board of Education of Topeka, 349 U.S.
294 [75 S.Ct. 753, 99 L.Ed. 1983], and retaining
jurisdiction of the cause for such further hearings
and proceedings and the entry of such orders and
judgments as may be necessary or appropriate to
require compliance with such judgment."
[Motion for Further Relief]
On Hay 20, 1959, about thirteen months after the entry of said
judgment, the plaintiffs filed their "Motion for Further Relief," which
concluded with the following prayer:
"Wherefore, plaintiffs respectfully pray the
Court to enter an order directing and requiring
defendants to comply forthwith with this Court's
judgment and orders issued April 16, 1958, by
immediately operating all schools under their
supervision in the Dallas Independent School Dis-
trict on a nonracial, nondiscriminatory basis;
and that defendants be further directed to now
permit plaintiffs and all Negro minors similarly
situated to enter, matriculate and study in
schools under their supervision without regard to
race and color.
"Plaintiffs also pray the Court to allow them
their costs and for such other and further relief,
judgments and decrees as may appear equitable and
just in the premises."
The defendants replied to the motion, and prayed, "that this
Honorable Court overrule and deny Plaintiffs' said Motion."
[Statements at Hearing]
The hearing on the motion and answer was held on July 30, 1959, at
which time counsel for the respective parties made opening statements
as follows:
"Mr. Durham:
"If the Court will permit me I can state it very
shortly.
"The plaintiffs filed suit some time ago, and
Your Honor knows the history of it.
"The substance of the motion is that the Dallas
Independent School District, in face of the April
16th judgment, is still being operated on a racial
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segregated basis, and we ask the Court to enter a
decree directing the defendants to comply with that
decree.
"The defendants have filed an answer to our motion,
and in Allegation 10 they admit that the School Dis-
trict is still being operated on a racial segregated
basis in the face of the April 16th judgment; there-
fore, on the face of the record there appears to be
no substantial controversy to the main issue that the
school is being operated on a racial segregated basis.
We, therefore, believe that the case at that point,
that a decree should be rendered on the face of the
record directing the School Board to bring in a plan of
desegregation within a reasonable time, which would
provide for desegregation beginning September, 1960.
"This would alleviate the fear of defendants that
stress reference to that being impractical to do it
September, 1959, or in the middle of the term.
"Therefore, we believe, on the face of the record,
there being no substantial controversy, the plaintiff
would not be required to offer any evidence on the
motion.
"Mr. Strasburger:
"If your Honor please, we respectfully disagree
with opposing counsel. As we view the issue today
it is simply whether or not we have complied with
the former order, that we move with all deliberate
speed. We feel that we have moved with all deliber-
ate speed, and will continue to do so.
"Our pleadings join issue with them, that they are
not entitled to the relief they pray for today, that
they are in too big a hurry, that the best interests
of all the children and all the community demands
that we continue as we have continued in the past
and doing our dead level best to stay within the
Constitution and laws, and within the rulings of the
Court, not only of the United States but of the
State of Texas."
[Court's Oral Opinion]
The Court proceeded to hear all of the testimony offered by the
parties, and at the conclusion of the hearing delivered a long oral
opinion which comprises thirteen pages of the printed record and con-
cludes as follows:
"From the evidence before us, and from the state-
ment of counsel for the plaintiffs, it is not urged
before September 1960. Just what problem will be
confronting you in 1960, or by the fall of 1960, the
Court can hardly foresee. I can only say to you,
put your house in order for integration, for it is
ahead of you.
"We will not name any date, nor will we write any
order, except that we have not reached the time,
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to which counsel for plaintiff agrees, that integra-
tion can take place this year.
"I think an appropriate order will be that the
School Board be instructed to further study this
question, and that some definite action be taken,
perhaps toward holding this election or doing other
things, sometime next spring, but we cannot say
definitely whether or not it will take place at any
particular time, day, month or year, we don't know,
because we don't know what tomorrow may bring forth."
The plaintiffs then moved ". . . that the Court enter an order dis-
posing of Plaintiffs' motion and for such other and further relief as
they may be entitled to in the premises."
In response to that motion, the Court on August 4, 1959, entered its
order in part as follows:
"That the prayer of the Plaintiffs for an order
directing and requiring Defendants to immediately
desegregate is denied; but this Court retains juris-
diction of this cause for such further hearings and
proceedings and the entry of such orders and judgments
as might be necessary or appropriate to require com-
pliance with this Order as well as the judgment of
the Appellate Courts, and this hearing is recessed
for the time being to be resumed on the first Monday
in April, A.D. 1960."
On August 12th, 1959, the plaintiffs filed their notice of appeal
". . . from the decree and final judgment entered in this action on the
4th day of August, 1959, denying Plaintiffs' motion for further relief
praying for a judgment and decree of the Court directing and requiring
the Defendants to immediately desegregate the schools in the Dallas
Independent School District."
The order of August 4, 1959, refuses to modify an injunction, and
this Court, under 28 U.S.C.A. §1292(a)(l), has jurisdiction of an appeal
from that order. Compare Allen v. County School Board of Prince Edward
County, Va., 4 Cir., 1957, 249 F.2d 462.
[Appeal Scope Not Limited]
The language which we have quoted from the notice of appeal simply
describes the judgment or order from which the appeal is prosecuted and
was obviously not intended to limit the scope of the appeal, and does not
have that effect.
Upon consideration of the evidence, and of the entire record, we
find no error in the order appealed from except an error of omission.
The Court should have required the defendants to "make a prompt and
reasonable start toward full compliance" with its original injunction
order of April 16th, 1958, and to that end, it should have required the
defendants to submit a plan for effectuating a transition to a racially
nondiscriminatory school system in time for such plan to be considered
and ruled on by the Court on the date to which the hearing was recessed,
vis., the first Monday in April, 1960. See Brown v. Board of Education,
-341-
1955, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083. That date being
almost at hand, the order of the district court is modified so as to
require the defendants to "make a prompt and reasonable start toward full
compliance" with its injunction order .of April 16th, 1958, and to that
end, within thirty days from the date on which the present judgment of
this Court of Appeals becomes final, to submit a plan for effectuating
a transition to a racially nondiscriminatory school system; and further
that the District Court, within thirty days after the submission of such
plan, hold a full hearing upon the plan so submitted and on any objections
which may be filed thereto. As so modified the judgment or order of the
District Court is affirmed.
Modified and affirmed.
CAMERON, Circuit Judge, dissents.
Dissent
CAMERON, Circuit Judge (dissenting).
For several reasons I cannot subscribe to the result announced and
the reasons given in the per curiam opinion in which the majority has
concurred.
I.
I do not think the case is legally before us. We have no jurisdic-
tion, except that conferred by statute. The per curiam opinion rests
jurisdiction upon 28 U.S.C.A. 81292(a)(1) providing for appeals from
interlocutory orders of district courts "granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions. ..." This appeal does not, in my opinion, come within
the ambit of the statute.
The proceeding which led to the order appealed from was a "motion
for further relief" filed by appellants May 20, 1959. The only specific
relief prayed for was "an order directing and requiring defendants to
comply forthwith with this Court's judgment and orders issued April 16,
1958, by immediately operating all schools under their supervision
on a nonracial, nondiscriminatory basis; and that defendants be further
directed to now permit plaintiffs and all other Negro minors similarly
situated to enter, matriculate and study in schools under their super-
vision without regard to race and color." The appellants abandoned the
prayer for immediate desegregation at the very outset of the hearing on
the motion of May 20, this being the statement of their counsel: "We,
therefore, believe that the case at that point, that a decree should be
rendered on the face of the record directing the School Board to bring
in a plan of desegregation within a reasonable time, which would provide
for desegregation beginning September, 1960. This would alleviate the
fear of defendants that [sic] stress reference to that being impractical
to do it September, 1959 or in the middle of the term."
[Immediate or Future Desegregation?]
All of the discussion had between the attorneys and all of the questions
to witnesses related, not to the prayer for immediate desegregation, but
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to a plan for desegregation sometime in the future. In the order entered
by the court at the conclusion of the hearing, the court stated: "Plain-
tiffs stated in open court that desegregation should not be put into
effect this year. "
Based upon the statements of appellants' attorneys and upon this
finding, the court ordered: "That the prayer of the plaintiffs for an
order directing and requiring defendants to immediately desegregate is
denied." Appellants have never taken the position that this portion of
the order was erroneous, but, as stated, the order was entered after
appellants had abandoned that contention and had made known their position
to the court below.
The appeal was taken, therefore, solely from the residue of the
order, which reads:
". . . but this Court retains jurisdiction of this
cause for such further hearings and proceedings and
the entry of such orders and judgments as might be
necessary or appropriate to require compliance with
this order as well as the judgment of the appellate
courts, and this hearing is recessed for the time
being to be resumed on the first Monday in April,
A.D. 1960."
[Hatter of Timing Presented]
The only appeal before us, therefore, relates, not to any order
"granting, continuing, modifying, refusing or dissolving injunctions or
refusing to dissolve or modify injunctions." There is presented to us
here nothing but a matter of timing. No request was made by appellants
that the recess provided for in the order be for a shorter period, or
that the case be set for hearing on the only remaining issue at any other
time than that fixed by the court. After appeal lants had abandoned the
prayer for immediate integration, there was nothing remaining but the oral
statement of the attorney that he believed that an order should be
entered directing the School Board to bring in a plan of desegregation
within a reasonable time. Assuming that this statement should be in-
terpreted as a motion, the Rules of Procedure provide for notice and
hearing of any motion.
We should not, in my opinion, concern ourselves with the setting of
the docket of the district courts or other minutiae of trials. In any
event, if appellants were dissatisfied with the April setting, the point
should have been raised when the court stated orally that it was passing
the remaining question before it until April; or by a motion to the
trial court requesting an earlier setting, followed by petition to us
for leave to proceed by mandamus. No such action was taken or motion
filed below and no such action has been taken before us. If it had, we
should, in my opinion, meet such an effort with language similar to that
used by the First Circuit:
". . . We do not think that 28 U.S.C. §1651
grants us a general roving commission to supervise
the administration of justice in the federal dis-
trict courts within our circuit, and in particular
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to review by a writ of mandamus any unappealable
order which we believe should be immediately
reviewable in the interest of justice."
A final judgment is the general prerequisite for an appeal and an
interlocutory appeal is definitely the exception. Moore's Commentary on
the United States Judicial Code, page 481, et seq., and see Cobbledick
v. United States, 1940, 309 U.S. 323, 324, 60 S.Ct. 540, 84 L.Ed. 783;
and Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 185,
75 S.Ct. 249, 99 L.Ed. 233.
II.
The "Implementing Decision" of the Supreme Court, Brown v. Board of
Education of Topeka, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083,
contains this language:
"Full implementation of these constitutional
principles may require solution of varied local
school problems. School authorities have the primary
responsibility for elucidating, assessing, and
solving these problems; courts will have to consider
whether the action of school authorities constitutes '
good faith implementation of the governing consti-
tutional principles. Because of their proximity to
local conditions and the possible need for further
hearings, the courts which originally heard these
cases can best perform this judicial appraisal.
Accordingly, we believe it appropriate to remand
the cases to those courts."
The cases were sent back to the district courts sitting where the
problems arose, not to the Courts of Appeal. It was recognized that the
local boards had problems which were unique, and experience has shown
that these problems are as complex as they are local. The judges upon
whom the Supreme Court cast the onus of collaborating with the local
school boards were those situated in the locales where the problems ex-
isted and who logically had a good grasp of those problems.
[Transgression of Important Policies?]
What the majority does here transgresses, in my opinion, against
policies which the Supreme Court thought important and which reason and
common sense make compellingly so. I do not think we ought to interfere
with the progress of the School Board and the local district judae in
working out these local problems. They have an intimate knowledge of
the problems and are in best position to work them out. The Judges who
constitute this Court have lived their lives at points far distant from
the locale of these problems and could not possibly be in as aood position
to solve them as the district judge who has spent his life with them. It
is our duty, as it seems to me, to leave their solution to these local
citizens, trusting their wisdom and their good faith. This record does
not, in my judgment, present any reason to question either.
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The Supreme Court thought that the local judges could "best perform
this judicial appraisal." They can do so after considering, in the light
of their own experience, the evidence of what the problems consist of
and what the School Board has done and is doing to cope with them.
The hearing in the court below consisted of the testimony of three
witnesses, the president of the School Board, the superintendent of
schools, and the assistant superintendent. From them the court below
learned the attitude of the appellees and the school officials generally
towards compliance with the orders of the courts, the studies which had
been made and the complexity of the problems involved in dealing with
119,000 school children with 3,800 teachers, occupying 134 school
buildings.
After hearing all of the evidence the court below stated in its
oral opinion: "The only question is, how soon must it [i.e. integration]
be. From the evidence before us, and from the statement of counsel for
the plaintiffs, it is not urged before September, 1960. Just what prob-
lem will be confronting you in 1960, or by the fall of 1960, the Court
can hardly foresee. I can only say to you, put your house in order for
integration, for it is ahead of you. . . ."
[Findings and Order Below]
Four days later, pursuant to motion of the appellants, and without
any objection to the proposed April setting, the court entered its written
findings and order in which it stated in part:
"The Court is of the opinion and so finds . . .
that the defendants have not only made a prompt and
reasonable start but are also proceeding toward a good
faith compliance at the earliest practicable date with
the May 17, 1954 ruling of the Supreme Court and the
judgments of the United States Court of Appeals,
Fifth Circuit, as well as the judgments and orders of
this Court entered pursuant thereto; and the defen-
dants' actions constitute good faith implementation
of all governing constitutional principles; that the
defendants have diligently studied the problems in-
volved and the methods and plans used elsewhere in a
genuine effort to avoid the strife and violence which
had taken place in some areas ...:... and that
some further time should elapse before the Court
decides on a definite date for desegregation in order
that new conditions, developments and evidence might
be considered; . . . ."
The court thereupon recessed the hearing until the first Monday of April,
1960, after appellants had made no objection to that date proposed
orally by the court and had filed nothing in the court below in the way
of a request for an earlier hearing.
_ As stated, the only evidence in the record was given by the school
officials, and from that and the statement of counsel for the appellees,
the court made its findings. It did not deny any request urged by the
appellants and did not refuse anything even suggested by them. The court
below was vested with discretion, and it has exercised that discretion
-345-
I do not think it lies within the proper powers of this Court to set that
discretion aside under the circumstances of this case; and if we had the
power to do it, I do not think the evidence would justify our substituting
our judgment for that of the court below.
III.
(a) In their defensive pleadings to the appellants' motion for
further relief upon which the case was heard by the court below, appellees
pled specially the act of the 1957 session of the Texas Legislature, c.
283, approved by the Governor May 23, 1957, and effective ninety days
thereafter. Among other things, they said with respect to said legisla-
tive enactment:
"... they allege that they have and are now
pursuing all of their legal remedies with reference
to an Act of the 1957 Texas Legislature ... as
suggested or directed in the opinion of the United
States Court of Appeals, Fifth Circuit, as set out
it 247 F.2d 268, in that they filed an appropriate
action in the federal courts which was dismissed for
want of jurisdiction of which this Honorable Court
can take judicial notice; and they filed a similar
suit thereafter in the state court of Texas and an
appeal from the decision of the . . . District Court
of Dallas County, Texas, is now pending in the Court
of Civil Appeals for the State of Texas, Eleventh Dis-
trict at Eastland, Texas [Dallas Independent School
Dist. v. Edgar, 328 S.W.2d 201]. . . .
"Further specially answering, defendants say that
they had not thought that they had the power or right
or that it would be appropriate for them to initiate
the steps necessary to an election with reference to
the 1957 Texas Legislature, but that if either this
Honorable Court or the plaintiffs desire it, they
will undertake to make such necessary steps."
[Texas School Statutes]
The first reference in the foregoing quotation is to the statement
of this Court upon petition for rehearing in a former decision of this
case, Borders v. Rippy, 5 dr., July 23, 1957, 247 F.2d 268, 272, that
the appellees here "are not without their legal remedies." Pursuant to
their construction of the quoted language of the decision of this Court,
appellees promptly instituted an action in the United States District
Court praying for a declaration of their rights under the two Texas
statutes. This Court affirmed the action of the district court declining
to assume jurisdiction, both because the complaint disclosed no federal
jurisdiction and it failed to state a claim upon which relief could be
granted. In that case, we quoted the titles to the two Texas statutes
whose meaning, validity and application the appellees sought to have
declared. One of the statutes, Article 2900a of Title 49, Vernon's Texas
Civil Statutes, 1959 pocket part p. 204, makes it illegal for a board of
trustees to abolish the dual public school system the Texas Legislature
-346-
had established and provides that, if the Act shall be violated, the
school district shall be ineligible for accreditation and for the receipt
of any Foundation Program funds, and that the individuals violating the
Act shall be guilty of a misdemeanor and subject to fine.
The second Act of the Texas Legislature, the title of which was
quoted by this Court (255 F.2d at page 456), Article 2901a, 1959 pocket
part, Vernon's Annotated Civil Statutes of the State of Texas, p. 205 et
seq., deals elaborately with the assignment of pupils and the transfer of
pupils, teachers and funds by local school boards, in connection with
which cf. Shuttlesworth v. Birmingham Board of Education, U.S.D.C.N.Dist.
Ala. 1958, 162 F.Supp. 372, affirmed 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed. 2d
145. Neither of these statutes was involved in the case of Borders v.
Rippy and neither was in existence when, on Dec. 26, 1956, the district
court entered the judgment in that case, which this Court dealt with in
its decision of July 23, 1957, 5 Cir., 247 F.2d 268. Since in the
decision of that case we were testing the correctness of the trial
court's ruling as based upon the record then before us, neither of these
statutes was ever properly before this Court.
[Statutes Bind, Jjf Valid]
The statutes are, in my opinion, if valid, binding upon the appellees
here, and if their constitutionality is questioned, the court below should
stay its hand while that question is dealt with in the Texas courts.
Empire Pictures Distributing Co. v. City of Fort Worth, 5 Cir., 1960,
273 F.2d 529, and the Supreme Court cases there cited and discussed. If
it is not possible to conduct such a hearing in the state courts of Texas,
the questions raised by the appellees based upon the statutes will still
remain in the case and, in my opinion, the appellees are entitled to have
them resolved before they are required to take any step in this litiga-
tion which may be in derogation of said statutes.
(b) As stated above, Article 2900a of Vernon's Annotated Civil
Statutes of Texas was called to the attention of this Court by Petition
for Rehearing filed by the appellees in Borders v. Rippy, supra, and this
Court said with respect to it (247 F.2d 272):
"That Act, of course, cannot operate to relieve
the members of this Court of their sworn duty to
support the Constitution of the United States, the
same duty which rests upon the members of the several
state legislatures and all executive and judicial
officers of the several states. We cannot assume
that solemn sworn duty will be breached by any officer,
state or federal. If, however, it should be, then
the Board of Trustees of the School District and the
persons carrying out the order to be issued by the
district court are not without their legal remedies."
The record in that case reveals that neither party had relied upon
nor mentioned the statute in the court below or in the presentation of
the case to this Court upon the appeal until after our decision of June
23, 1957 had been rendered. The Act had not become effective under its
terms when, on August 6, 1957, the Petition for Rehearing was filed.
The main thrust of this Petition was that the dismissal without prejudice
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by the trial court should be affirmed so that appellants might have the
opportunity to file a new action challenging, before a three-judge
court, the constitutionality of the new statutes of Texas in keeping
with the procedure they had taken in their original action.
[Function of April Hearing]
At the April hearing which the court below fixed— and which, without
jurisdiction, in my opinion, so to do, this Court has, in the majority
opinion, cancelled--all questions raised by the pleadings would have been
considered and passed upon. Included in these questions would have been
the constitutionality of these statutes, assuming that appellants followed
the procedure adopted in their original complaint in this case, of
attacking the constitutionality of Texas school laws and praying that a
three-judge court be convened to try the issue. That no power is vested
in a single district judge or in us upon appeal from his ruling, to grant
an injunction restraining the enforcement of a state statute on the ground
that it violates the Constitution of the United States is made abundantly
clear by a decision just rendered by the Supreme Court reiterating its
long established holding that such power is committed solely to a statu-
tory court of three judges, 28 U.S.C.A §2281.
[Statutes Never Challenged]
At all events, it is clear that the statutes have never been chal-
lenged before the court below or before us; and in the absence of such
a challenge, jurisdiction has bever been lodged in this Court to express
any opinion concerning the constitutional validity or efficacy of such
statutes. The Supreme Court has recently repeated principles long estab-
lished which forbid a court from passing upon the constitutionality of a
state statute unless called upon to do so in such a way that the question
cannot be avoided, United States v. Raines, Feb. 29, 1960, 80 S.Ct. 519,
322:
"The very foundation of the power of the federal
courts to declare Acts of Congress unconstitutional
lies in the power and duty of those courts to decide
cases and controversies properly before them. This
was made patent in the first case here exercising
that power--'the gravest and most delicate duty that
this Court is called upon to perform.' Marbury v.
Madison, 1 Cranch, 137, 137, 177-180, 2 L.Ed. 60.
This Court, as is the case with all federal courts,
'has no jurisdiction to pronounce any statute, either
of a state or of the United States, void, because
irreconcilable with the constitution, except as it
is called upon to adjudge the legal rights of liti-
gants in actual controversies. In the exercise of
that jurisdiction, it is bound by two rules, to which
it has rigidly adhered: one, never to anticipate
a question of constitutional law in advance of the
necessity of deciding it; the other, never to for-
mulate a rule of constitutional law broader than is
required by the precise facts to which it is to be
applied."
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The applicability of the Texas statutes to the case made by the
pleadings can hardly be doubted and they ought, in my opinion, to be
submitted, along with all the other questions involved, for an orderly
hearing in due course, to the court below.
For the foregoing reasons, I respectfully dissent.
Rehearing denied: CAMERON, Circuit Judge, dissenting.
Boson v. Rippy
United States Court of Appeals, Fifth Circuit, November 30 and December
7, 1960.
Before RIVES, Chief Judge, and TUTTLE and JONES, Circuit Judges.
RIVES, Chief Judge.
This action seeking an end to enforced racial segregation in the
public schools of the Dallas Independent School District was first dis-
missed without prejudice by the district court in September 1955. This
Court reversed with directions to afford the parties a full hearing.
The Supreme Court denied cerioriari.
After hearing the testimony, the district court aqain dismissed the
action without prejudice. This Court reversed with directions that the
district court enter an order requiring the defendants to desegregate the
schools under their jurisdiction "with all deliberate speed."
The district court construed such directions to require immediate
en masse desegregation, and, accordingly, against its own expressed better
judgment, entered an order enjoining the defendants "from requiring or
permitting segregation of the races in any school under their supervision,
beginning and not before the mid-Winter school term of 1957-58." That
order was again reversed by this Court with more specific directions to
accord the school authorities "a reasonable further opportunity promptly
to meet their primary responsibility in the premises, and then if the
plaintiffs, or others similarly situated, should claim that the school
authorities have failed in any respect to perform their duty, there should
be a full and fair hearing in which evidence may be offered by any and all
parties, and further that the Court should retain jurisdiction to require
compliance with its judgment."
The district court then entered a general order requiring desegrega-
tion "with all deliberate speed." No further court proceedings appear
until some thirteen months later, when the plaintiffs filed their "motion
for further relief" praying for immediate desegregation of the public
schools. The district court denied immediate desegregation, but retained
jurisdiction and recessed the hearing from August 4, 1959, to the first
Monday in April 1960. Upon appeal this Court modified the order of the
district court "so as to require the defendants to 'make a prompt and
reasonable start toward full compliance1 with its injunction order of
April 16th, 1958, and to that end, within thirty days from the date on
which the present judgment of this Court of Appeals becomes final, to
submit a plan for effectuating a transition to a racially nondiscriminatory
-349-
school system; and further that the District Court, within thirty days
after the submission of such plan, hold a full hearing upon the plan so
submitted and on any objections which may be filed thereto." In confor-
mity with such an order, the defendant school authorities filed in the
district court a twelve-year, "stair-step" plan of desegregation starting
with the first grade in September 1961, and proceeding by the desegrega-
tion of one additional grade a year until all twelve grades in all public
schools have been desegregated.
The district court disapproved this plan and required the defendants
to file "an alternate desegregation plan more in keeping with the Court's
oral opinion." The alternate plan was promptly filed, providing for the
separating and grouping of the schools into white, Negro and mixed schools,
and for canvassing parents and pupils in order to learn "who does and who
does not want integration, and thereby give all concerned what they pre-
fer, as far as is practical and possible."
The district court expressed the opinion that the holding of an
election under Article 2900a of the Revised Civil Statutes of Texas should
not be made a condition of a plan of desegregation, again rejected Plan
No. 1, and ordered the defendants to amend Plan No. 2 by eliminating the
paragraphs which make an election and favorable result conditions of the
plan. In conformity with such opinion and order, the defendants re-
submitted both plans amended so as not to depend upon the outcome of an
election. The district court again rejected Plan No. 1, overruled the
objections of the plaintiffs to Plan No. 2 as amended, and approved
that plan. The plaintiffs appeal from the approval of Plan No. 2 as
amended, and the defendants appeal from the disapproval of Plan No. 1 as
amended.
We agree with the district court that the holding of an election
under Article 2900a of the Revised Civil Statutes of Texas should not
be made a condition of a plan of desegregation. It goes without saying
that recognition and enforcement of constitutional rights cannot be made
contingent upon the result of any election.
Plan No. 2 as amended, which was approved by the district court,
would continue the practice of enforced segregation in the all white and
all Negro schools and would require the operation of mixed schools if
parents and pupils of both races so desired. That plan evidences a
total misconception of the nature of the constitutional rights asserted
by the plaintiffs. Negro children have no constitutional right to the
attendance of white children with them in the public schools. Their
constitutional right to "the equal protection of the laws" is the right
to stand equal before the laws of the State; that is, to be treated
simply as individuals without regard to race or color. The dissenting
view of the elder Mr. Justice Harlan in Plessy v. Ferguson, 1895, 163
U.S. 537, 559, has been proved by history to express the true meaning
of our Constitution:
". . . There is no caste here. Our Constitution
is color-blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights,
all citizens are equal before the law. The humblest
is the peer of the most powerful. The law regards
man as man, and takes no account of his surroundings
or of his color when his civil rights as guaranteed
by the supreme law of the land are involved."
-350-
Instead of removing the forbidden classification according to race or
color, that plan adds another such classification. Virtually the same
plan has already been condemned in the Southern District of Texas and
by this Court. Houston Independent School District, et al . v. Ross, 5
Cir., 1960, 282 F.2d 95, 96. State support of schools in which segre-
gation of the pupils is required by law cannot be squared with the con-
stitutional command of equal protection of the laws. Cooper v. Aaron,
1958, 358 U.S. 1, 19.
The district court's approval of Plan No. 2 as amended must be
reversed. As to Plan No. 1 as amended, we are of the opinion that para-
graph 6, quoted in the margin, should be stricken because its provisions
recognize race as an absolute ground for the transfer of students, and
its application might tend to perpetuate racial discrimination. Compare
Kelly v. Board of Education of City of Nashville, 1958, 361 U.S. 924.
The brief on behalf of the school authorities states: "Plan No. 1
represents the first choice and best judgment of the School Board in
exercising 'the primary responsibility for elucidating, assessing and
solving1 the 'varied local school problems,' placed upon local school
authorities by the Supreme Court's opinion in the Brown case." On the
other hand, the appellants insist that the district court "should have
ordered the Dallas School authorities to admit appellants and all other
Negroes similarly situated to public schools under their supervision on
a racially nondiscriminatory basis at the start of the ensuing school
term." The appellants further pray— and with much reason, in view of the
frustrating history of this litigation— that this Court should here
render a definite judgment. We are reluctant to substitute our judgment
for that of the district court, and are willing to do so only to the
extent necessary to assure a prompt start toward full compliance and
reasonable, even though conservative, progress toward bringing about the
end of racial segregation in the public schools "with all deliberate
speed." See Brown v. Board of Education, 1955, 349 U.S. 294, 299. To
that end we direct that the district court approve Plan No. 1 as amended,
eliminating therefrom paragraph 6 quoted in footnote 13, supra.
In so directing, we do not mean to approve the twelve-year, stair-
step plan "insofar as it postpones full integration." See Evans v. Ennis,
3 Cir., 1960, 281 F.2d 385, 389. The district court has not expressly
passed on whether that much delay is necessary, or whether the speed is too
deliberate. It retains jurisdiction of the action during the transition.
See Kelly v. Board of Education of City of Nashville, supra; Aaron v.
Cooper, 8 Cir., 1957, 243 F.2d 361, 364. After the approval of Plan
No. 1 as amended, with the elimination of paragraph 6, the future orders
of the district court should be governed by the rule so well stated in
Brown v. Board of Education, 1955, 349 U.S. 294, 300, 301:
"The burden rests upon the defendants to establish
that such time is necessary in the public interest
and is consistent with good faith compliance at the
earliest practicable date. To that end, the courts
may consider problems related to administration, arising
from the physical condition of the school plant, the
school transportation system, personnel, revision of
school districts and attendance areas into compact
units to achieve a system of determining admission to
-351
the public schools on a nonracial basis, and revision
of local laws and regulations which may be necessary
in solving the foregoing problems. They will also con-
sider the adequacy of any plans the defendants may pro-
pose to meet these problems and to effectuate a transi-
tion to a racially nondiscriminatory school system.
During this period of transition, the courts will retain
jurisdiction of these cases."
* * *
Reversed and remanded with directions and for further proceedings.
Supplemental Opinion
RIVES, Circuit Judge:
Further consideration has persuaded us to elaborate upon that part
of the opinion which reads:
"As to Plan No. 1 as amended, we are of the opinion
that paragraph 6, quoted in the margin1,3 should be
stricken because its provisions recognize race as an
absolute ground for the transfer of students, and its
application might tend to perpetuate racial discrimina-
tion. Compare Kelly v. Board of Education of City of
Nashville, 1959, 361 U.S. 924.
"13
"'6. The following will be regarded as some
of the valid conditions to support application for
transfer:
'"a. When a white student would otherwise be
required to attend a school previously serving
colored students only;
'"b. When a colored student would otherwise be
required to attend a school previously serving
white students only;
"'c. When a student would otherwise be required
to attend a school where the majority of students
in that school or in his or her grade are of a dif-
ferent race. ' "
The case cited, while not authority, expresses the doubt of the
Justices who thought that certiorari should be granted as to whether
similar provisions of the Nashville plan are constitutionally invalid.
We are so doubtful of the validity of the provisions of Paragraph 6 that
we think they should not be included in the plan.
We fully recognize the practicality of the argument contained in the
opinion of the Sixth Circuit holding that similar provisions are not un-
constitutional. Kelly v. Board of Education of Nashville, 6 Cir., 1959,
270 F.2d 209, 228, 229, 230. Indeed, this Court has adopted the reasoning
in Briggs v. Elliott, E.D.S.C. 1955, 132 F.Supp. 776, relied on by the
Sixth Circuit, and has further said:
-352-
"The equal protection and due process clauses
of the fourteenth amendment do not affirmatively
command integration, but they do forbid any state
action requiring segregation on account of their
race or color of children in the public schools.
Avery v. Wichita Falls Independent School District,
5 Cir., 1957, 241 F.2d 230, 233. Pupils may, of
course, be separated according to their degree of
advancement or retardation, their ability to learn,
on account of their health, or for any other legiti-
mate reason, but each child is entitled to be
treated as an individual without regard to his race
or color. "
Borders v. Rippey, 5 Cir., 1957, 247 F.2d 268, 271.
Nevertheless, with deference to the views of the Sixth Circuit, it
seems to us that classification according to race for purposes of trans-
fer is hardly less unconstitutional than such classification for pur-
poses of original assignment to a public school.
"Distinctions between citizens solely because of
their ancestry are by their very nature odious to a
free people whose institutions are founded upon the
doctrine of equality. For that reason, legislative
classification or discrimination based on race alone
has often been held to be a denial of equal protec-
tion. Yick Wo v. Hopkins, 118 U.S. 356; Yu Cong Eng
v. Trinidad, 271 U.S. 500; Hill v. Texas, 316 U.S.
400." Hirabayashi v. United States, 1943, 320 U.S.
81, 100.
The special provisions of the eliminated paragraph 6 are objectionable
also on another score. They would apply a rule of law to the desegre-
gated public schools of the Dallas School District different from that
applicable to other public schools in the State of Texas. That paragraph
would apparently deprive the Dallas Board of all discretion, and place
it under the absolute duty to transfer the pupil upon application when
one of the "valid conditions," entirely racial, exists. On the other
hand, under the law generally applicable, the Board has a wide discretion
in transferring pupils from school to school. As was noted in Shuttles-
worth v. Birmingham Board of Education, N.D. Ala., 1958, 162 F Supp
372, 378; aff'd, 1958, 358 U.S. 101: "By virtue of its authority to
administer and supervise the public schools, the defendant Board might
provide for the assignment of pupils to particular schools upon any
reasonable and legitimate basis." In the public schools of Texas gener-
ally, the subject of transfer is covered by the provisions of Article
2901a, Section 4, Vernon's Texas Civil Statutes:
"Sec. 4. Subject to appeal in the respect provided,
each Local Board of School Trustees shall have full and
final authority and responsibility for the assignment,
transfer and continuance of all pupils among and within
the public schools within its jurisdiction, and may
prescribe rules and regulations pertaining to those
-353-
functions. Subject to review by the Board as pro-
vided herein, the Board may exercise this responsi-
bility directly or may delegate its authority to the
Superintendent or other person or persons employed
by the Board. In the assignment, transfer or con-
tinuance of pupils among and within the schools, or
within the classroom and other facilities thereof,
the following factors and the effect or results there-
of shall be considered, with respect to the individual
pupil, as well as other relevant matters: Available
room and teaching capacity in the various schools;
the availability of transportation facilities; the
effect of the admission of new pupils upon established
or proposed academic program; the suitability of
established curricula for particular pupils; the
adequacy of the pupil's academic preparation for
admission to a particular school and curriculum; the
scholastic aptitude and relative intelligence or
mental energy or ability of the pupil; the psycho-
logical qualification of the pupil for the type of
teaching and associations involved; the effect of
admission of the pupil upon the academic progress of
other students in a particular school or facility
thereof; the effect of admission upon prevailing
academic standards at a particular school; the
psychological effect upon the pupil of attendance
at a particular school; the possibility or threat
of friction or disorder among pupils or others; the
possibility of breaches of the peace or ill will or
economic retaliation within the community; the home
environ-psychological relationships with other
pupils and with teachers; the choice and interests of
the pupil; the morals, conduct, health and personal
standards of the pupil; the request or consent of
parents or guardians and the reasons assigned
therefor.
"In considering the factors and the effect or
results thereof the Board or its agents shall not
consider and shall not use as an element of its
evaluation any matter relating to the national
origin of the pupil or the pupil's ancestral
language.
"Local Boards may require the assignment of
pupils to any or all schools within their juris-
diction on the basis of sex, but assignments of
pupils of the same sex among schools reserved for
that sex shall be made in the light of the other
factors herein set forth." (Emphasis ours.)
The eliminated Paragraph 6 seems to us to conflict with the Texas
statute just quoted. Whether so or not, however, that Texas statute
makes it clear that the eliminated Paragraph 6 is superfluous. The
Board already had ample authority to transfer pupils from school to
school upon any reasonable and legitimate basis. Of course, the
-354-
elimination of Paragraph 6 in no way affects or detracts from that author-
ity. To avoid any possible misunderstanding, however, it seems appro-
priate to call attention to the caveat emphasized by the Supreme Court
in affirming the Shuttlesworth decision:
"All that has been said in this present opinion
must be limited to the constitutionality of the law
upon its face. The School Placement Law furnishes
the legal machinery for an orderly administration of
the public schools in a constitutional manner by the
admission of qualified pupils upon a basis of in-
dividual merit without regard to their race or color.
We must presume that it will be so administered. If
not, in some future proceeding it is possible that
it may be declared unconstitutional in its application.
The responsibility rests primarily upon the local school
boards, but ultimately upon all of the people of the
State."
Shuttlesworth v. Birmingham Board of Education, N.D. Ala., 1958, 162
F.Supp. 372, 384; aff'd, 1958, 358 U.S. 101.
In view of this extension of the opinion, it is ordered that the
mandate not issue until twenty-one (21) days from this date, and the
time for filing any application for rehearing is extended accordingly.
APPENDIX D
COURT OF APPEALS DECISIONS IN
BUSH v. ORLEANS PARISH SCHOOL BOARD*
Orleans Parish School Board v. Bush
United States Court of Appeals, Fifth Circuit, March 1, 1957, Rehearinq
Denied April 5, 1957.
Before RIVES, TUTTLE and BROWN, Circuit Judges.
TUTTLE, Circuit Judge.
This is an appeal in an action on behalf of certain New Orleans
Negro school children from a judgment of the District Court for the
Eastern District of Louisiana enjoining appellant "from requiring and
permitting segregation of the races in any school under their super-
vision, 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]."
The principal grounds of appellant's attack on the validity of this
order are: (1) This was a suit against the State of Louisiana and is
prohibited by the Xlth Amendment to the Constitution; (2) The complaint
failed to state a claim on which relief could be granted; (3) The court
erred in holding that the provisions of Art. XII, Sec. 1 of the Louisiana
Constitution-LSA requiring separate schools for white and colored
children and that all of Louisiana Act 555 and Section 1 of 556 of 1954
LSA-R.S. 17:81.1, 17:331-17:334, requiring segregation and assignment of
pupils respectively in public schools were invalid; (4) The proof on
behalf of plaintiffs and countershowing by defendant did not warrant
the issuance of a temporary injunction. These points as well as sub-
sidiary questions will be discussed after a brief statement of the
factual background.
On November 12, 1951, appellees petitioned the School Board "to end
at once the practice and custom of discriminating against Negro students
solely on account of their race and color and admit these Negro children
and all others similarly situated to the public schools of Orleans Parish
which have heretofore and are now restricted to the enrollment of white
children." This petition was denied by official action of the Board on
November 26, 1951. On February 19, 1952, an appeal was taken to the
State Board of Education; no reply having been received, appellees
♦Footnotes omitted in all decisions.
-355-
-356-
again, on August 14th, requested action on their petition; on August 27th
a reply was received over the signature of the Secretary of the State
Board, which while not categorically denying the petition stated: "The
Board feels that many of the items included are wholly within the juris-
diction of the Board." On September 5, 1952, the original complaint in
this action was filed. It alleged great disparities between the physical
plant and the content of the curricula of Negro and white schools, and
also alleged discrimination because of segregation per se. It alleged
that the Board was pursuing a policy and custom of maintaining separate
schools for white and Negro children under the provisions of Art. XII,
Sec. 1 of the Louisiana Constitution. It sought a declaratory judgment
on the questions, among others, (a) "whether the policy, custom, prac-
tice and usage of the defendants ... in denying on account of race or
color to infant plaintiffs and other similarly situated . . . educational
opportunities, advantages and facilities . . . equal to the educational
opportunities, advantages and facilities afforded and available to white
children ... is unconstitutional and void as being a denial of the
equal protection of the laws guaranteed under the Fourteenth Amendment
to the Constitution of the United States;" (b) "whether Article XII Sec.
1 of the Constitution of 1921 of the State of Louisiana which prohibits
infant plaintiffs from attending the only public schools of Orleans
Parish where educational opportunities, advantages and facilities equal
to those afforded all other qualified pupils ... are available and
force them to attend secondary schools in Orleans Parish solely because
of race and color is unconstitutional and void as a violation of the
Fourteenth Amendment of the Constitution of the United States." It also
prayed a judgment declaring that the separate schools provision of
Article XII, Sec. 1 of the Louisiana Constitution is a denial of the
equal protection clause of the Fourteenth Amendment and is therefore
unconstitutional and void, and for a permanent injunction enjoining
defendant Board from following such provision as being in contravention
of rights guaranteed under the United States Constitution.
By stipulation proceedings on this complaint were suspended on
account of the pendency of the School Segregation cases in the Supreme
Court of the United States.
After the first opinion in the Brown case the State Legislature of
Louisiana proposed and the people adopted an amendment to Art. XII, Sec.
1 of the State Constitution which had already provided, in effect, that
all public elementary and secondary schools should be operated separately
for white and colored children by adding that "This provision is made
in the exercise of the state police power to promote and protect public
health, morals, better education and the peace and good order in the
State, and not because of race. The Legislature shall enact laws to
enforce the state police power in this regard." The Legislature then
promptly enacted Acts 1954, No. 555 and 556. Section 1 of 555 merely
repeated the constitutional requirement of separate schools. Section 2,
3 and 4 provide for penalties to be imposed on local boards and an in-
dividual failing, to observe the requirements as to separate schools in
Section 1. Section 5 is a separability clause. Act 556, adopted at the
same time, is the pupil assignment statute. It provides for assignment
of each pupil each year by the parish superintendent to a particular
school, and, without providing any standards other than those of Act 555
for separation of the races, provides for an appeal to the local board
and then to the State Board and thereafter to the state district court.
-357-
Fol lowing the enactment of these laws, appellees petitioned the
school board to take immediate steps to reorganize the schools under its
jurisdiction on a nondiscriminatory basis. No reply was made to this or
to a subsequent petition, but the board engaged counsel to "defend, as
special attorney for the Board, both in the trial court and in the Courts
of Appeal" the action then pending. Soon thereafter appellees filed a
first amended complaint setting up the provisions of the amended consti-
tution and the newly enacted statutes, a prayer for declaratory relief
holding them invalid and renewing their prayer for preliminary and per-
manent injunction against the enforcement by the board of the provisions
of the new laws.
The defendant board filed its motion to dismiss and the state of
Louisiana prayed the right to intervene solely for the purpose of filing
a motion to dismiss the suit as being one against the State. No order
appears to have been entered allowing this intervention and the State is
not appearing as a party on this appeal, although a brief has been
tendered on behalf of the State as amicus curiae. Its petition for leave
to file is hereby granted and its brief has been considered by the Court.
Nature of the Suit
[1] We consider first whether there is any merit in appellant's
contention that this is in fact a suit brought by citizens of the State
of Louisiana against the State. Of course such a suit is prohibited by
the principle of sovereign immunity and by analogy to the Eleventh
Amendment to the Constitution of the United States. Hans v. State of
Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.
It would seem hardly worth our considering this contention in light
of the fact that all of the School Segregation Cases were actions of the
same type as the one before us (suits against a state official or board
operating under State authority) were it not for the fact that both the
appellant and the Attorney General of the State urge it so strongly upon
us. The burden of their argument is that this is a suit to compel state
action, which under a long line of cases, including Great Northern Life
Insurance Company v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121, and
Ford Motor Company v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347,
89 L.Ed. 389, falls within the prohibition whether nominally against the
State or against state officials. But this suit does not seek to compel
state action. It seeks to prevent action by state officials which they
are taking because of the requirements of a state constitution and laws
challenged by the plaintiffs as being in violation of their rights under
the Federal Constitution. If in fact the laws under which the board here
purports to act are invalid, then the board is acting without authority
from the State and the State is in nowise involved. That a federal court
can entertain a suit where such a situation is alleged has long been
recognized. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 453, 52, L.Ed.
714, the Supreme Court said in such a case as this:
". . . It is contended that the complainants do
not complain and they care nothing about any action
which Mr. Young might take or bring as an ordinary
individual, but that he was complained of as an
officer, to whose discretion is confided the use of
the name of the state of Minnesota so far as
-358-
litigation is concerned, and that when or how he shall
use it is a matter resting in his discretion and can-
not be controlled by any court.
"The answer to all this is the same as made in
every case where an official claims to be acting
under the authority of the state. The act to be
enforced is alleged to be unconstitutional; and if
it be so, the use of the name of the state to en-
force an unconstitutional act to the injury of com-
plainants is a proceeding without the authority Of,
and one which does not affect, the state in its
sovereign or governmental capacity. It is simply an
illegal act upon the part of a state official in
attempting by the use of the name of the state to
enforce a legislative enactment which is void because
unconstitutional. If the act which the state at-
torney general seeks to enforce be a violation of
the Federal Constitution, the officer, in proceeding
under such enactment, comes into conflict with the
superior authority of that Constitution, and he is
in that case stripped of his official or representa-
tive character and is subjected in his person to the
consequences of his individual conduct. The state
has no power to impart to him any immunity from
responsibility to the supreme authority of the
United States. "
Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct.
321, 96 L.Ed. 335, relied on by the trial court, is the most recent
pronouncement of the Supreme Court to the same effect. See also School
Board of City of Charlottesville, Va. v. Allen, 4 Cir., 1956, 240 F.2d
59, where the Court of Appeals for the Fourth Circuit held a suit such
as this not to be one against the State of Virginia.
There is no merit in the claim of appellant that the court was
without jurisdiction to try this case as being a suit against the state.
The substance of this suit is that the school board is unconstitutionally
forcing them to attend schools that are segregated according to race
and their prayer is that the board be enjoined from continuing to do so.
If plaintiffs are right in their contention, then they can obtain com-
plete relief from this defendant, because any sanctions compelling it to
continue its illegal conduct fall when the Court determines that such
sanctions are illegal .
Exhaustion of Administrative Remedies
[2] The second ground of appellant's motion to dismiss was its
contention that the complaint fails to state a claim on which relief can
be granted. The first basis for this attack is that, assuming all the
allegations as to unconstitutional acts by the defendant to be true, the
plaintiffs have not pursued their administrative remedies for relief
before filing of their suit. In asserting this contention appellant
seems to overlook completely the fact that when this suit was filed
there was no pupil assignment law on the statute books. So far as has
-359-
been called to our attention the plaintiffs did all they were required
to do administratively in 1951 to seek relief from the condition of which
they were complaining, i.e. inequality and discrimination between the
facilities of white and colored schools and the discrimination resulting
per se from the operation of a segregated school system. They applied
to the defendant for relief and appealed its adverse decision to the
state board which remanded them to the local board. Where else they
could go administratively is nowhere suggested by appellant, which argues
the entire matter as though there had been a pupil assignment statute
on the books.
[3] But assuming that the trial court and we should view this
question in the light of conditions after the passage of the 1954 acts,
which, however, we do not decide, there is still no merit in appellant's
argument. Appellees were not seeking specific assignment to particular
schools. They, as Negro students, were seeking an end to a local school
board rule that required segregation of all Negro students from all white
students. As patrons of the Orleans Parish school system they are un-
doubtedly entitled to have the district court pass on their right to seek
relief. Jackson v. Rawdon, 5 Cir., 235 F.2d 93, cert, denied 352 U.S.
925, 77 S.Ct. 221, 1 L.Ed. 2d 160, and see School Board of City of Charlot-
tesville, Va. v. Allen, supra.
Moreover, so long as assignments could be made under the Louisiana
constitution and statutes only on a basis of separate schools for white
and colored children to remit each of these minor plaintiffs and thousands
of others similarly situated to thousands of administrative hearings
before the board for relief that they contend the Supreme Court has held
them entitled to, would, as the trial judge said, "be a vain and useless
gesture, unworthy of a court of equity, ... a travesty in which this
court will not participate." See Adkins v. School Board of City of
Newport News, D.C.E.D.Va., 148 F.Supp. 430.
Proof of Actual or Immediate Irreparable Injury
[4] A further basis for appellant's claim that the suit should be
dismissed was that there was no showing of actual or immediate irreparable
injury. It may well be argued to the contrary that, assuming that plain-
tiffs are being denied their constitutional right to equality with members
of the white race in their educational opportunities, every day that
passes counts as an irremediable loss to the school child thus discrimin-
ated against. The simplest answer to this contention, however, is in the
limited action of the court, which was well within what was prayed for by
appellees. It declared the rights of the parties as they prayed and
restrained the board 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 nondiscriminatory basis with all deliberate speed
as required by the decision of the Supreme Court in Brown v. Board of
Education of Topeka, supra."
Such an order, while in the form of a preliminary injunction, con-
tained no immediately compulsive features so far as relieving the plain-
tiffs of day by day injury was concerned. Inasmuch as they do not
complain of the failure of the court to afford them immediate relief it
seems to us that there is little ground for the board to do so on this
particular ground.
-JbU-
Constitutionality of Louisiana Constitution and Laws
We have heretofore dealt with contentions advanced by appellant
which it says entitle it to a dismissal of the action whether or not the
plaintiffs are being denied their constitutional rights. We now come to
the question whether under the statutes of Louisiana enacted pursuant
to the amendment to that State's constitution the legal position of the
parties here differs from that which the litigants occupied in the School
Segregation case, supra. Obviously if nothing new or different has been
added the plaintiffs are entitled to a declaratory judgment declaring
their right "to have the school board, acting promptly, and completely
uninfluenced by private and public opinion as to the desirability of
desegregation in the community, proceed with deliberate speed consistent
with administration" to abolish segregation in the Orleans parish school
system. Jackson v. Rawdon, supra, 235 F.2d at 96.
The new circumstance to which appellant points is the amendment to
the Louisiana constitution which, in effect, provides that there shall
continue to be racially separate schools, which separation is stated for
the first time to be "in the exercise of the state police power to pro-
mote and protect public health, morals, better education and the peace
and good order in the State, and not because of race." There is also the
new pupil assignment law which we have already discussed.
[5] Appellant nowhere in its brief undertakes to explain the pro-
cess of reasoning by which it seeks to have this Court conclude that
racial segregation in the schools is any less segregation "because of
race" merely because the stated basis of adhering to the policy is in the
exercise of the State's police power. Nor does the brief filed by the
Attorney General of Louisiana discuss the issue. However, the affidavits
introduced on the hearing for preliminary injunction make clear what the
briefs do not. They deal with the alleged disparity between the two
races as to intelligence ratings, school progress, incidence of certain
diseases, and percentage of illegitimate births, in all of which statis-
tical studies one race shows up to poor advantage. This represents an
effort to justify a classification of students by race on the grounds
that one race possesses a higher percentage of undesirable traits, attri-
butes or conditions. Strangely enough there seems never to have been any
effort to classify the students of the Orleans Parish according to the
degree to which they possess these traits. That is, there seems to have
been no attempt to deny schooling to, or to segregate from other children,
those of illegitimate birth or having social diseases or having below
average intelligence quotients or learning ability because of those par-
ticular facts. Whereas any reasonable classification of students
according to their proficiency or health traits might well be considered
legitimate within the normal constitutional requirements of equal pro-
tection of the laws it is unthinkable that an arbitrary classification
by race because of a more frequent identification of one race than another
with certain undesirable qualities would be such reasonable classification.
[6] The use of the term police power works no magic in itself.
Undeniably the States retain an extremely broad police power. This
power, however, as everyone knows, is itself limited by the protective
shield of the Federal Constitution. Thus, for instance, municipal zoning
laws passed to require racially segregated residential zoning have been
struck down under the Fourteenth Amendment. In Buchanan v. Warley, 245
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U.S. 60, at page 74, 38 S.Ct. 16, at page 18, 62 L.Ed. 149, the Supreme
Court said:
"The authority of the state to pass laws in the
exercise of the police power, having for their ob-
ject the promotion of the public health, safety and
welfare is very broad as has been affirmed in
numerous and recent decisions of this court. Fur-
thermore the exercise of this power, embracing
nearly all legislation of a local character is not
to be interfered with by the courts where it is
within the scope of legislative authority and the
means adopted reasonably tend to accomplish a law-
ful purpose. But it is equally well established
that the police power, broad as it is, cannot
justify the passage of a law or ordinance which runs
counter to the limitations of the federal Consti-
tution; that principle has been so frequently
affirmed in this court that we need not stop to cite
the cases. "
To the same effect see the Georgia case of Carey v. City of Atlanta, 143
Ga. 192, 84 S.E. 456, L.R.A. 1915D, 684.
[7, 8] Probably the most clear cut answer to this effort by the
State of Louisiana to continue the pattern of segregated schools in spite
of the clear and unequivocal pronouncement of the Supreme Court in the
School Segregation cases is that this is precisely what was expressly
forbidden by those decisions. Whatever may have been thought heretofore
as to the reasonableness of classifying public school pupils by race for
the purpose of requiring attendance at separate schools, it is now per-
fectly clear that such classification is no longer permissible, whether
such classification is sought to be made from sentiment, tradition,
caprice, or in exercise of the State's police power.
From what we have said the conclusion is obvious that the state con-
stitutional provisions as to maintaining separate schools for white and
colored children is in direct conflict with the equal protection clause
of the Fourteenth Amendment and is void and of no effect. The same is
true of the statute designed to implement this constitutional requirement,
Act 555, of 1954.
[9] We next come to the Pupil Assignment Law. Although we have
already expressed the view that this statute did not have the effect of
preventing the commencement and maintenance of this action, the role it
might have in the future disposition of the case by the trial court makes
it appropriate for us to answer appellant's contention that that court
erred in holding it invalid.
Whatever might be the holding as to the validity of an administrative
pupil assignment statute containing reasonably certain or ascertainable
standards to guide the official conduct of the superintendent of the local
school board and to afford the basis for an effective appeal from arbi-
trary action, Act 556 is not such a statute. The plaintiffs, seeking
to assert their right to attend nonsegregated schools as guaranteed them
under the Constitution, would be remitted to an administrative official
guided by no defined standards in the exercise of his discretion. In such
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circumstances no number of hearings or appeals would avail them anything
because it would be impossible for them to bring forward any proof bearing
on whether they possessed those attributes, qualifications, or charac-
teristics that would bring them within, the group of students permitted to
attend the particular school or schools. Attempts by statute to give any
official the power to assign students to schools arbitrarily according to
whim or caprice are legally impermissible, especially if considered in
light of the history of assignments made in a manner that has now been
held to be unconstitutional and of the recently readopted requirement of
the state constitution reaffirming such unconstitutional standards, which
is reinforced by the heavy sanctions against any official permitting a
departure therefrom contained in a companion statute. Such a statute is
unconstitutional either because it has on its face the effect of de-
priving appellees of their liberty or property without due process of law
or as having implied as its only basis for assignments the prohibited
standard of race. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,
30 L.Ed. 220, and Davis v. Schnell, D.C.S.D. Ala. (3 judge court), 81
F.Supp. 872, affirmed, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093. Thus
we need not determine whether the enactment of this law contemporaneously
with Act 555 and closely following the readoption of the racially separate
schools provision of the state constitution, under circumstances that
make it plain to all that the Assignment Act too was a further effort to
stave off the effect of the Supreme Court's school decisions, is suf-
ficient of itself to condemn it as part of the illegal legislative plan
comprehended in Act 555, although this is precisely the type of deter-
mination on which the three judge court in Davis v. Schnell, supra, based
its decision striking down an amendment to the Alabama constitution. Nor
is it necessary for us to pass on the possible validity of a statute that
would merely grant to school officials the power to promulgate rules of
attendance, zoning of school population, transfers and the like, so long
as all such rules are applied in a manner as to affect all pupils without
regard to their race, and are not used as a mere screen to perpetuate
compulsorily segregated schools contrary to the court's order.
[10] There remains the complaint of the appellant that this is not
truly a class action. What we have heretofore said with respect to the
nature of the relief sought makes it clear that there is no merit in this
contention. Here is a well-defined class whose rights are sought to be
vindicated. We think that our decisions in Adams v. Lucy, 5 Cir., 228
F.2d 619, certiorari denied 351 U.S. 931, 76 S.Ct. 790, 100 L.Ed. 1460,
and Board of Supervisors of L.S.U., etc. v. Tureaud, 5 Cir., 225 F.2d
434, affirmed en banc, 5 Cir., 228 F.2d 895, certiorari denied 351 U.S.
924, 76 S.Ct. 780, 100 L.Ed. 1454, by clearest implication reject appel-
lant's contention that in such a situation the named plaintiffs may not
bring a class action on behalf of themselves and all others similarly
situated. See also Carter v. School Board of Arlington County, Va.,
4 Cir., 182 F.2d 531, and Frasier v. Board of Trustees of University of
North Carolina, D.C., 134 F.Supp. 589, affirmed per curiam 350 U.S. 979,
76 S.Ct. 467, 100 L.Ed. 848.
Moreover, it is worthy of note that the series of cases generally
known as the School Segregation cases themselves were all class actions
in the same sense as is the one before us.
In sum, therefore, we find no basis for the appellant's attack on
the order entered by the trial court. The able and experienced trial
judge gave full recognition to the administrative difficulties attendant
upon changing the schools of the Parish of Orleans, including as it
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does, the schools of the City of New Orleans, from the established
pattern of segregation on account of race. Although requiring immediate
acceptance of the principle of non-segregated schools he allowed the
Board time to put it into effect. Clearly implying that arrangements
should be started at once, he nevertheless fixed the date after which
there were to be no further distinction based on race at "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
Edcuation."
[11,12] It is evident from the tone and content of the trial
court's order and the willing acquiescence in the delay by the aggrieved
pupils that a good faith acceptance by the school board of the underlying
principle of equality of education for all children with no classifica-
tion by race might well warrant the allowance by the trial court of time
for such reasonable steps in the process of desegregation as appears to
be helpful in avoiding unseemly confusion and turmoil. Nevertheless
whether there is such acceptance by the Board or not, the duty of the court
is plain. The vindication of rights guaranteed by the Constitution can
not be conditioned upon the absence of practical difficulties. However
undesirable it may be for courts to invoke federal power to stay action
under state authority, it was precisely to require such interposition
that the Fourteenth Amendment was adopted by the people of the United
States. Its adoption implies that there are matters of fundamental
justice that the citizens of the United States consider so essentially
an ingredient of human rights as to require a restraint on action on
behalf of any state that appears to ignore them.
The orders of the trial court are
Affirmed.
Orleans Parish School Board v. Bush
United States Court of Appeals, Fifth Circuit, February 15, 1958.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
TUTTLE, Circuit Judge.
This is a second appearance of this case here and the second attempt
to have the court set aside a preliminary injunction entered on February
15, 1956, in favor of plaintiffs, Bush, et al., and against the defen-
dant, Orleans Parish School Board, the sole ground for its reappearance
after we affirmed the trial court's order on the merits, being the claim
that the temporary injunction was void because the plaintiff failed to
make the $1,000 bond that was required to be made in the court's injunc-
tion order until after affirmance of the injunction by this Court.
[Decree Below]
The temporary injunction which was issued by the trial court required
no immediate affirmative action or cessation of action. It provided as
follows:
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"IT IS ORDERED, ADJUDGED AND DECREED that the defen-
dant, 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 neces-
sary to make arrangements for admission of children to
such schools on a racially nondiscriminatory basis
with all deliberate speed as required by the decision
of the Supreme Court in Brown v. Board of Education of
Topeka, supra."
There then followed the paragraph relating to the bond:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
a bond be filed by plaintiffs herein in the sum of
One Thousand Dollars ($1,000.00) for the payment of
such costs and damages as may be incurred or suf-
fered by any party who is found to be wrongfully
enjoined or restrained, said bond to be approved
by the Clerk of this Court."
The plaintiffs filed no bond immediately thereafter or at any time
pending the appeal that was timely taken by the defendant school board.
Neither on the appeal nor by motion in the district court did the Board
take exception to the failure of the plaintiff to make bond until after
this Court published its opinion affirming the injunction order. Then,
for the first time, it filed its motion with the trial court "to vacate,
set aside and to declare the preliminary injunction issued herein on
February 15, 1956, to be null and void and without effect on the ground
that plaintiffs have failed to file the bond required by the decree of
this Court and by the law."
Thereupon the plaintiffs filed their bond, which was approved on
June 19th by the trial judge. Thereafter, on June 26th, the motion to
vacate came on for a hearing and was denied by the trial court. This
appeal is from the order of denial.
[Rule 64(c), FRCP]
The appellant here contends that Rule 64(c) of the Federal Rules of
Civil Procedure requires the making of the bond as a condition precedent
to the becoming effective of the temporary injunction, that since none
was made "the preliminary injunction was not in effect or in fact issued
during this sixteen months period." From this appellant argues that when
thereafter the bond was filed this could not cause the injunction to
"issue" for the first time. No authorities are cited by appellant in
support of this assertion. The School Board relies on cases which hold
that a failure of the district court to make provision for the issuance
of a bond are void. See Chatz v. Freeman et al . , 7 Cir., 204 F.2d 764.
The appellees take the position that the requirement of security by
rule 64(c) was intended to protect a party against damage caused by the
-ibb-
wrongful issuance of a temporary injunction, citing United States v.
Onan, 8 Cir., 190 F. 2d 1, 7; that in this case the injunction order has
been affirmed on appeal and it obviously therefore was not erroneously
issued; thus appellant could not possibly suffer any damage. They con-
tend that if the failure to file the bond had any effect, it was a mere
irregularity which was cured by its subsequent execution. See Standard
Bonded Warehouse Co. v. Cooper, 4 Cir., 30 F.2d 842, 845.
[Jurisdiction of Appeals Court]
Although the point is not raised by appellees, who rest confidently
on the merits, we must consider the threshold question whether the order
of the trial court is reviewable. Normally, of course, the Courts of
Appeals review only final orders. There is an exception under 28 U.S.C.A.
§1292 as to certain interlocutory orders relating to injunctions. This
section provides:
"The courts of appeals shall have jurisdiction of
appeals from:
(1) Interlocutory orders . . . granting, con-
tinuing modifying, refusing or dissolving injunc-
tions, or refusing to dissolve or modify injunc-
tions ..."
Since, obviously, the order which required the making of bond could
not be void because of a subsequent failure to make it, the appellant's
motion to declare the injunction to be null and void and without effect
will be treated as a motion to "dissolve" the injunction. As such the
order refusing to do so is appealable.
We have heretofore affirmed the order of the trial court. Thus, no
asserted defect in that order can now be considered by us. All we can
consider is what transpired subsequent to the entry of the temporary
injunction. As we have already pointed out, the injunction required no
act on the part of the defendants, and in fact it prohibited no specific
act in the sense that the defendants could be found in violation of the
order without further definitive injunctive order by the court. The
fact that the bond was not executed could not, therefore, conceivably
have damaged the defendants. That this is so is eloquently testified
to by the failure of the defendant itself to take notice of the omission.
The affirmance by this Court of the judgment before defendants sought to
have it vacated has settled for all time that defendants have not been,
and can never be, "wrongfully enjoined" by the order. The bond was
functus officio when made by the plaintiffs. Their failure to make it
earlier, when it might have had an office to perform, was waived by the
defendant when it let the order stand against it until affirmed on
appeal .
Judgment AFFIRMED.
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Orleans Parish School Board v. Bush
United States Court of Appeals, Fifth Circuit, June 9, 1959.
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 nondiscriminatory 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 pre-
liminary 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 classi-
fication 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 per-
manent injunction against the Board in the precise terms of its prior
preliminary order quoted above. The Board has appealed.
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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 .the 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 the appellant
Board, it is still the proper party to be made subject to any proper
court order touching upon th manner of the operation of the schools under
its control .
Judgment affirmed.
ON PETITION FOR REHEARING.
TuTTLE, Circuit Judge.
The petition for rehearing is DENIED. Since it appears from appel-
lant's petition for rehearing, citing the two Supreme Court cases most
recently applying the principle of federal court abstention from ruling on
the constitutionality of, or construing, state laws until they are
interpreted by the state courts, Louisiana Power & Light Co. v. City of
Thibodaux, 79 S.Ct. 1070, and Harrison v. National Association for the
Advancement of Colored People, 79 S.Ct. 1025, that it does not under-
stand the basis of our decision, we shall attempt to make more clear what
was decided in the short per curiam opinion.
Nothing in either of these cases touches upon the issue before us.
No cause for abstention by the federal court is shown merely because a
suit is brought against state officials whose conduct may be affected by
untested state legislation. It is only when the federal court is called
on to interpret such state statute or rule on its constitutionality that
the rule applies.
In the first of these two cases the trial court was called upon to
construe a Louisiana statute. The entire issue before the district
court was to be resolved by such construction. In the Harrison case the
suit before the three- judge federal court was for the purpose of attack-
ing the constitutionality of the Virginia statute, which had not been
construed by the Virginia courts. The court pointed out that the state
court construction of it might obviate the necessity for the federal
court to make a decision as to its constitutionality.
Here, it has been held repeatedly that the appellant School Board
cannot legally continue to operate the public schools confided to its
management on a racially segregated basis. No statute of the State of
Louisiana can make such management of the schools legally permissible.
It makes no difference how the state laws may be changed in order to
take away from the Board the power to change the operation of the schools
to a non-segregated basis. The Board still cannot operate them illegally.
The plaintiffs, under long recognized principles, enunciated by us in
Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, can, by
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injunction, prevent the operating agency from acting on behalf of the
state in an illegal manner to their injury. Thus, this Board is still
the only proper party to be enjoined and it is subject to injunction
even though the state in its wisdom might see fit to deprive it of the
power to operate legally.
We do not reach any question of construction of the state laws at
all, once it is determined that this defendant is the agency engaged in
the operation that has now been held to be illegal as to these plain-
tiffs. No conceivable construction of the state statute can affect this
result in the slightest degree. Moreover, it must be borne in mind that
this is not a diversity action, but it is an action brought by citizens
of the State of Louisiana by virtue of a federal law giving the district
court jurisdiction to entertain such a suit. There was no basis for the
trial court to abstain from proceeding to a final decision and order in
the case, and no basis for us to remand it for a stay.
Orleans Parish School Board v. Bush
United States Court of Appeals for the Fifth Circuit, June 2, 1960.
Before TUTTLE, CAMERON and WISDOM, Circuit Judges.
Refusal to Stay, Fifth Circuit, June 2, 1960
Per Curiam:
The motion filed by Appellant on May 31, 1960 praying a stay of the
order entered by the Honorable J. Skelly Wright, the trial judge, on the
16th day of May, 1960, having been fully considered the same is hereby
denied.
Dissent
CAMERON, Circuit Judge, Dissenting:
In dissenting from the order of this Court denying the motion of
Orleans Parish School Board to stay pending appeal the enforcement of the
order of the district court of May 11, 1960, I feel constrained to out-
line briefly my reasons. The order of the district court provides:
"IT IS ORDERED that beginning with the opening
of school in September, 1960, all public schools in
the City of New Orleans shall be desegregated in
accordance with the following plan:
A. All children entering the first grade may attend
either the formerly all white public school
nearest their homes, or the formerly all Negro
public school nearest their homes, at their
option.
B. Children may be transferred from one school
to another, provided such transfers are not
based on consideration of race."
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The motion for stay presented to us recites that the Board's appeal
from the order of the district court involves that court's denial of its
motion to vacate the court's order requiring it to present a plan of
integration in connection with which denial the district court, acting
through a single judge and not in conformity with the statutes providing
for three-judge courts, 28 U.S.C. §2281, ruled that a statute of the
State of Louisiana, Act 319 of 1956, under which the School Board was
making the request, was unconstitutional as being in violation of the
Fourteenth Amendment of the Constitution of the United States. The motion
further avers that application for stay had been made to and denied by
the district court, averring further that the appeal presented serious
and substantial questions of law upon which this Court should be per-
mitted to pass, and that irreparable injury would result to appellant,
to the citizens of New Orleans and possibly to all the citizens of the
State of Louisiana if said order should be enforced. I am of the clear
opinion thatthe order is of doubtful validity and that the circumstances
set forth in the motion for stay require that its enforcement be held in
abeyance until the appeal can be reached in due course by this Court.
I.
There are several reasons why the order appealed from may by this
Court be found to be invalid. It involves, in a vital respect, the lives
of eleven thousand twenty-four school children and their parents, marking
a radical departure from the conditions under which they have, up to now,
lived their lives. And it inevitably involves the community at large.
The Supreme Court in the series of Segregation Cases held that wide
discretion was reposed in the district courts, and emphasized that such
courts were to conduct hearings to determine conditions prevailing at
the time their orders should be entered. And by Rule 52(a), F.R.C.P.
it is provided: "In all actions tried upon the facts without a jury
. . . the court shall find the facts specially and state separately its
conclusions of law thereon and direct the entry of the appropriate
judgment; and in granting or refusing interlocutory injunctions the court
shall similarly set forth the findings of fact and conclusions of law
which constitute the grounds of its action." [Emphasis added.] The
order appealed from here was entered without the hearing of any evidence
at all. There was nothing before the court upon which it could base its
order, except its own knowledge or "what it read in the papers." The
requirement that the district court make findings of fact and conclusions
of law was inserted so that the appellate courts could test whether the
discretion vested in the district courts had been properly exercised.
It is settled in this Circuit that segregation as such is not con-
demned and that integration is not required by the Fourteenth Amendment.
Its prohibition is against state action depriving "any person" of life,
liberty or property without due process of law and denial "to any person"
the equal protection of the laws.
The district court did not have before it any proof that any person
included in the group to which the order was made to apply had been
denied the equal protection of the laws. It simply ordered that the
public schools in the City of New Orleans "shall be desegregated in
accordance with the following plan." It thereupon sought to deal with
a group of children, which we find from an affidavit attached to the
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motion for stay presented to us, included six thousand nine hundred
eighty-two Negro children and four thousand forty-two white children.
It gave each of said children the right to attend the school nearest his
or her home. The showing before us, but not before the district court,
was that, in the last school year, a large percentage of children, both
Negro and white, were not assigned to schools nearest their respective
homes, but to the nearest school which was able to accommodate them, this
being necessary because of the crowded conditions existing in both white
and Negro schools.
Under these conditions it is, it seems to me, manifest that, if any
considerable number of the six thousand nine hundred eighty-two Negro
children should demand entrance into "the formerly all white public
school nearest their homes," nothing but chaos could result and the en-
forcement of the order would be accompanied by nothing but harm to the
children, the parents and the teachers of both races and to the entire
community. I think it exceedingly doubtful if the court below had the
power, of its own motion and without calling witnesses before it, to
give it some knowledge of the situation, to enter an order of such
breadth and scope amounting in reality to an order for a sort of
scrambled or pell-mell integration.
II.
I am also exceedingly doubtful of the power of the court below to
declare Article 319 of the Laws of Louisiana of 1956, RS 17:344, uncon-
stitutional in the course of conducting the proceedings which led to the
entry of the order before us. The Orleans School Board had, by proper
pleadings, brought this state statute before the court below contending
that, under it, the Legislature of the State of Louisiana had been given
jurisdiction of the school matters involved in the suit, to the exclusion
of the School Board. If the authority of the School Board to act in the
matter before the court had been taken away from the Board and had been
vested in the legislature, the court had no right to enter the order it
did enter without first striking down the Louisiana Statute. According
to the application before us and the exhibits, the court below did this by
declaring the Act unconstitutional. This, it seems to me, the district
court had no right to do.
The last time such an action has been taken with the sanction of the
Supreme Court was when, in 1908, the Attorney General of Minnesota was
convicted of contempt of court for violating an order of a United States
District Court of that state striking down a Minnesota statute. In his
dissenting opinion in that case, Mr. Justice Harlan used this language
guoted in Florida v. Jacobson, infra: "We have come to a sad day when
one subordinate Federal judge can enjoin the officer of a sovereign state
from proceeding to enforce the laws of the state passed by the legislature
of his own state, and thereby suspending for a time the laws of the
state. ..."
To correct the situation brought about by the Young case, the
Congress in 1910 passed the statutes which now are '28 U.S.C.A. SS2281-
2284, providing that attacks upon state statutes on the ground that they
violate the Federal Constitution must be heard by a three-judge court.
What the judge below did in this case is in line with a practice sporadic-
ally observed in this Circuit in recent years in Segregation Cases. But
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all doubt concerning the legality of such a practice has been removed by
the recent decision of the Supreme Court in Florida Lime & Avocada Growers,
Inc. et al . v. Jacobson, Director, etc., Mar. 7, I960,- — U.S. — -, 28 L.W.
4165, et seq. The Court quoted from an opinion by Mr. Chief Justice
Taft these words:
"The wording of the section leaves no doubt that
Congress was by provisions ex industria seeking to
make interference by interlocutory injunction from a
federal court with the enforcement of state legis-
lation, regularly enacted and in course of execu-
tion, a matter of the adequate hearing and the full
deliberation which the presence of three judges, one
of whom should be a Circuit Justice or Judge, was
likely to secure. It was to prevent the improvident
granting of such injunctions by a single judge, and
the possible or necessary conflict between federal and
state authority always to be deprecated."
The Court proceeded to a full discussion of the statutes, their history
and application, and to indicate that the statutes should be interpreted
broadly to insure that a single federal judge should not offend state
authorities by any ruling in the course of a trial which adjudicated
that a state statute was in contravention of the Federal Constitution.
Certainly it is apparent that the judge below, acting by himself, did
just this. Such a short-circuiting of established statutory proceedings
was not, in my opinion, permissible and I think that, at very least, the
question thus raised is a substantial one.
Being of the opinion that the action of the court below is not, on
the showing before us, sustainable and that the challenge made by the
appeal is probably substantial and in good faith, I think it is our duty
to stay the execution of the order until we can pass upon the appeal.
I therefore dissent from the contrary action by the majority.
Bush v. Orleans Parish School Board
United States Court of Appeals for the Fifth Circuit, August 6 and
28, 1962.
Court of Appeals Opinion, August 6, 1962
Before RIVES, BROWN, and WISDOM, Circuit Judges.
WISDOM, Circuit Judge.
The Orleans Parish School Board maintains a dual school system in
the City of New Orleans. A dual school system is a compulsory biracial
system in which certain schools are designated for Negro students and
staffed by Negro personnel and certain other schools are designated for
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white students and staffed by white personnel. Each school draws students
from its own attendance area. The city, therefore, is divided into
geographical districts (zones) for Negro schools that are separate but
often overlap the districts for white schools.
May 16, 1960, the District Court for the Eastern District of Louisiana
ordered desegregation of public schools in New Orleans on a stepladder
plan of desegregating a grade a year commencing with the first grade for
the 1960-61 term. Two years later, the district court modified the 1960
Plan by an order entered April 9, 1962, and by a second order entered May
29, 1962. The plaintiffs and the Orleans Parish School Board appeal from
the court's second order. We approve the order except as this Court now
modifies it.
I.
This case goes back to November 1951 when certain Negro school
children, through their parents, petitioned the Orleans Parish School
Board to desegregate the New Orleans public schools. September 4, 1952,
they filed a school desegregation suit against the Board. At that time
there were five school segregation cases pending in the United States
Supreme Court. The plaintiffs and the School Board agreed to suspend
litigation until the Supreme Court should have decided the constitutional
issues in the School Segregation Cases. The Supreme Court heard argument
on these cases in December 1952, put them back on the docket in 1953 and,
after the cases were reargued, announced its decision May 17, 1954, in
Brown v. Board of Education.
Six years ago, on February 15, 1956, the district court entered a
preliminary injunction ordering the School Board to desegregate the New
Orleans schools "with all deliberate speed." Up to that time the Board's
opposition to desegregation had been dictated for the most part by long-
standing customs and laws long on the statute books. After the injunc-
tion was issued the Louisiana legislature enacted a massive body of laws
intended to preserve segregation in the schools. For over three years the
Orleans Parish School Board seemed hopelessly bogged down in a morass of
confusing, harassing legislation. Finally, when it was apparent that
the Board could not take independent action, the district court, July
15, 1959, ordered a desegregation plan filed March 1, 1960. Later, the
court extended the deadline to May 16, 1960. In April 1960, the Orleans
Parish Court of Appeals ruled that under Act 319 of 1956 the legislature,
not the Board, had the right to reclassify schools classified by race.
Caught again in the middle between Louisiana courts and federal courts,
the Board was empty-handed on May 16, 1960. As a result, on that date,
having received no plan from the Board, the district court ordered the
New Orleans schools desegregated under its own plan of desegregating a
year at a time according to a step-ladder program, beginning September
1960. The order reads:
"IT IS ORDERED that beginning with the opening of
schools in September 1960, all public schools in the
City of New Orleans shall be desegregated in accordance
with the following plan:
"A. All children entering the first grade may attend
either the formerly all white public school nearest
their homes, or the formerly all negro public school
nearest their homes, at their option.
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"B. Children may be transferred from one school
to another, provided such transfers are not based
on considerations of race."
July 29, 1960, the State of Louisiana, through its Attorney General,
obtained an injunction in the state courts restraining the Board from
desegregating public schools in New Orleans. August 17, the Governor
of Louisiana, acting under a 1960 law, took over control of public
schools in New Orleans. August 27, 1960, a three-judge district court
struck down these actions, declared unconstitutional seven Louisiana
segregation laws, ordered the Orleans Parish School Board to comply with
the order to desegregate, and restrained the Governor and any other state
official from interfering with the operation of public schools in New
Orleans. August 29 the Board conferred with the district judge to whom
the case had been assigned and informed him that the Board, no longer
pinned down by restrictive statutes, was at last able to comply fully
with his order. The Board asked for a short stay. The district judge
postponed the commencement of the Plan to November 14, 1960. In this
order he observed that:
". . . the Court [was] impressed with the sincerity
and good faith of the board, each member of which
personally appeared, with the exception of member,
Emile A. Wagner, Jr., who was absent from the city
at the time. ..."
In public session the Board adopted the grade-a-year Plan and announced
its intention to comply with the court's orders.
The Louisiana legislature did not remain idle. The Governor of the
State called five consecutive extra sessions of the legislature (un-
precedented in Louisiana) for the purpose of preventing the Board from
proceeding with the desegregation program. Among other actions, the
legislature seized the funds of the Orleans Parish School Board, forbade
banks to lend money to the Board, removed as fiscal agent for the state
the Bank which had honored payroll checks issued by the School Board,
ordered a school holiday on November 14, addressed out of office four of
the five members of the Board, later repealed the Act creating the Board,
then on two occasions created a new School Board for Orleans Parish,
still later addressed out of office the Superintendent of Schools in
Orleans Parish, and dismissed the Board's attorney. The federal courts
declared these and a large bundle of related acts unconstitutional.
One hundred and thirty-four Negro children applied for admission to
"white" public schools in New Orleans. November 14, 1960, four Negro
girls were admitted to two white schools. Small as this may seem in
terms of effective desegregation, this was the first time since the
founding of the public school system in New Orleans in 1877 that Negro
children have attended classes with white children. The effect of this
profound change in social customs produced demonstrations, picketing,
stone-throwing and turmoil that continued for months; all white parents
withdrew their children from one of the schools and all but a handful of
parents withdrew their children from the other school. These are facts
of life difficult for the ordinary layman to ignore, notwithstanding the
instructions in Cooper v. Aaron, 358 U.S. 1, that community hostility to
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desegregation cannot be considered as a factor in determining what con-
stitutes "deliberate speed." Nevertheless, the Board stood steadfast.
The school year ended much more quietly than it began.
In September 1961 eight Negro children, chosen from 66 applicants,
were admitted to four schools formerly considered "white" schools, making
a total of twelve Negro children in the first and second grades in six
white schools. There were comparatively no disturbances at the desegre-
gated schools during the 1961-62 school year.
On February 14, 1962, 101 additional Negro pupils moved to intervene
and for a preliminary injunction. They alleged that the pupil assignment
procedures denied Negro pupils in the first grade the right to attend
non-segregated schools "at their option," as provided in the 1960 Plan.
The complaint also alleged that pupil placement procedures operated to
limit desegregation to a few pupils, while maintaining the established
segregation pattern, and that the Negro schools were overcrowded. (There
are 37,845 white students in 64 schools and 55,820 Negro students in 53
schools in Orleans Parish.) After a full hearing, March 5, the district
court filed an opinion, April 3, holding that the Board had not complied
with the May 16, 1960, order; that the Board continued to maintain a dual
system and used pupil placement procedures discriminatorily. The court
ruled:
"An analysis of the test program demonstrates that
the Board, instead of allowing children entering the
first grade to make an election as to the schools
they would attend, assigned all children to the
racially segregated schools in their residential
areas. Then, after being so assigned, each child
wishing to exercise his right to elect pursuant to
the court's plan of desegregation was subjected to
the testing program. No children other than first
grade were required to take the test. . . . This
failure to test all pupils is the consitutional vice
in the Board's testing program. However valid a
pupil placement act may be on its face, it may not
be selectively applied. Moreover, where a school
system is segregated, there is no constitutional
basis whatever for using a pupil placement law. A
pupil placement law may only be validly applied in
an integrated school system, and then only where no
consideration is based on race."
In line with this ruling, April 9 the Court entered a temporary injunction
forbidding the Board to apply the Louisiana Pupil Placement Act to any
pupil as long as the Board operates a dual school system based on racial
segregation.
In addition, the district court found: "The evidence shows that
5,540 negro elementary school children are on platoon, but no white. The
evidence shows further that the average class size in the Negro elementary
schools is 38.3 pupils compared to 28.7 in the white, that the pupil-
teacher ratio in the elementary school is 36.0 to 1 for Negro, 26.1 to 1
for white, and that Negro classes are conducted in classrooms converted
from stages, custodians' quarters, libraries and teachers' lounge rooms,
while similar classroom conditions do not exist in the white schools."
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Because of thi_s_ finding, the court in its April 9 order accelerated the
stepladder program by three grades. Under the May 16 decree, commencing
in September 1962, all children entering grades one through six were
given the option to attend the publ ic school nearest their homes,
whether the school was formerly all-white or all-negro. The basis for
the cut-off at the sixth grade was evidence showing platooning in Negro
schools through the first six grades. As everyone well understood, the
order amounted to effectively desegregating the first s^x grades since
there had been so little desegregation in the first and second grades
during the two years the 1960 Plan was in effect.
April 17, 1962, the School Board moved for a new trial on the
grounds that the district court erred (1) in ordering the first six grades
desegregated and (2) in holding that the Louisiana Pupil Placement Law
may be applied only where dual school systems based on race have been
eliminated.
The district judge to whom the New Orleans School Case fell by
chance in 1952 was Judge J. Skelly Wright, an able, courageous, and
experienced judge. In the middle of April, 1962, Judge Wright was sworn
in as a member of the Court of Appeals for the District of Columbia.
Shortly thereafter Judge Frank B. Ellis succeeded Judge Wright.
May 1, the district court stayed the April 9 order and granted a
new trial under Rule 59, Fed. R. Civ. P., but decided that no new tesi-
mony need be heard. May 29, 1962, Judge Ellis readopted the year by
year plan, commencing with the first grade in September 1962 and modi-
fying the expanded order of April 9 in several important respects. The
order of May 29 reads:
"It is therefore the order of this Court that the
order of April 9, 1962, be and the same is hereby
modified as follows:
1) The order to desearegate the first six grades
by September 1, 1962, is WITHDRAWN.
2) Beginning with the opening of school in 1962,
every child in the City of New Orleans entering
the first grade may attend the formerly all-
white or formerly all -negro school nearest his
home, at his option.
3) Each year, beginning with the opening of school
in 1963, the children in one additional higher
grade beginning with the second grade may attend
the formerly all-white or formerly all -negro
school nearest his home, at his option.
4) Children may be transferred from one school to
another provided such transfers are not based
on consideration of race.
5) Beginning in September of 1963 the dual system
of separate geographical districts in the 1st
and 2nd grades shall be abolished, and each
year thereafter as each succeeding higher grade
is integrated the dual system shall be abolished
contemporaneously therewith.
6) The Louisiana Pupil Placement Law may be
applied to any child only where dual school
systems based on race have been eliminated and
assignments are made without regard to race."
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The School Board appeals from this order on the ground that the
district court erred in ruling that the "Pupil Placement Law may be
applied to any child only where dual school systems based on race have
been eliminated." The Board does not .take the position that it may
permanently maintain a dual school system and apply the Act; the Board
contends that during a period of transition to a racially non-discrimina-
tory system, it may use the Act. The plaintiffs appeal on the ground
that the district court erred in requiring desegregation only at the
first grade level in September 1962 and in providing for desegregation
of the other grades on a step-by-step plan.
II.
The area of agreement between the orders of April 9 and May 29 and
their supporting opinions is larger and more significant than the area
of disagreement. In the supporting opinions the two district judges
agreed on the basic aspects of the problem:
(1) the Orleans Parish School Board had never submitted a plan it-
self and had not complied with the 1960 Plan for desegregating
public schools in New Orleans;
(2) the technique for maintaining segregation was the unconstitu-
tional, discriminatory application of the Louisiana School
Placement Act to Negroes only;
(3) the effectiveness of the Act as a technique for maintaining
segregation depended on the continued use of a dual or biracial
system of school districts.
There is considerable agreement on the solution of the problem. Both
district judges accept the principle set forth in the original 1960 order;
effective desegregation requires that when the first grade is desegregated
children entering that grade shall have an option to attend the school
nearest their homes, whether in any case the school was formerly an
all-white or all-negro school. Both agree that this must be accomplished
without prior assignment of children to segregated schools. The order of
April 9 accomplishes this by providing:
"(C) As long as the defendant, Orleans Parish
School Board, operates a dual school system based
on racial segregation, the Louisiana Pupil Place-
ment Act shall not be applied to any pupil."
Somewhat more drastically, the order of May 29 similarly provides:
"5) Beginning in September of 1963 the dual system
of separate geographical districts in the 1st and
2nd grades shall be abolished, and each year there-
after as each succeeding higher grade is integrated
the dual system shall be abolished contemporaneously
therewith.
6) The Louisiana Pupil Placement Law may be applied
to any child only where dual school systems based
on race have been eliminated and assignments are
made without regard to race."
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The April 9 order does not in terms abolish the dual system, but it for-
bids the Board to use the Pupil Placement Act as long as the Board
operates the dual system. The May 29 order allows a year for planning
but picks up this year by requiring the abolition of the dual system for
the first and second grades in September 1963. This order affirmatively
allows the Board to use the Pupil Placement Act only where the dual
system is eliminated. Both orders are ambiguous in that it is not clear
whether the Act may be applied in any grade, as long as there are
segregated grades controlled by the dual district system. The intention
of the Court may have been to prohibit the application of the Act to
segregated grades.
The essential difference between the two orders is that the order
of April 9 establishes the option for the first six grades while the order
of May 29 establishes the option for the first grade, commencing with the
opening of school in September 1962. Important as this difference is
to New Orleans, we regard as more important the constitionality of the
Board's application of the Pupil Placement Act within the framework of
the dual system of racial zones.
III.
A. Recently, in Augustus v. Board of Public Instruction of Escambia
County, June, 1962, a case not yet reported, Judge Rives commented, "Un-
fortunately ... the appellee Board, like so many others, administered
the pupil assignment law in a manner to maintain complete segregation in
fact." Here, too, we are compelled to say that the Orleans Parish School
Board maintained virtually complete segregation in fact.
The 1960 Plan gave each child an unrestricted option to attend the
school nearest his home, whether it was formerly an all-white or an
all-negro school. But the Board did not allow the children to exercise
this option on entering the first grade. Instead, the Board assigned
all children to racially segregated schools in their residential area
as determined according to the Board's maps of separate Negro and white
school districts for New Orleans. The Board then used the placement
tests only for applications for transfer. The 130 Negro children who
failed their first grade tests in 1960 stayed where they were assigned;
no white children were given any tests as a prerequisite to entering the
first grade in white schools.
The evidence fully supports the findings of the district court.
Judge Wright found:
"To assign children to a segregated school system
and then require them to pass muster under a pupil
placement law is discrimination in its rawest
form."
Even more strongly, Judge Ellis found:
"In New Orleans the statute was used solely for
transfer, rather than assignment and transfer as
required by the statute. The statute was applied
solely to negroes and in the context of a bi-racial
system. It goes without saying that although the
'School Placement Law furnishes the legal machinery
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for an orderly administration of the public schools
in a constitutional manner,' . . .'[the] obligation
to dis-establish imposed segregation is not met by
applying placement or assignment standards, educa-
tional theories or other criteria so as to produce
the result of leaving the previous racial situation
existing as it was before.' If pupil assignment
cannot be made on the basis of race, it irresistably
follows that the prerequisite to assignment may not
be applied along racial lines. It does no good to
say that the Pupil Placement Law is applied solely to
transferees without regard to race when the procedure
is so devised that the transferees are always
negroes. . . . This Court cannot countenance the
present application of the Louisiana Pupil Placement
Law in the present status of the Orleans Parish
Schools. To believe that desegregation can be
effected here with all deliberate speed through
application of the Pupil Placement Law is indeed no
more than 'a speculative possibility wrapped in disuas-
ive qualifications. ' However, if dual school systems
are eliminated and the Pupil Placement Law is adminis-
tered even-handedly without overtones of race, the
constitutional inhibition is alleviated. Once a
child is given the opportunity to choose a school
on a non-racial basis, he may be segregated according
to academic ability. The mechanics of the plan to
be constitutionally applied by the Board would also
necessitate a dissolution of the dual schools
system."
The School Board insists that the plan wa£ applied to both white and
Negro children. This is no doubt true— with respect to all Negro children
applying for transfer to Negro schools and all white children applying
to white schools. This is a proper constitutional use of the Act. But
when, purportedly as a vehicle for desegregating, the Board applied the
Act to Negro first graders only after they had already been assigned to
segregated schools in a dual school system, the Board used the Act
discriminatorily.
In this aspect of pupil assignment the facts present a clear case
where there is not only deprivation of the rights of the individuals
directly concerned but deprivation of the rights of Negro school children
as a class. As a class, and irrespective of any individual's right to
be admitted on a non-racial basis to a particular school, Negro children
in the public schools have a constitutional right to have the public
school system administered free from an administrative policy of segre-
gation. Geographical districts based on race are a parish-wide system
of unconstitutional classification. Of course, it is undoubtedly true
that Brown v. Board of Education dealt with only an individual child's
right to be admitted to a particular school on a non-racial basis. And
it is also true, as the second Brown opinion pointed out, that courts
must bear in mind the "personal interest" of the plaintiffs. In this
sense, the Brown cases held that the law requires non-discrimination as
to the individual, not integration. But when a statute has a state-wide
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discriminatory effect or when a School Board maintains a parish-wide
discriminatory policy or system, the discrimination is against Negroes
as a class. Here, for example, it is the Orleans Parish dual system of
segregated school districts, affecting all school children in the Parish
by race, that, first, was a discriminatory classification and, second,
established the predicate making it possible for the Pupil Placement
Act to fulfill its behind- the- face function of preserving segregation.
We affirm the holding of the district court that the Orleans Parish
School Board applied the Louisiana Pupil Placement Act unconstitutionally.
B. A number of cases have severely restricted the use of Pupil
Placement Laws. In a recent case the Sixth Circuit ruled: "Since
[Brown v. Board of Education] there cannot be 'Negro' schools and 'white'
schools. There can now be only schools, requirements for admission to
which must be on an equal basis without regard to race. . . . The ad-
mission of thirteen Negro pupils, after a scholastic test, which the
white children did not have to take, out of thirty-eight who made appli-
cation for transfer, is not desegregation, nor is it the institution of
a plan for non-racial organization of the Memphis school system." North-
cross v. Board of Education of City of Memphis, 6 Cir., 1962, 302 F.2d
819.
This Court, like the district court, condemns the Pupil Placement
Act when, with a fanfare of trumpets, it is hailed as the instrument for
carrying out a desegregation plan while all the time the entire public
knows that in fact it is being used to maintain segregation by allowing
a little token desegregation. When the Act is appropriately applied, to
individuals as individuals, regardless of race, it has no necessary rela-
tion to desegregation at all. The Act recognizes the power of discretion
in a School Board that inheres without benefit of the statute. The Act
establishes, for the transfer of students, criteria which in many in-
stances are so obvious as to be unnecessary (an intelligence test, for
example) and in other instances are vague, conflicting, and administra-
tively infeasible. Putting to one side the potentialities of the Pupil
Placement Act as an element in the technique of maintaining segregation,
the statute is an unusual experiment in education. By means of the Act
student bodies can be so controlled that substantially all of the students
in any one or more of the schools will be on the same intellectual and
cultural level and have the same social background. The wisdom of this
policy is not for the courts. It is especially not the business of
federal courts how a state operates its schools or experiments with
educational theories: as long as the state and its agents do not violate
the Constitution. The Orleans Parish School Board may interpret the
Placement Act as it pleases and apply it as and when it pleases--as
long as placements under the Act are made without racial discrimination.
This is to say that the New Orleans School Board may not use the
Act in the future as it has used it in the past. The Act is not an
adequate transitionary substitute in keeping with the gradualism implicit
in the "deliberate speed" concept. It is not a plan for desegregation
at all .
There are legitimate uses of the Act. Here is one important ex-
ample. Under the 1960 Plan the Board, correctly we think, interpreted
the Plan as applicable only to the first grade; the Negro children
attending white schools were to be the apex of a widening triangle.
There is a sound educator's reason for such a plan: It makes for easier
educational adjustments. Had the dual system been done away with in the
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in the first grade the Plan, although initiated six years after Brown and
although a twelve year plan, would have been in compliance with the
"deliberate speed" concept established by the Supreme Court. This con-
clusion seems implicit in the order of the district court in May 1960.
But when the dual system was continued and the Pupil Placement Act
applied only after first graders were assigned to segregated schools,
it became apparent that desegregation in New Orleans would be a pencil
point, not a widening triangle. The transfer of twelve Negro children
to white schools over a two-year period is not the institution of a
gradual plan for a non-racial school system. It is not even a good
start. The children entering the second and third grades in 1962-63
have not had the option supposedly given them in the 1960 Plan. At this
late date in the year, however, a large number of lateral transfers from
the second and third grades commencing in September 1962 would create
serious administrative difficulties. Therefore, in order to bring these
grades within the scope of the 1960 Plan, as nearly as is now feasible,
we modify the May 29 order so that children attending the second and
third grades in 1962-63 will be given the limited right to transfer to
the school nearest their home under a good faith, non-discriminatory
application of the Pupil Placement Act to such transfers.
There are other possibilities for a good faith use of the Act during
the transition to full desegregation. The Orleans Parish School Board
operates one of the finest schools in the country for superior students,
Benjamin Franklin High School. To be admitted, students must meet ex-
ceptionally high intellectual standards. School adjustments between
Negro and white students meeting on the same intellectual plane should
not be difficult. And, eight years after Brown v. Board of Education
is not too soon for a qualified Negro to be admitted to Benjamin Franklin
High School. We suggest that the Board consider opening all four high-
school grades at this school to Negroes who can meet the school's
exacting requirements. Here, too, although the dual or biracial system
now controls the high schools, would be a proper place for the good
faith, non-discriminatory use of the Pupil Placement Act.
Again, the time will come when desegregation may necessitate
transfers from overcrowded to undercrowded schools. In such cases, the
Pupil Placement Act may be a useful tool, if it is accompanied by a
good faith avoidance of resegregation.
There are doubtless other situations in which effective grade by
grade desegregation may be accomplished along with the good faith use of
the law providing for the assignment of a pupil to a particular school
At this stage in making the difficult adjustment to a non-racial school
system it is too early to throw the Pupil Placement Act overboard. In
New Orleans and elsewhere the problems are so varied, the administrative
difficulties so numerous, the possible solutions so unpredictable that
courts are not in a position to bar absolutely the use of the Act by a
school board sincerely attempting an orderly transition to full desegre-
gation by a fixed date. To a great extent the gradual abolition of dual
districting will render the Act obsolete as an instrument (genuine or
false) for desegregation. At this point, it is better to keep deseare-
gation procedures flexible.
We do not overlook the fact that the members of the Orleans Parish
School Board have earned a reputation for integrity and strength of
character. The district judge who held against them, yet praised their
good faith, said in his last opinion in this case: "The School Board
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here occupies an unenviable position. Its members, elected to serve
without pay, have sought conscientiously, albeit reluctantly, to comply
with the law on order of this court. Their reward for this service has
been economic reprisal and personal recrimination from many of their
constituents who have allowed hate to overcome their better judgment."
When a case involves the administration of a state's schools, as
federal judges we try to sit on our hands. But— we must serve notice
that the Act is not a desegregation plan and that this Court cannot
tolerate discrimination in the name of the Act. The key to the problem
is the elimination of dual or biracial school zones. The limiting
principle is clear: the Act may not be used discriminatorily. The
touchstone is good faith.
IV.
When we come to the question of accelerating or decelerating the
year-by-year plan adopted in 1960, we are struck by the lack of a sound
basis for acceleration or deceleration. There was substantially the
same evidence of overcrowding in 1960 as in 1962. The most logical
decree to have rendered in April or May 1962 would have been an order
requiring the Board to bring ths school system into compliance with the
original plan of the district court which was approved by this Court.
Such an order would give the second-graders and third-graders the same
option the first-graders have under the May 29 decree. Unfortunately,
at this moment in this case there is too large a gap between logic and
experience. The experience the Orleans Parish School Board has gone
through to bring about the admission of twelve Negro children to white
classes is some indication of the problems that would be created if,
this late in the year, three grades were ordered completely desegregated.
We are talking now about administrative problems, whatever their source,
not community hostility to desegregation as such or problems of law and
order as such.
The 1960 grade-a-year desegregation Plan for New Orleans is similar
to the plan today in Atlanta, Houston, Dallas, and Nashville. It is as
sound now as it was in 1960. We modify the May 29 order, therefore, so
that, within the bounds of administrative feasibility, the second and
third grades will have an additional measure of desegregation, even if
they are not on the identical basis as the incoming first grade. This
will be accomplished by allowing pupils now enrolled in the second-grade
and third-grade in segregated schools to be transferred in the 1962-63
term. In addition and in order to bring about further compliance with
the 1960 Plan, we have broadened the base for abolition of dual districts.
The May 29 order allows dual districts during the 1962-63 term, but com-
mencing September 1963 does away with the dual system in the first and
second grades. That takes care of the first grade for 1962-63 but not
the second and third grades which were supposedly desegregated in the
1960 Plan. To do justice to children who are in these grades, without
effecting too violent a change administratively, we provide for the
additional abolition of the dual systems in the fourth and fifth grades
for the 1964-65 term. Thereafter, as in the district court's order,
dual districting will be abolished on a grade a year basis.
-382-
This Court approves the district court's orders of May 29 and
April 9, 1960, amending and clarifying the desegregation plan of the
Orleans Parish School Board set forth in the order of May 16, 1960,
except as modified below:
1. Beginning with the opening of school in 1962, every child
in the Parish or Orleans entering the first grade shall have
the option of attending the formerly all-white or formerly
all -Negro school nearest his home.
2. Each year, beginning with the opening of school in 1963,
every child in one additional higher grade, beginning with
the second grade, may attend the formerly all-white or formerly
all-Negro school nearest his home, at his option.
3. Each child enrolled in the second and third grade for the
school year 1962-63 may transfer to the formerly all-white or
formerly all-Negro school nearest his home, at his option.
4. The Board may transfer children from one school to another
provided that the Board does not base such transfers on racial
considerations.
5. Negro children who attended formerly all-white schools in
1960-61 and 1961-62 and Negro children who have registered for
attendance at formerly all-white schools in 1962-63 and sub-
sequent years may not be transferred or assigned to an all-
Negro school against their wishes. If the transfer of white
students from such schools would result in resegregation, the
Negro children shall be afforded an opportunity to attend a
nearby formerly all-white school without being subjected to
tests for transfer under the Pupil Placement Act.
6. In September 1963 the dual system of separate geographical
districts for the first and second grades shall be abolished.
In September 1964 the dual system shall be abolished for the
first five grades. Each year thereafter, as each succeeding
higher grade is desegregated the dual system shall be abolished
contemporaneously therewith. As the dual system is abolished,
the Board shall submit to the Court for approval its maps and
plans for a single system of geographical school districts.
7. The Louisiana Pupil Placement Act may be applied only when
the Board makes placements without regard to race. In such
situations the Board will be expected to base its application
of the Act on high standards of good faith.
The judgment below is AFFIRMED in part and REVERSED in part. The
case is REMANDED to the district court for action consistent with this
opinion.
Court of Appeals Opinion, August 28, 1962
Before RIVES, BROWN and WISDOM, Circuit Judges.
WISDOM, Circuit Judge:
The Orleans Parish School Board has filed an application for a
rehearing in which it has prayed that this Court's judgment of August 6,
-ass-
ise? in this cause be set aside or modified in certain respects. The
basis for the request for modification rests on the Board's adoption of
(1) a Long Range Plan and (2) a Transitionary Plan for the scholastic
year 1962-63 for the desegregation of .the public schools of New Orleans.
Attorneys for the Board submitted the plans to the district court.
After a conference with the attorneys for both the appellants and appel-
lees, who were in agreement on the Transitionary Plan, the district
court approved the substance of this plan subject to further orders of
this Court. The district court also approved the substance of the Long
Range Plan. The attorneys for the Negro plaintiffs, the appellants,
have neither approved nor disapproved of the Long Range Plan; they
request time within which to study the details of this plan.
I.
The action of the Board in adopting detailed plans for submission
to the district court represents a forward step in the proper direction
of recognizing local responsibility for preparing desegregation plans
and putting such plans into effect. We observe again that desegregation
procedures, within reasonable limits, must be flexible in order to fit
local needs and new situations as they arise and present problems. Here,
as in Augustus v. Board of Public Instruction of Escambia County, 5 Cir.,
1962, F.2d , we say that the primary responsibility for judicial super-
vision lies with the district court. It is the tribunal best qualified
to wrestle with specifics. "We are reluctant to substitute our judgment
for that of the district court . . . Further amendments to the plan may
be suggested by the plaintiffs and will occur to the Board, now acting in
good faith, and to the district court, and operation of the plan will be
supervised by the district court, all to the end that complete desegre-
gation of the public schools may be accomplished 'with all deliberate
speed.'" In all of the school segregation cases, "the district court
will, of course, retain jurisdiction throughout the period of transition.
Brown v. Board of Education, 1955, 349 U.s'. 294, at 301." Nevertheless,
it is our duty to review the action of the district court and, in the
proper case, to modify the orders of that court and of this Court.
II.
The Long Range Plan is not to take effect until September, 1963.
And, the Board's plans for the scholastic year 1963-64 are identical
with the orders of the district court and this Court. The suggested
modification is not to take effect until September 1964. In the mean-
while, the Board has directed the Superintendent of Schools to prepare,
by December 1, 1962, a detailed study of ways and means of abolishing
the presently existing bi-racial school zones in the Parish of Orleans.
Until the Board and its Superintendent have had an opportunity to complete
such a study, and until there has been a hearing before the district
court with full opportunity for the plaintiff's attorneys to oppose this
Long Range Plan, it is premature for this court to consider the proposal.
Accordingly, we take no action on that plan at this time. So that there
will be no misunderstanding and no cause for unnecessary delay, we now
say to the Board that the mandate of the Court previously issued in this
cause does not forbid the preparation and submission to the district
court of the Long Range Plan or other plans and recommendations for
-384-
modifying the presently existing court-approved plan for desegregation
of New Orleans Schools.
III..
The substance of the Transitionary Plan is in accord with the lan-
guage and spirit of the opinion of this Court of August 6. The attorneys
for the appellants approved the proposal, without qualification, and
the district court has approved it, subject to orders of this Court.
The primary purpose of the recommended modification of this Court's
order is to alleviate overcrowding in Negro schools. This is to be
accomplished, in good part, by converting McDonogh 19, Judah P. Benjamin
and William 0. Rogers Schools, into Negro schools. The Board avers that
as a result of this conversion, plus the completion of construction
projects during 1962-63, approximately 5000 Negro students will be taken
off the platoon system. In addition, the size of classes in eighteen
Negro schools will be reduced. Any child, without regard to race, who
attended McDonogh 19, William 0. Rogers, or Judah P. Benjamin Schools in
the scholastic year 1961-62 may attend either the white school or the
Negro school in his residence district. Negro children who registered
at these schools for the year 1962-63 will be within the uni-racial
system for the year 1963-64.
In view of the agreement by the parties and the approval of the
district court of the Board's Transitionary Plan, paragraph five of the
order of this Court of August 6, 1962, is herewith modified to permit
the Orleans Parish School Board to make such changes in the administra-
tion of McDonogh 19, William 0. Rogers, and Judah P. Benjamin Schools
as will be necessary or proper in order to carry out the provisions of
its Transitionary Plan.
The petition of the Orleans Parish School Board is herewith granted
in part and denied in part. It is ordered that the mandate be issued
forthwith in accordance with this opinion and judgment of the Court.
SELECTED BIBLIOGRAPHY
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Murphy, Walter F., and Pritchett, Herman. Courts, Judges, and Politics:
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Richardson, Richard J., and Vines, Kenneth N. "Review, Dissent and the
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Howard, J. Woodford, Jr. Decision Making Procedures in U.S. Courts of
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Shafroth, Will. "Survey of the United States Courts of Appeals "
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Unpublished Materials
Harper, Robert A., Attorney at Law. Private telephone interview.
Gainesville, Florida, July 8, 1976.
Green, Aaron, Attorney at Law. Private telephone interview. Gainesville
Florida, July 12, 1976.
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Bartley, Numan V. The Rise of Massive Resistance: Race and Politics in
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Hamilton, Charles V. The Bench and the Ballot: Southern Federal Judges
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Havard, William C, ed. The Changing Politics of the South. Baton
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Hays, Brooks. A Southern Moderate Speaks. Chapel Hill: University of
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Workman, William D. The Case for the South. New York: Devin-Adair
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Zeigler, Benjamin-Murr, ed. Desegregation and the Supreme Court.
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C. Materials Relating to the Cases
Book
Inger, Morton. Politics and Reality in an American City: The New Orleans
School Crisis of I960. New York: Center for Urban Education, 1969.
Newspapers
Miami Herald. August 19, 1954-November 25, 1959.
New York Times. August 19, 1954-September 7, 1962.
Legal Cases
Bell v. Rippy. 133 F.Supp. 811, 1 RRLR 318 (N.D. Tex. 1955); 146 F.Supp.
485, 2 RRLR 32 (N.D. Tex. 1956).
Borders v. Rippy. 247 F.2d 268, 2 RRLR 805 (5th Cir. 1957); 2 RRLR 984
(5th Cir. 1957); 2 RRLR 985 (N.D. Tex. 1957); 4 RRLR 877 (N.D. Tex.
1959); 184 F.Supp. 402, 5 RRLR 679 (N.D. Tex. 1960); 195 F.Supp. 732,
6 RRLR 746 (N.D. Tex. 1961).
Boson v. Rippy. 275 F.2d 850, 5 RRLR 392 (5th Cir. 1960); 285 F.2d 43,
5 RRLR 1048 (5th Cir. 1960).
Brown v. Board of Education of Topeka. 347 U.S. 483 (1954); 349 U.S.
294 (1955).
Brown v. Rippy. 233 F.2d 796, 1 RRLR 649 (5th Cir. 1956).
Bush v. Orleans Parish School Board. 138 F.Supp. 336, 1 RRLR 305 (E.D.
La. 1956); 138 F.Supp. 337, 1 RRLR 306 (E.D. La. 1956); 5 RRLR 378
(E.D. La. 1960); 5 RRLR 655 (5th Cir. 1960); 191 F.Supp. 871, 6 RRLR
74 (E.D. La. 1961); 194 F.Supp. 182, 6 RRLR 413 (E.D. La. 1961);
204 F.Supp. 568, 7 RRLR 19 (E.D. La. 1962); 205 F.Supp. 893, 7 RRLR
349 (E.D. La. 1962); 308 F.2d 491, 7 RRLR 693 (5th Cir. 1962); 230
F.Supp. 509 (E.D. La. 1963); 9 RRLR 667 (E.D. La. 1964); 9 RRLR 1747
(E.D. La. 1964).
Dallas Independent School District v. Edgar. 255 F.2d 241, 3 RRLR 656
(5th Cir. 1958); 328 S.W.2d 201, 4 RRLR 878 (Ct.Civ. App. Tex.
1959).
Denny v. Bush. 367 U.S. 908 (1961).
-391-
Gibson v. Board of Public Instruction of Dade County. 2 RRLR 9 (S.D.
Fla. 1956); 246 F.2d 913, 2 RRLR 784 (5th Cir. 1957); 170 F.Supp.
454, 4 RRLR 21 (S.D. Fla. 1958); 272 F.2d 763, 4 RRLR 859 (5th
Cir. 1959).
Gremillion v. U.S. 368 U.S. 11 (1961).
Kelly v. Board of Education of Nashville. 270 F.2d 209 (6th Cir. 1959).
Orleans Parish School Board v. Bush. 351 U.S. 948 (1956); 242 F.2d 156
(5th Cir. 1957); 354 U.S. 921 (1957); 252 F.2d 253, 3 RRLR 171 (5th
Cir. 1958); 163 F.Supp. 701, 3 RRLR 649 (E.D. La. 1958); 268 F.2d
78, 4 RRLR 581 (5th Cir. 1959); 187 F.Supp. 42, 5 RRLR 655 (E.D. La.
1960); 188 F.Supp. 916, 5 RRLR 1000 (E.D. La. 1960); 364 U.S. 803
(1960); 365 U.S. 569 (1960); 190 F.Supp. 861 (E.D. La. I960); 367
U.S. 908 (1961 ); 368 U.S. 11 (1961).
Rippy v. Borders. 250 F.2d 690, 3 RRLR 17 (5th Cir. 1957).
Rippy v. Brown. 352 U.S. 878 (1956).
School Board of City of Charlottesville v. Allen. 240 F.2d 59 (4th Cir.
1956).
Shuttlesworth v. Birmingham Board of Education, Alabama. 358 U.S. 101
(1958).
Singlemann v. Davis. 188 F.Supp. 916, 5 RRLR 1000 (E.D. La. 1960).
State v. Orleans Parish School Board. 5 RRLR 72 (Civ.D.Ct. La. 1959);
118 So. 2d 127, 5 RRLR 74 (La. 1960); 118 So. 2d 471, 5 RRLR 375
(C.A. La. 1960); 5 RRLR 659 (Civ.D.Ct. La. 1960).
U.S. v. Jefferson County Board of Education. 372 F.2d 836 (5th Cir.
1966); on rehearing en banc, 380 F.2d 385 (5th Cir. 1967).
Unpublished Materials
Lacalomito, Ernest, Deputy Clerk of the U.S. District Court for the
Southern District of Florida. Private telephone interview. Miami,
Florida, June 15, 1978.
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Books
Hutcheson, Joseph C, Jr. Judgment Intuitive. Chicago: The Foundation
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-392-
Hutcheson, Joseph C, Jr. Lawand I Liberty Reconciled: The Principle of
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Journalism Laboratory Press of Washington & Lee University, 1953.
Law as Liberator: The Principle of Democracy in America, the
Spirit of Its Laws. Chicago: The Foundation Press, Inc., 1937.
We March But We Remember. Houston: Alpha Law Brief Co.
1941.
Who Was Who in America. Vols. IV & V. Chicago: Marquis' Who's Who, Inc.
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Who's Who in America. 38th ed. Vol. II. Chicago: Marquis' Who's Who,
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Who's Who in the South and Southwest. 13th ed. Chicago: Marquis' Who's
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Brown, John R. "Free Will in the Frontiers of Federalism." Michigan
Law Review, XLVIII (1960), p. 999. —
Hail to the Chief: Hutcheson, the Judge," Texas Law Review,
XXXVIII (1959), p. 140.
• "Judge Elbert Tuttle: Jurist." Journal of Public Law, XVI
0967), p. 279.
"Supreme Court and States Rights." Kentucky Law Journal ,
XLVIII (1959), p. 92.
"The Trumpet Sounds: Gideon— A First Call to the Law School'
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Cameron, Benjamin F. "Fundamentals of Practice in Federal Courts from
the Standpoint of a Practical Trial Attorney." Mississippi Law
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Dean, Arthur H. "A Tribute to Chief Judge Elbert P. Tuttle," Cornell
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Hutcheson, Joseph C, Jr. "The Advocate in the Trial Court." University
of Illinois Law Forum (1956), p. 172.
"The Common Law of the Constitution." Texas Law Review, XV
TT937), p. 317
-393-
Hutcheson, Joseph C, Jr. "The Faith of Our Fathers." Georgia Bar
Journal, XIV (1951), p. 149.
The Glorious Uncertainty of Our Lady of the Law." Judicature,
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TT949), p. 20
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TT9"34), p. 1069.
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. "We Be of One Blood, You and I, of One Law, One Faith, One
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Rives, Richard T. "A Court of Appeals Judge on the Federal Rules "
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Law Review, L III (1967), p. 6.
■ "Random Remarks on the Role of Social Sciences in the Judicial
Decision-Making Process in School Desegregation Cases." Law and
Contemporary Society, XXXIX (1975), p. 133.
"A Southern Judge Looks at Civil Rights." Federal Rules
Decisions, XLII (1967), p. 437.
Unpublished Materials
Brown, John R., Chief Circuit Judge. Personal interview. Houston,
Texas, August 24, 1977.
Coleman, James P., Circuit Judge. Personal interview. Ackerman,
Mississippi, August 17, 1977.
Curzan, Mary Hannah. "A Case Study in the Selection of Federal Judges:
The Fifth Circuit, 1953-1963." Ph.D. Dissertation,
Yale University, 1968.
Hutcheson, Joseph C, Jr. "The March of the Federal Constitution."
Address on Constitution Day, Houston, Texas, September 17, 1933.
• "New Instruments of Public Power or the Administro-Judicial
Process and the Struggle for the Supremacy of Law." Address at
annual meeting of the State Bar of California, Coronado, California,
September 26, 1946.
■ "Restraint, the Price of Freedom." Address at Founders Day
Dinner of the Lawyers Club of the University of Michigan, Ann
Arbor, Michigan, April 28, 1950.
"Separation of Powers and Administrative Law." Address at
National Shorthand Reporters Association meeting, Houston, Texas,
August, 1936.
-395-
Jones, Warren L., Senior Circuit Judge. Personal interview. Jacksonville,
Florida, July 18, 1977.
Read, Frank T., Dean, University of Tulsa College of Law. Personal
interview. Tulsa, Oklahoma, September 7, 1977.
Rives, Richard Taylor, Senior Circuit Judge. Personal interview.
Montgomery, Alabama, July 27, 1977.
Smith, Allen E., Dean, University of Missouri School of Law. Personal
interview. Columbia, Missouri, August 15, 1977.
Tuttle, Elbert Parr, Senior Circuit Judge. Personal interview. Atlanta,
Georgia, August 26, 1977.
Wisdom, John Minor, Senior Circuit Judge. Personal interview. New
Orleans, Louisiana, July 29, 1977.
BIOGRAPHICAL SKETCH
Oohn Michael Spivack was born in New York City on June 22, 1942.
He was educated at Columbia University (B.A., 1964), New York University
(L.L.M., 1968), and the University of Florida (J.D., 1967, M.A.T., 1973,
Ph.D., 1978). He practiced labor law in Atlanta, Georgia, representing
management and in Harrisburg, Pennsylvania, representing labor.
-396-
I certify that I have read this study and that in my opinion it
conforms to acceptable standards of scholarly presentation and is fully
adequate, in scope and quality, as a dissertation for the degree of
Doctor of Philosophy.
M CLfL
David M. Chalmers, Chairman
Professor of History
I certify that I have read this study and that in my opinion it
conforms to acceptable standards of scholarly presentation and is fully
adequate, in scope and quality, as a dissertation for the degree of
Doctor of Philosophy.
Arthur L. Funk
Professor of History
I certify that I have read this study and that in my opinion it
conforms to acceptable standards of scholarly presentation and is fully
adequate, in scope and quality, as a dissertation for the degree of
Doctor of Philosophy.
Lyle N. McAlister
Professor of History
I certify that I have read this study and that in my opinion it
conforms to acceptable standards of scholarly presentation and is fully
adequate, in scope and quality, as a dissertation for the degree of
Doctor of Philosophy.
H»^_Al
David Col burn
Associate Professor of History
I certify that I have read this study and that in my opinion it
conforms to acceptable standards of scholarly presentation and is fully
adequate, in scope and quality, as a dissertation for the degree of
Doctor of Philosophy.
Richard Scher
Associate Professor of Political Science
This dissertation was submitted to the Graduate Faculty of the Department
of History in the College of Arts and Sciences and to the Graduate
Council, and was accepted as partial fulfillment of the requirements for
the degree of Doctor of Philosophy.
August, 1978
Dean, Graduate School
ihiSm0F FLOf"DA
3 1262 08666 229 2
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