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SOUTHERN SCHOOL NEWS—JANUARY 1961—PAGE 9
Louisiana
(Continued From Page 8)
by Gov. Davis on Dec. 3, segregation
ists took the matter into the state dis
trict court at Baton Rouge, where
Judge Fred S. LeBlanc restrained the
Legislature from use of the act.
This had the effect of moving the
case quickly into the hands of the
State Supreme Court, which ruled on
Dec. 15 on both Act 2 creating the gov
ernor-appointed board and Act 25 of
the first extra session of the Legisla
ture. Act 25 abolished the elected
school board, but this act was declared
unconstitutional earlier by the three-
judge federal court.
Louisiana Justices
Louisiana justices said:
“. . . If Act 25 is constitutional on
its face, as it is, and is a measure
adopted, as stated by the United
States district court, ‘in an area pe
culiarly reserved for exclusive state
action,’ how does the mere statement
(of the federal judges) that it was
‘part and parcel of the original seg
regation package’ justify in law a
holding of unconstitutionality?
“Such a holding is based on an as
sumption that a school board not yet
provided for or even in existence will
act or perform its duties in an un
constitutional way. This is not a basis
in law for declaring an act uncon
stitutional.
“With reference to Act. No. 2
creating a school board for Orleans
parish with limited power, financial
in nature, it is clear that it was
adopted by the Legislature for the
purpose of bringing financial order
where there was financial chaos. Its
primary purpose was to create a
school board with power and author
ity to discharge from public funds
large financial obligations incurred in
the operation of the . . . schools, no
such power and authority being in
existence at the time the act was
adopted.”
In all of its actions to create a new
board, the Legislature has assumed
that it will itself have jurisdiction in
all Orleans school board policy matters
and that a new board would handle
only finances.
Other Developments
These were other legal developments
surrounding the New Orleans school
desegregation:
• The U. S. attorney at New Orleans
was participating in litigation as a
‘friend of the court,” having entered
the original 1952 case of Bush v. Or
leans Parish School Board at the re
quest of the three-judge court. The
jurists asked through the attorney gen-
er al of the United States that the local
bb S. attorney serve as arnicais curiae
to accord the court the benefit of its
views and recommendations, with the
bght to submit to the court pleadings,
evidence, arguments and briefs, and to
initiate such further proceedings as
may be appropriate.” The government
had not previously been a party to the
Bush case or the important Williams
v. Gov. Jimmie H. Davis suit, a citizen
action intended to keep control of the
schools in the hands of the locally-
elected school board.
• Solicitor General J. Lee Rankin
asked on Dec. 8 that the U. S. Supreme
Court speed up its action on New
Orleans school desegregation litigation.
This came four days prior to the denial
of a stay in desegregation asked by the
state of Louisiana.
• Civil District Judge Alexander E.
Rainold ordered Orleans School Super
intendent James F. Redmond to furnish
to school board member Emile A. Wag
ner Jr. the names and addresses of all
students enrolled in the city’s two de
segregated schools. An appeal was
taken. Wagner, only one of five board
members who has refused to comply
with federal desegregation orders, has
been absent from most recent board
meetings but asked the names for the
declared purpose of checking the
pupil-placement program and assisting
children in finding other schools to at
tend.
To Hear Appeals
While New Orleans schools remained
the main legal battleground over de
segregation, the U.S. Fifth Circuit
Court of Appeals on Jan. 18 will hear
appeals on behalf of the East Baton
Rouge and St. Helena Parish public
schools and six state-supported trade
schools.
District Judge Wright in April di
rected the two parishes and the trade
schools in Crowley, Natchitoches,
Greensburg, Lake Charles, Opelousas
and Shreveport to desegregate with
“all deliberate speed.”
No date was set in the May order.
Davis v. East Baton Rouge Parish
School Board was filed Feb. 26, 1956.
Hall v. the St. Helena Parish School
Board was filed in September of 1952.
‘Alas! Poor Yorick . .
Atlanta Journal
The Caddo trade school case was
filed in July of 1958 and all other trade
school cases on Feb. 24, 1956.
The Louisiana Legislature, blocked
by federal courts in every attempt to
return to a totally segregated school
system in New Orleans, received from
Gov. Jimmie H. Davis Dec. 17 a pro
posed one-cent sales tax increase which
he said would finance the start of a
grant-in-aid private school program.
Davis and his leaders, however, ran
into a storm of protests that the gov
ernor was using a segregation label on
a sales tax measure designed to in
crease the state’s already record $854
million budget by another $28 million.
The House failed on Dec. 21 to give
the tax measure the necessary 68 votes
needed for passage, but the administra
tion announced it would try again after
the Legislature reconvenes Jan. 4.
Originally the tax was to extend for
3% years until the end of the Davis ad
ministration, providing an extra $45
million a year by adding one cent to the
present two cents sales tax on every
dollar purchase-
Though billed in advance by the ad
ministration as a means of providing
funds for grant-in-aid private schools
as a substitute for desegregated public
schools, the tax measure was intro
duced Dec. 17 with an accompanying
bill directing that the new money go
into the general fund, where it could
be spent for any purpose.
Opponents pointed out that Davis
(1) was pledged to no tax increases,
(2) that the record high budget showed
that economy had not been practiced as
Davis said it would, and (3) that if the
money was for grant-in-aid schools it
should be dedicated for that purpose
only rather than placed in the general
fund from which appropriations could
be made to increase the budgets of
other agencies.
The strong argument was also made
that only two schools in the state are
desegregated and that if grant-in-aid
funds were wanted for the more than
1,000 white students boycotting the two
New Orleans schools only $400,000,
rather than $45 million, would be need
ed immediately.
The Davis administration, seeing the
handwriting on the wall, amended its
tax proposal to make it an eight months
instead of a three-and-a-half year tax.
This would produce $28 million between
Jan. 1 and Aug. 31. A separate bill was
drafted to say the revenue would go to
grant-in-aid payments.
But the House, weary as the third
special session droned on, gave the tax
bill only 65 votes, three short of the
necessary two-thirds majority required
on all tax increases.
Gov. Davis made a personal appear
ance before a joint session the follow
ing day, pleaded that “the legislation
in question represents a partial solution
to some of these problems,” urged a
continuation of the fight for state
sovereignty, and sent the legislators
home for the Christmas holiday so that
they could talk with constituents.
But before they left Baton Rouge the
angered legislators unanimously passed
resolutions condemning the three-judge
federal court, which the day before had
cited Lt. Gov. C. C. Aycock, House
Speaker J. Thomas Jewell, and State
Education Superintendent Shelby M.
Jackson for contempt because of their
refusal to pay employees at desegre
gated schools.
The Legislature, ejecting a deputy
U.S. marshal who came into the House
to serve the contempt citations, called
the action of the three-judge court
headed by Judge Richard T. Rives of
Montgomery “unsound, tyrannical and
further evidence of the determination
of the said United States district court
for the Eastern district of Louisiana to
destroy the sovereignty of the state of
Louisiana and to deny this Legislature
the exercise of its constitutional pow
ers.”
Saying that Aycock, Jewell and Jack-
son were doing no more than they had
been instructed to do by the Legisla
ture, the legislators commended them
for their action and said the federal
court contempt citations amounted to
an effort to intimidate “officials who
have performed their sworn duties.”
Prepared to Pay
The Legislature said that it had been
prepared to pay New Orleans teachers
their Dec. 23 paychecks but that the
contempt citations and new broad re
straining orders of the federal court is
sued Dec. 21 prevented them from do-
If All Americans Are Not
Giving It Serious Thought,
They Should Be
Nashville Banner
ing so.
Court restrainers on new issues aris
ing from the school desegregation in
New Orleans again had broadly re
strained the Legislature and practically
all other state officials from doing any
thing to interfere with the Orleans
Parish public schools.
The pay issue was before the Legis
lature because lawmakers had bottled
up Orleans Parish school finances and
the local school board has been unable
to meet its payrolls. The Legislature
had paid the salaries of most teachers,
principal and school secretaries on Nov.
23 under the theory that the Legislature
was controlling the schools because of
its voted ouster of the school board.
The Legislature had been expected to
meet the similar $2 million Dec. 23 pay
roll even though the removal of the
school board has repeatedly been set
aside by federal court actions.
Authorized Governor
The Legislature also:
© Passed an act Dec. 3 authorizing
Gov. Davis to name a new school
board for Orleans Parish to handle
finances only while the Legislature con
trolled the overall policies of New Or
leans public schools. The three-judge
court made up of Judges Rives, J.
Skelly Wright, and Herbert W. Christ-
enberry, issued a temporary injunction
against the new board appointment.
• Passed an act Dec. 15 under which
the Legislature itself appointed five men
to take over financial control of the
New Orleans public schools. Gov. Davis
vetoed this bill on Dec. 22, noting that
the similar Dec. 3 act had been re
jected by federal jurists.
• Received and gave committee ap
proval to a bill which would legalize
keno, bingo, and other gambling con
ducted by non-profit organizations for
the support of private schools as sub
stitute for desegregated public schools.
A group of New Orleans legislators
headed by Rep. Edward F. LeBreton
Jr., Ward 11, introduced the measure,
which will come up for action in Jan
uary.
• Repealed the authority of the Or
leans school board to employ its own
attorney. A federal court action re
strained the Legislature from accomp
lishing its purpose.
• Rejected in the Senate by a 10-24
vote a plan under which finances would
have been released to the New Orleans
school board so that it could run the
schools without interference while the
federal-state struggle over desegrega
tion was fought in the courts.
• Denied repeatedly though its lead
ers that all of its actions were aimed at
closing public schools and said if the
New Orleans schools close for lack of
finances it will be the school board’s
fault for refusing to step aside and let
the Legislature operate the city’s
schools. Board members have fought
ouster moves and refused to resign on
grounds that the Legislature will close
the schools if it gains control
(Continued on Next Page)
• . . And Declaring Doctrine of Interposition Unconstitutional
(Continued from Preceding Page)
constitutionality, who delimits the 10th Amend-
®nt. In theory, the issue might have been re
vived in several ways. But, as a practical matter,
tower our federal system the only solution short
0 anarchy was to assign the function to one su
preme court.
That the final decision should rest with the
j tociary rather than the legislature was inherent
, .“to concept of constitutional government in
inch legislative acts are subordinate to the
amount organic law, and, if only to avoid “a
in government from which nothing but
^diction and confusion can proceed,” final au-
tourt^ centralized in a single national
As Madison said before the adoption of the
“fhtution: “Some such tribunal is clearly es-
^ J al to prevent an appeal to the sword and a
cstahv *° n of the compact; and that it ought to be
1 under the general rather than under
? ca l governments, or, to speak more properly,
a j on 11 could be safely established under the first
e > to a position not likely to be combated.”
*al Arbiter
th e (T so > from the beginning, it was decided that
t*to fh Preme < -' ourt of the United States must be
It arbiter on questions of constitutionality.
ag ail °f course the guardian of the Constitution
• encroac hments by the national Congress.
■ In0re ifoportant to our discussion is the
Stat» u a°nal role of the court with regard to
original Judiciary Act of 1789 con-
v ie\v th ■ aut h°rity of the Supreme Court to re-
stiw e lodgments of all state tribunals on con-
t>n e 0 j . questions. . . . Likewise from the first
Uppalit lts functions was to pass on the constitu
ent ? u* state l aw s. • • • And the duty of the
U a 0 regard to the acts of the state executive
U°n .udferent. . . . The fact is that the Constitu-
lltiitej e <T esta blished the Supreme Court of the
ttouaj j > . tates as the final tribunal for constitu-
a Ppeai^ ludication. By definition, there can be no
The • • ® its decisions.
ly, conclusion is obvious enough. Plain-
t6v ision S / ates ’ whose proceedings are subject to
by the Supreme Court, can no more pre
tend to review that court’s decision on constitu
tional questions than an inferior can dispute the
ruling of an appellate court. From this alone “it
follows that the interpretation of the 14th Amend
ment enunciated by [the Supreme] Court in the
Brown case is the supreme law of the land, and
[that] Art. VI of the Constitution makes it of
binding effect on the states ‘any Thing in the
Constitution of Laws of any State to the Contrary
notwithstanding.’ ”...
But this is not all. From the fact that the Su
preme Court of the United States rather than any
state authority is the ultimate judge of constitu
tionality, another consequence of equal importance
results. It is that the jurisdiction of the lower fed
eral courts and the correctness of their decisions
on constitutional questions cannot be reviewed by
the state governments. Indeed, since the appeal
from their rulings lies to the Supreme Court of
the United States, as the only authoritative Con
stitutional tribunal, neither the executive, nor the
legislature, nor even the courts of the state, have
any competence in the matter. It necessarily fol
lows that, pending review by the Supreme Court,
the decisions of the subordinate federal courts on
constitutional questions have the authority of the
supreme law of the land and must be obeyed.
Assuredly, this is a great power, but a necessary
one. . . .
Patent Subterfuge
Apprehensive of the validity of the proposition
that the Constitution is a compact of states, inter
position asserts that at least a ruling challenged
by a state should be suspended until the people
can ratify it by constitutional amendment. But
this invocation of “constitutional processes” is a
patent subterfuge. Unlike open nullification, it is
defiance hiding under the cloak of apparent
legimacy. The obvious flaw in the argument lies
in the unfounded insistence that pending a vote on
the proposed amendment the questioned decision
must be voided.
Even assuming their good faith in proposing an
amendment against themselves, the interposition-
ists want too much. Without any semblance of
legality, they claim the right at least temporarily
to annul the judgment of the highest court, and,
should they succeed in defeating the amendment
proposed, they presume to interpret that victory
as voiding forever the challenged decision.
It requires no elaborate demonstration to show
that this is a preposterous perversion of Article V
of the Constitution. Certainly the Constitution can
be amended “to overrule” the Supreme Court. But
there is nothing in Article V that justifies the
presumption that what has authoritatively been
declared to be the law ceases to be the law while
the amendment is pending, or that the non-rati
fication of an amendment alters the Constitution
or any decisions rendered under it.
‘Blow off Steam’
The conclusion is clear that interposition is not
a constitutional doctrine. If taken seriously, it is
illegal defiance of constitutional authority. Other
wise, “it amounts to no more than a protest, an
escape valve through which the legislatures blow
off steam to relieve their tensions.” (Shuttleworth
v. Birmingham Board of Education.) However
solemn or spirited, interposition resolutions have
no legal efficacy. Such, in substance, is the official
view of Virginia, delivered by its present Gov
ernor while Attorney General. And there is a
general tacit agreement among the other inter
posing states which is amply reflected in their
failure even to raise the argument in the recent
litigation, the outcome of which they so much
deplore.
Indeed, Louisiana herself has had an “interposi
tion” resolution on the books since 1956, and has
never brought it forth. The enactment of the
resolution in statutory form does not change its
substance. Act 2 of the First Extraordinary Ses
sion of 1960 is not legislation in the true sense. It
neither requires nor denies. It is mere statement
of principles, a political polemic, which provides
the predicate for the second segregation package
of 1960, the legislation in suit. Its unconstitutional
premise strikes with nullity all that it would sup
port.
Without the support of the Interposition Act,
the rest of the segregation “package” falls of its
own weight. However ingeniously worded some of
the statutes may be, admittedly the sole object of
every measure adopted at the recent special ses
sion of the Louisiana Legislature is to preserve a
system of segregated public schools in defiance of
the mandate of the Supreme Court in Brown and
the orders of this court in Bush. What is more,
these acts were not independent attempts by in
dividual legislators to accomplish this end.
The whole of the legislation, sponsored by the
same select committee, forms a single scheme, all
parts of which are carefully interrelated. The
proponents of the “package” were themselves in
sistent on so labelling it, and expressly argued
that the passage of every measure proposed was
essential to the success of the plan.
In view of this, the court might properly void
the entire bundle of new laws without detailed
examination of its content. For, as the Supreme
Court said in Cooper v. Aaron, . . . “the constitu
tional rights of children not to be discriminated
against in school admission on grounds of race or
color declared by this court in the Brown case can
neither be nullified openly and directly by state
legislators or state executive or judicial officers,
nor nullified indirectly by them through evasive
schemes for segregation whether attempted ‘in
geniously or ingenuously.’ ”...
This court denies the interposition claim of the
State of Louisiana and declares Acts 2, 10, 11, 12,
13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27
and House Concurrent Resolutions 10, 17, 18, 19
and 23 of the First Extraordinary Session of 1960
unconstitutional. This court will prepare the de
cree enjoining their enforcement. The motions to
dismiss are denied. The motion to vacate, or delay
the effective date of, the order requiring desegre
gation of the New Orleans public schools is like
wise denied.
RICHARD T. RIVES, Chief Judge
United States Court of Appeals
HERBERT W. CHRISTENBERRY, Chief Judge
United States District Court
J. SKELLY WRIGHT, Judge
United States District Court