History of the Federal Judiciary

History of the Federal Judiciary

  Bush v. Orleans Parish School Board and the Desegregation of New Orleans Schools
Historical Documents

U.S. Court of Appeals for the Fifth Circuit decision affirming Judge Wright’s desegregation order, 1957

The Orleans Parish School Board appealed Judge Wright’s desegregation order to the U.S. Court of Appeals for the Fifth Circuit, claiming that Judge Wright had misconstrued the U.S. Constitution and its application to various Louisiana state statutes designed to preserve school segregation. One year later, a three-judge panel of the court of appeals unanimously and decisively sustained Judge Wright’s order.

[Document Source:
Orleans Parish School Board, Appellant v. Earl Benjamin Bush et al., Appellees, 242 F.2d 156 (5th Cir. 1957).]

United States Court of Appeals Fifth Circuit.
Orleans Parish School Board, Appellant, v. Earl Benjamin Bush et al., Appellees.
No. 16190.
March 1, 1957.
Before Rives, Tuttle and Brown, United States Court of Appeals Circuit Judges.
Tuttle, Circuit Judge:

. . . 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 complete relief from this defendant, because any sanctions compelling it to continue its illegal conduct fall when the Court determines that such sanctions are illegal. . . .

. . . Appellant nowhere in its brief undertakes to explain the process 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 statistical 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, attributes 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 particular 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 protection 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. . . .

. . . 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 perfectly 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. . . .

. . . 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 classification 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.


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