# Motion to Affirm — Louisiana Financial Assistance Commission v. Poindexter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1032%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Affirm - **Published:** January 1, 1968 - **Citation:** 389 U.S. 571 ## Text | ‘ported: at 258 F. Sapp. 158. ye the Supreme Gone of the ated sis » OcTOBER TERM, 1967 2 No. LovistaNA FINANCIAL ASSISTANCE Comatission, ET AL. | APPELLANTS » Vv. : > , ts . Bryan. PornDEXTER,, ET AL., AND UNITED STATES OF AMERICA, APPELLEES ON ‘APPEAL FROM THR ‘UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT .OF LOUISIANA MOTION TO AFFIRM ae | ‘Peles to Rule 16(1) (c). of the Bales of this Court, the United States moves that the judgment of "the district court ‘entered on August 26, 1967, be affirmed. pres OPINIONS BELOW The opinion of the three-judge district court sup- . . porting the decree from which this appeal is taken . (J.8, A17-A63) ‘is not }€ét reported. A prior” opinion of- district court in this cause (JS. A1-A16) is Te- (1) > 28403267 _ ett | JORISDICTION . The ‘decree of the three-judge district court (J. S. A17-A63) | way entered on, August: 26, 1967. A inotice a appegl was filed-on September 8, 1967. The Juris: - - dictional Statement was filed’ on Névember 6," 1967. The jurisdiction of this Court is invokéd under 28 ve USC. $1358. QUESTION PRESENTED = Whether the district court was correct in holding __ -that the Louisiana, statutes ‘providing financial aid for. ‘tuitiom to attend private schools denied Negro chil- .. dren the equal protection of the laws. . /! - STATEMENT - This. is an appeal. from a- final judgment entered . by a three-judge district-court in the Eastern District .. of Louisiana, convened pursuant to 28°U.S.C. § 2281, holding invalid Aet 147 of the 1962 Session of the . Louisiana Legislature (L.SA-RS. §§ 17 :2951-2959). That statute authorizes State financial assistance td- . . Stadents attending private, non-sectarian elementary and secondary schools’ in Louisiand and’ establishes the Louisiana Financial Assistance. Commission to 3 | administer the aid'’p program. The original complaint was filed on June 29, 1966,. on 2 class. action on’ behalf of Negro school children in. The plaintiffs sought to enjoin ‘the en- © forcement, operation, and exeoutjon of [the Louisiana. - tuition grant statutes] by restrainiag certain officers of :the. State of Louisiana from the enforcement or | execution of such statutes on the ground of the uncon- _ stitutionality of such statutes under the Constitution of 3G | 3 oe | . the Uilitea States.” It was alleged that s athahannh of the statute worked a deniat of. the equal protection — of the laws on the basis of race ingviolation of: the Fourteenth Amendmént. Named as flefendants Were | the Louisiana Financial Assistance | Commission, the Louisiana State Board of Education, the Orleans Par- ish School. Board, and. the officers’ and members of “each, and tliree private schools to which the plaintiffs had been denied admission” ; - In response to this complaint, the defendants filed a. ‘motion to dismiss’ on the ground that the. plaintiffs . lacked standing to sue in that:they sought only to enjoin thé disbursement of /public fynds to students attending segregated schools and did not attack the constitutiofiality of the statute. "The defendants also° _. .chatéaged the convening of.a three-judge court. The — = district ‘court. overruled these objections i in ah opinion . filed August’ 3, 1966 (J.S. A1l-A16).. The court held ‘that “the plaintiffs have standing to sue, and to probe ‘thy purpose, amechanics, ande effect’ of the plan’ in‘ ' + light of present constitutional standards” (J.S. A10), On October 19, 1966, the United States filed-its motion, ° for leave to intervene as a party plaintiff pursuant to © Section 902 of the Civil Rights Act of 1964 (42 U.S.0. 2000h-2) and Rule 24 of the Federal Rules of Civil , Procedure.’ The government, alleged that Act’ 147 had - “aThe pr privaie schools were subsequently : dismissed as parties . defendant on tMfe motion of the plaintiffs. - ” Defendarits Abjected to this intervention on the. ground that’ it.sought to have thé“statute declared’ unconstitutional on its. face whereas the private plaintiffs had only asserted .its uncon-* —— bai facuig This ee, was overeind 7 the | court. | . a > ¥) * a been designed to provide segregated schools for white Pupils. and that its operation had resulted i in the estab- ~ fishment of a state-supported segregated school system in the State of “Louisiana in‘ violation of the equal _. protection clause of the F§irteenth Amendment. . After a full’ hearing on the merits, the district court, on August 25, 1967, rendered its decision holding Act 147 unconstitutional and enjoining its further en- forcement and ‘execution (J.S. A17-A57). The court found‘ that “{t]he purpose and natural or reasonable: effect of this law are to continue segregated education . ia, Louisiana by providing state funds for the estab- lishment and support of segregated, privately oper- ated schools for’ white children,” and concluded that Act 147 vivlates the Equal Protection Qlause because it constitutes “affirmative and purpo state aid © promoting private discrimination” (J.S. A19, A20).. - . Yn reaching its decision on the constitutionality of - Act 147, the district court initially considered the pur- _ pose ‘of that Act “in the light of its history and present © setting.” After trating the early history of public education in Louisiana, the court focused on State . legisfative action’ after the first: Brown decision in . . $954, comthenting: ‘that, “[gjs fast as the courts.’ knobled. ‘out ome school law, the legislature enacted | another. ” Specifically, the court stressed that two of these invalidated statutés embodied tuition grant — schemes “designed to provide a state-supported sane- . tuary for white children, j in flight - from sesegroeated rome public schools” (J.S. ‘A23,,A19).*. 8 Act 258 of 1958: (L. S.A-R.S. 817 391: 1-391°16) provided - for tuition on. to “children gees ho-seftarinn non- _ ’ : $ oo _ i / ‘ 2 : 5. , | Although the court, found thet “the. tuition ors ts have supplied a heayy predominance of funds needed _ to establish and ‘maintain post-1954 and especially post-1962 private segregatedy schools,” it’ was urged to save.the statute for the future in light of a-recent | resolution adopted by Louisiana Financial Assistance © a limiting grants, starting in June 1967, to ‘applicants attending schools not “predominantly main- . _ tained” by these grants. That atpument was premised ‘on the “predominance” test used by the three-judge court in Griffin’ y. State Board of ‘Education, 239 F. ~ Supp. 560 (ELD. Va, not appealed), and thé adfnition of a “public school” contained in Title IV of the Civil Rights Act of 1964. In-rejeeting this suggestion, the _ district court stated (JS. A50-A51) : When state funds predominantly sepport a private ‘segregated school and hen such a school, by congressional: act; may be described - as a “public school” for certain purposes of the. . Civil Rights Act of 1964, the state involvement - ‘ public schools,” provided there were “no sutalle separate pub- lic school” in the parish. This blatantly discriminatory statute was repealed in 1960 by Act 3 pf the, Second Extraordinary “Session of 1960: (L.S.A-R.S. $17:2901 et seg.) which sub-- - stituted ‘a less openly discriminatory tuition grant system. This second statute was declared itutional. in Hall v. St. Helena Parish Schgol Board, 197 F. Supp. 649,- affirtaed - . per curiam, 368° U‘S. 515.°The case now: before this Court ' represents the third grant ‘statute and, as the district court - noted, a fourth statute was enacted to take effect-when Act » ' 147 was: invalidated—an eventuality that apparently was ex- pected. The execution of this fourth statute has now been a enjoined pending a determination of its constitutional validity “in a subseqyent proceeding before the district court in this PE NLLN ALA, LORE IO LRA - - - 6 is a double fortiori case of unconstitutional state action. But decisions on the constitution- - ality of state involvement. in private discrimi- - nation do not turn on whether the state-aid -, ' adds up to 51 per cent or adds up only to 49 per cent of the support ot tKe.segregated insti- fo-o' tution. The criterion is whether the state is so. significantly involved in the private discrimina- asf tion as to render the state action and the private — | action violative of- the equal protection clause. (Here the plaintiffs ask only that the state be _ @ enjoined from paying the tuition grants}, not that the schools be desegregated.) > ** * Any aid to segregated schools that is the ‘ product of the State’s affirmative, purposeful policy of fosteing segregated schools and has .. the effect of encouraging discrimination is sig-— nificant state involvement in private discrimina- tion. (We distinguish, therefore, state aid from tax: benefits, free schoolbooks, and other products © .of the State’s traditional policy of benevolence _, , toward charitable and educational institutiouis.) A tes seneces and parentheses | in original. | > pate env. The district court was correct in (hia: that the Louisiana tuition: grant statute denied Negro-school™’ -“" children i in that State the equal protection of the laws ae guaranteed. by. the Fourteenth Amendment. The court * The. appellants cite 9s error the tefusal of the court below te dismiss the complaint, and complaint in i terevntion, on the ground of the lack of standing of. the cgmplaining parties. The right of Negro children to complain ig established by their _ ‘interest. as. public ‘school age children iy & meaningfully de- segregated. public education system which is directly affected by Act 147.. See eG» oT School District v. es NY LAA EOL 7 followed accepted standards for- determining consti- -.. tutionality when it considered the purpose’ of the statute and found that it was one of creating and -maintaining a system of segregated schools in which white pupils could find a refuge from the desegrega- tion of public schools. In reaching this determination, : the court quite properly considered the historical - setting of Act 147 as part of the context of facts and circumstances surrounding its’ enactment. See, e.9., ‘Grosjean v. American Press Co., 297 U.S. 233 ; Miller v. . City of Milwaikee, 272 U.S. 713; and especially Grif- fin v. School Board %f Prince Edward County, 377 U.S. 218, 231; Cooper v. Aaron, 358 U.S. 1;. Louisi- ana v. United States, 380 U.S. 145. The context clearly . revealed that the statute was but one of the more recent in-a long iine of enactments by the Louisiana legisla- ture directed’ at insuring a system of .segregated schools. Specifically, the evidence disclosed that Act .. 147 was simply a moré sophisticated substitute meas- ure designed to replace the earlier’ tuition grant statute held uneonstitutional in Hal] v. St. ‘Helena Parish School. Board, 197 PB. Supp: 649, affirmed per curiam, 368 US. 515} } 374 U.S. 208, 294; ,, Moola v. Board of Education, 833 US. 203, 206. The standing of |the United States is settled by Title . IX.. of the Civil Rights ‘Act of 1964 (42 U.S.C. - § 2000h-2), which clearly authorizes it-te raise all issues not foreign to the original action. See, ¢.g., Stewart-Warner Corp. v. West- inghouse “Electric Corp., 325 F. 2d 822 (C.A. 2), certiorari — - denied, 376°U.S. 944. - * _ &The appellants argue that.the court erred in inihaiiine public statements made by legislaters concerning: the enactment of Act’147. Such statements are the traditional material: from - _ which legislative history is compiled. Humphrey's Executor v. <= . RO ee OB . ; ck ate ‘The court did not, however, rest its decision solely on the finding that Act 147 was intended to promote . eS re the establishment and maintenance of a system of seg- | : _ Pegated sehdols; there was also ample evidenee that | the statutory purpose had been fully effectuated. Thus, eres - -it was found that the tuition grant system had in fact © = provided “the financial means necessary to. gstablish -and maintain” the segregated private sehools. orga- nized im its wake. Clearly, Act 147 had “significantly : involved” the State in the racially ‘discriminatory = = —~ | _ praetices of some seventy-eight recipient private , ih Ea schools. See, ¢.9., Cooper.v. Aaron, supra; Andersonv: ~ ~° | Martin, 375 U.S. 399; Lombard v. Louisiana, 373 U.S. | 267 ; ‘NAACP. v. Alabama, 357 U.S. 449; Hamm v. Virginia State Board of Elections, 230 F. Supp. 156, ne affirmed per curiam sub nom. Fancil v. Woolls, 379 Seed U.S. 19. Whatever the merits of the “predominant _ support” eriterion adopted in Griffin v. State Board _ of Education, 239 F, Supp. 560: (E.D."Va.), the court’ _ - below was justified in not following it here.” Here— | United States, 295 U.S. 602; Standard Oil Co. v. United States, 7. 221 U.S 1. In reviewing such expressions of purpose, the court 7 correctly ‘admitted newspaper accounts, accompanied by the swoxn statements of the authors as to their presence at the event and the accuracy of their reports, since Louisiana maintains no — official records of legislative debates or committee proceedings | and no verbatim transcript is available. See, ¢.g., United States v. Louisiana, 225 F. Supp. 353, affirmed, 380. U.S. 145; Hall v. - St. Helena Parish Schoob Board, 197 F. Supp. 649, affirmed per curiam, 368 U.S. 535; Davis v. Sehnell, 81: F. Supp. 872, affirmed per curiam, 336 US. 933.° ©Phe district court was also correct in rejecting ‘the appel- jant’s argument that it was beund, in passing on the consti- tutionality of the~state action, by the definition contained in : ee ee ee eee 9 unlike the Virginia janet court file the statute -— discriminatory in both purpose and effect, and con- cluded that the State could not effectively disentangle its involvement in the segregationist scheme by simply . limiting the scope of the law. At least in the Louisiana ate context, it would be difficult to condone as “neutral” State payments made to segregated ‘schools pursuant on _ to a'statute conceived in the hope of perpetuating edu, ~ cational discrimination even when the grants’ consti- — tute less than half: the school’s operating funds. In the circumstances, we submit. the court below was wholly warranted in striking down the whole of the statute — and the attendant scheme. | CONCLUSION For the reasons: stated, the judgment of the court ‘below should be affirmed. . menpemnany submitted. ERWIN N. Sas, “ioe Solicitor Gaievel. | J OHN Doak, — Assistant Attorney General. _ DECEMBER 1967. | . as one wholly or predominantly operated by. government funds. By its very terms, that definition is given only. for the purposes of Title IV ‘and does not. purport to limit the jurisdiction of - the federal courts in defining the obligation of states under — the — Aniendment. . cw > so ee ° 5 U.S, GOVERNMENT PRINTING OFFICE: 1967 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1032%3A3. Public record. Not legal advice.