Opposition Brief — People ex rel. Fortune v. Brewster

Offics - S-- ems Court, U

a sid

D2C 19 1944

CHAPLES ELWORE OROPLEY

ULERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 769

FRED A. HUGHES, ET AL.,

Appellants,

vs.

CADDO PARISH SCHOOL BOARD, ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE WESTERN DISTRICT OF LOUISIANA

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM

Epwin L. Biewes,

District Attorney of Caddo Parish;

R. H. Leg,

Special Assistant Attorney General;

\ W.C. Perravtt,

Second Assistant Attorney General,

Counsel for Appellees.

INDEX

Supsect INDEX

Page

Statement opposing jurisdiction and motion to dismiss Page

History of the case... ........ cece cece ee eee

Unsubstantial character of the grounds stated by

Appellants under the 14th Amendment to the

United States constitution...................

The foregoing jurisprudence has long been approved

by the United States Supreme Court and is the

fixed and settled jurisprudence of both state and

da wa Sua GEr se Wied secbkeieaeed as

Pac. 929. ee AS ee EIR 2 SAE Aa NE Oe

Del Pozo Y. Marcos v. Wilson Cypress Co., 269 U. S.

irae hc soe wale k vd ws 6 heae ne 62 oes

Duncan v. Missouri, 152 U.S. 377, 38 L. ed. 485......

Favorite v. Board of Education, 235 Ill. 315, 85 N. E. 402.

Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 54

ee a das ee dé de besies

Lee v. Hoffman, 182 Ia. 1216, 166 N. W. 565.........

Levering & Garigues v. Morrin, 289 U. S. 103, 77 L. ed.

RG ne Uh ates 65 tk dans Ge kas We bie e eee vaso

McPherson v. Blacker, 146 U.S. 1, 36 L. ed. 869......

Mazwell v. Bugbee, 250 U. S. 525, 63 L. ed. 1124......

Patterson v. Standard Oil & Gas Co., 305 U. 8. 376, 83

ae Fe err e

Prudential Insurance Co. v. Cheek, 259 U. 8S. 530, 66

Slaughter House Cases, 16 Wall. 36, 21 L. ed. 394, 30

Ds SAN DOU. WU Ds sve veseesseeessscrecess

—5740

ii INDEX

Page

Smith v. Board of Education, 182 Ill. App. 342........ 10

Snowden v. Hughes, 88 L. ed. 347, 64 Sup. Ct. 397.... 12

State v. Jefferson Parish School Board, ——- La. —,

SC iaddvecosivased sles ouedé-enceeves 5

Steele v. Sexton, 253 Mich. 32, 234 N. W. 436......... 7

Sutton v. Board of Education, 306 Ill. 507, 1388 N. E. 131. 8

Twining v. New Jersey, 211 U.S. 78, 52 L. ed. 97...... 12

University of Maryland v. Coale, 165 Md. 224, 167 A. 54,

200 U. S. 507, 78 L. ed. 525. ............ 0. ce eee 12

University of Mississippi v. Waugh, 105 Miss. 623, 62 So.

827, 237 U. S. 589, 59 L. ed. 1131, 35 Sup. Ct. 720.. 9,10

Wayland v. School Directors, 43 Wash. 441, 7 L.R.A.

| ma lis aa Ge ae i aaa 10

Wilson v. Board of Education, 233 Ill. 464, 84.N.E.697. 10

Statutes CITED

Act No. 239 of the Louisiana Legislature of 1944......

Act No. 342 of the Louisiana Legislature of 1944 .....

Constitution of the United States, 14th Amendment...

—

“IC

UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF LOUISIANA,

SHREVEPORT DIVISION

Civil Action No. 1165

FRED A. HUGHES, ET AL.,

vs.

CADDO PARISH SCHOOL BOARD, ET AL.

OPPOSING JURISDICTIONAL STATEMENT AND

MOTION TO DISMISS OR AFFIRM

Appellees’ Statement as to Jurisdiction and Motion to

Dismiss or Affirm

The appellees, believing that the matters set forth be-

low will demonstrate the lack of substance in the questions

raised by this appeal, file this, their statement in opposi-

tion to appellants’ statement as to jurisdiction as amended.

Appellees include herein their motion to dismiss the ap-

peal or, in the alternative, to affirm the judgment of the

District Court on the grounds that the questions raised

on behalf of appellants are so unsubstantial as not to need

further argument.

The unsubstantial character of the ground stated by

appellants is so apparent on the face of the record as to

2

warrant the Court in summarily disposing of the appeal

at this stage of the proceeding.

Appellees show that plaintiffs-appellants’ pleadings are

unsubstantial in that:

(1) They fail to set forth a right of action arising

under the Constitution and laws of the United States.

(2) They fail to set up the deprivation, under color

of any law, statute or ordinance of any state, of any

right, privilege or imimunity created by the Constitu-

tion of the United States, or of any rights created by

any law of the United States providing for equal rights

of citizens of the United States.

(3) Plaintiffs-appellants’ complaint is lacking in

substantiality because the questions attempted to be

raised are controlled and foreclosed on the merits by

settled doctrine as established in the case of Waugh v.

Board of Trustees of the University of Mississippi,

237 U. S. 589, 59 L. Ed. 1131, 35 S. Ct. 720.

sEE aLso: Patterson v. Standard Oil & Gas Co., 305

U. 8. 376, 83 L. Ed. 231, 59 Sup. Ct. 259; Levering &

Garigues v. Morrin, 77 L. Ed. 1062, 289 U. 8S. 103;

Hannis Distilling Co. v. Baltimore, 54 L. Ed. 482,

216 U.S. 285; Del Pozo Y Marcos v. Wilson Cypress

Co., 70 L. Ed. 172, 269 U. S. 82.

The matters herein relied upon by appellees are more

particularly stated below:

History of the Case

The history of this case is:

(1) A committee was appointed by the Caddo Parish

School Board in July 1943 to investigate the matter

of secret societies in high schools.

(2) Only one high school out of ten in Caddo Parish

had secret societies (Byrd High School).

(3) With continuing wide publicity, numerous hear-

ings were had, each family in Byrd High School

3

(1700) was polled by letter, and in October 1943 the

committee reported, finding secret societies to be de-

trimental in high schools.

(4) The School Board, basing its action on its in-

vestigation and the report of its committee and after

consultation with the Attorney General and the State

Board of Education, on the report from the poll show-

ing that 85.3 per cent of the parents with children in

Byrd High School found secret societies to be detri-

mental to the educational system, passed a resolution

denying the holding of offices and honors in extra-

curricular activities to members of secret societies.

This resolution was passed November 3, 1943 (see cer-

tified copy attached as part of defendants’ Exhibit

‘‘A”’ to defendants’ motion of lack of jurisdiction over

the subject matter).

(5) The enforcement of this resolution was attacked

in the State District Court by present counsel, repre-

senting fraternities and sororities, on the same

grounds of unconstitutionality alleged in this case.

A preliminary injunction was denied, and application

was made to the Supreme Court of Louisiana for

supervisory writs which was denied with the state-

ment: ‘‘Application for writs denied—judgment cor-

rect,’’ and after trial (inj. denied) on the merits that

case is now pending on appeal to the Supreme Court

of Louisiana, said case being entitled Amelia F. Cook

et al. v. Caddo Parish School Board et al., No. 37,394

Supreme Court docket (see copy of original petition

and plea of unconstitutionality identified as defend.

ants’ Exhibit ‘‘C’’ attached to defendants’ supple-

mental motion of lack of jurisdiction).

(6) The Louisiana Legislature at its 1944 session

passed Act 342 of 1944, setting forth the penalty of

suspension or expulsion after a parish school board, in

the exercise of its constitutional authority, had passed

a resolution prohibiting secret societies,

(7) On September 6, 1944 the Caddo Parish School

Board passed a resolution prohibiting fraternities and

4

sororities, under penalty of suspension or expulsion

(as shown by copy of the resolution attached to appel-

lants’ amended jurisdictional statement). The School

Board asserted its authority both under the resolution

and under the Act.

(8) The enforcement of this resolution was attacked

by present counsel in the case of O. G. Collins et al. v.

Caddo Parish School Board et al., and a preliminary

restraining order issued, (suit No. 90,387, First Judi-

cial District Court, Caddo Parish, Louisiana). On

hearing, the preliminary restraining order was recalled

and the preliminary injunction refused. The lower

court held that the School Board had full authority to

pass the resolution and that it did not infringe upon

any rights of the plaintiffs or their children. (See

certified copy of Judge Galloway’s opinion included in

defendants’ Exhibit ‘‘B’’, together with certified copy

of Plaintiffs’ application for writs, and defendants’ op-

position thereto, all attached to defendants’ motion of

lack of jurisdiction over the subject matter.) The

same constitutional questions were raised in that suit

as are raised in this. Writs were applied for to the

Supreme Court of Louisiana which were refused with

’ the statement: ‘‘Application for writs refused. No

error of law in the ruling complained of.’’ (Return

on writs attached to defendants’ Exhibit ‘‘B’’ supra.)

(Writs refused by unanimous opinion in both the Cook

case and the Collins case.)

(9) Thereupon, the same counsel obtained a tem-

porary restraining order in the Federal District Court

and filed this suit therein, based on the identical allega-

tions as in the Collins case.

(10) Defendants-appellees herein filed a motion and

supplemental motion of lack of jurisdiction over the

subject matter, which were argued and briefed before

a 3-judge court, said court sustaining the motion and

supplemental motion aforesaid and dismissing plain-

tiffs’ suit for lack of a Federal question.

5

From the above statement of facts and the matters

hereinafter set out, it has been established by the Supreme

Court of Louisiana that the local school board has authority

to regulate secret societies. Having this authority, the

only way a Federal question could arise would be from an

arbitrary and unreasonable abuse of that authority. The

above facts clearly show, and the State Supreme Court has

held as shown hereinafter, that there was no such abuse of

power. Therefore, no Federal question has been raised

by plaintiffs’ complaint or assignment of errors.

The Supreme Court of the State of Louisiana in State

v. Jefferson Parish School Board, — La. —, 19 So. (2d)

153, at pages 166 (second column) and 167 (first column),

and syllabus number 3, held, relative to the case of Cook

et al. v. Caddo Parish School Board et al., No. 37,394, that:

‘In short, the court concluded that there was no in-

vasion or deprivation of any legal right of the com-

plainants and that the Board had acted within the scope

of its power.”’

Therefore, in the above case, the Supreme Court of Louis-

iana has clearly stated its exact grounds for refusing writs

in the Cook case, and this will equally apply to the Collins

case when writs were refused because the identical ques-

tions were involved.

Therefore, the Supreme Court of Louisiana has held:

(1) That the local school board had full authority

to pass the resolutions involved in the suits of Cook

et al. v. Caddo Parish School Board and Collins et al.

v. Caddo Parish School Board;

(2) That there has been no invasion or deprivation

of any legal right of the complainants in either case

by the passage of these resolutions; and

(3) That the Federal constitutional questions as-

serted were not involved.

6

On the above showing of the proceedings in the State

courts, the 3-judge Federal Court hearing the matter held

that all matters arising under the State constitution have

been precluded and that the only matters left to be con-

sidered by the Federal Court were those wherein there were

alleged violations of the 14th Amendment to the Constitu-

tion of the United States.

Unsubstantial Character of the Grounds Stated by Appel-

lants Under the 14th Amendment to the United States

Constitution.

That fraternities and sororities are a proper subject for

school regulation is shown by the fact that twenty-three

states, namely:

Arkansas Maine Ohio

California Michigan Oklahoma

Colorado Minnesota Oregon

Florida Mississippi Rhode Island

Illinois Montana Vermont

Indiana Nebraska Virginia

Iowa New Jersey Washington

Kansas Louisiana

have passed statutes which prohibit, or provide for the

regulation of, high school fraternities and sororities. Out

of these states litigation has been instituted by secret

society members and has been carried through the state

supreme courts of California,.Iowa, Illinois, Michigan, Mis-

sissippi and Louisiana, and in each instance the statute was

upheld, the courts holding, relative to the 14th Amendment:

Bradford v. Board of Education (1912) 18 Cal. App. 19,

121 Pac. 929, at pp. 932 and 933:

‘*It has been held that rights and privileges granted

to citizens which depend solely upon the laws of a

state are not within this constitutional inhibition.

* * * The system of public schools of this state is

7

a state institution, and is subject to the exclusive con-

trol of the constitutional authorities of the state.

* ° * ‘The privilege of receiving an education at

the expense of the state is not one belonging to those

upon whom it is conferred as citizens of the United

States, and therefore, so far as the privileges and im-

munities clause of the fourteenth amendment is con-

cerned, might be granted or refused to any individual

or class at the pleasure of the state.’ 6 Am. & Eng.

Ency. of Law, p. 77.”

In the above case the statute made it unlawful for any

pupil to join or to become a member of

‘‘any secret fraternity, sorority or club, wholly or

partly formed from the membership of pupils attending

such public schools,’’

the penalty being suspension, or if necessary expulsion.

The plaintiff invoked the privileges and immunities clause,

class legislation, and that ‘‘it deprives a citizen of the right

to attend a public schooi of this state.’’

The court said:

“It is quite apparent to us that the younger and more

immature pupils of the public schools may quite

properly form a class and be made the subject of this

character of legislation. * * * The statute applies

equally to all of the particular class mentioned.’’

Steele v. Sexton (1931), 253 Mich. 32, 234 N. W. 436, at

pp. 437, 438.

The statute in this case made it unlawful to belong to

high school fraternities, ete. The school board was given

power to suspend or expel, and the Act made it illegal for

school officials to give a violator credits or to allow him to

graduate. In attacking the statute the plaintiff invoked

the due process clause, and equal protection of the law

clause of the 14th Amendment of the United States

Constitution.

8

In answer to those objections the court said:

**It was well said in University of Mississippi v.

Waugh, 105 Miss. 623, 633, 62 So. 827, 830, L. R. A.

1915D, 588, Ann. Cas. 1916E, 522: ‘The fourteenth

amendment to the Constitution of the United States

was never intended to act as an accomplice to any

young man who wanted to take advantage of the

gratuitous advantages offered the youths to obtain

an education, and yet refuse to obey and submit to the

disciplinary regulations enacted by the Legislature for

the welfare of the institutions of learning. The right

to attend the educational institutions of the state is |

not a natural right. It is a gift of civilization, a bene-

faction of the law. If a person seeks to become a bene-

ficiary of this gift, he must submit to such conditions

as the law imposes as a condition precedent to this

right. The act in question is not class legislation. It

is quite the reverse, and seeks to destroy the possibility

of the existence of any class at the educational institu-

tions. No state or federal constitution is violated by

this act in any way. Complainant is not deprived of

any constitutional right, unless complainant can be

said to have a constitutional right to breach the

discipline of the school and set at naught the laws of

the state.’ ’’

Lee v. Hoffman (1918), 182 Ia. 1216, 166 N. W. 565, at

page 567.

An anti-fraternity statute was attacked on the ground of

arbitrary differentiation and discrimination, class legisla-

tion, and under equal protection of the laws.

The court held it valid on all counts and stated

‘*The statute does not deny the equal protection of the

law by making an arbitrary differentiation, even if a

statute had no better standing than a mere rule (of a

local school board).’’ (Parenthesis ours.)

Sutton v. Board of Education (1923), 306 Ill. 507, 138

N. E. 131, at p. 135.

_ ——

9

The statute in this case defined a public school frater-

nity, sorority or secret society in the identical language

of the resolution and statute under attack in the instant

case, namely:

**as one composed wholly or in part of public school

pupils on the basis of the decision of its membership

rather than the free choice of any pupil in the school

who is qualified by the rules of the school to fill the

special aim of the organization.’’

The penalty provided was suspension or expulsion. The

court, at page 133, reviewed cases arising under anti-fra-

ternity society rules adopted by boards of education, and

stated:

‘Every question raised in this case has been previously

adjudicated by the courts of this and other states.’’

The court discussed and approved Bradford v. Board of

Education, 18 Cal. App. 19, 121 Pac. 929; University of

Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, 239 U. S.

589, 35 Sp. Ct. 720, 59 L. Ed. 1131, and then said:

‘‘Appellant was given his choice between suspension

or expulsion, and severing his connection with the

Greek letter society while a pupil in the public school.

If he had complied with the requirements of the law

and the rule of the board, his continued attendance.at

the public school would not have been interfered

with.’’

In No Case that we have been able to find has a court

of final authority failed to uphold the validity of a statute

regulating secret societies.

In the following cases it was so well settled that local

school boards had the authority to pass rules and regula-

10

tions governing secret societies, that no constitutional ques-

tions were raised or discussed:

Wayland v. School Directors (1906), 43 Wash. 441, 7

L. R. A. (N. 8.) 352, 86 Pac. 642;

Wilson v. Board of Education (1908), 233 Ill. 464, 84

N. E. 697;

Favorite v. Board of Education (1908), 235 Ill. 315, 85

N. E. 402;

Smith v. Board of Education (1913), 182 Ill. App. 342;

Antell v. Stokes (1934), 191 N. E. 407 (Mass.).

The Foregoing Jurisprudence Has Long Been Approved

by the United States Supreme Court and is the Fixed

and Settled Jurisprudence of Both State and Federal

Courts.

In the following case, which the 3-judge court from which

this appeal is taken found to be entirely analogous with

the case at bar:

University of Mississippi v. Waugh (1915), 105 Miss.

623, 62 So. 827, 237 U. S. 589, 59 L. Ed. 1131

and which is thoroughly discussed in the opinion of the

lower court (see copy of opinion rendered by 3-judge court

attached to plaintiffs’ amended jurisdictional statement),

it was specifically held that the statute Did Not Violate the

Due Process Clause of the 14th Amendment or the Equal

Protection of the Laws Clause or the Privileges and

Immunities guaranteed by the United States Constitu-

tion, the court further stating (59 L. Ed. at p. 1137):

‘*It is very trite to say that the right to pursue happi-

ness and exercise rights and liberty are subject in

some degree to the limitations of the law, and the con-

dition upon which the State of Mississippi offers the

complainant free instruction in its university, that

while a student there he renounce affiliation with a

ll

society which the state considers inimical to discipline,

finds no prohibition in the 14th Amendment.”’

We particularly call the Court’s attention to the fact

that in the Waugh case as reported in 59 L. Ed. page 1131,

the briefs of the complainant there digested show that

All of the Attacks Made by the Complainants in This Case

were made in that case without avail. The Waugh case

covers a situation in which even broader authority was

delegated than in the case at bar. In the Waugh case the

Board of Trustees were given the authority to permit

present members of the fraternity to continue their fra-

ternal membership so long as they conducted themselves

properly. Even the authority given the Board of Trustees

in making these further discriminations was upheld. In

the case at bar no student is given any preference over

any other student in any way. They are all placed on

identically the same footing.

Accordingly, inasmuch as the rights asserted by the

plaintiffs in this case are not granted to them by the Con-

stitution of the United States as citizens of the United

States, then no Federal question is involved; and since all

grounds of attack and all matters urged in this case have

been completely settled by the jurisprudence of the Su-

preme Court of the United States as set forth in the Waugh

case, supra, as well as the jurisprudence of the courts of

last resort throughout the country, as shown above, then

the matter is foreclosed and the complaint is lacking in

substantiality.

It has been consistently held by the United States Su-

preme Court that:

The privileges and immunities protected by the 14th

Amendment are only those that belong to citizens of

the United States as distinguished from citizens of

the States—those that arise from the Constitution and

12

laws of the United States as contrasted from those

that spring from other sources.

In discussing the Slaughter-House cases, 16 Wall, 36, 72-

74, 77-80, 21 L. Ed. 394, 407-410, the court said in 30 Fed.

Cases, No. 18,260:

‘The great body of our civil and political rights,

that of acquiring and enjoying property, real and per-

sonal, to exercise trades, ATTEND SCHOOLS and

churches, to be protected against personal violence

and enjoy the freedom of opinion, were declared to

REST ENTIRELY UNDER STATE PROTECTION

and were not included in this Amendment (14th

Amendment).’’ (Capitalization, underscoring and

parenthesis ours.)

also:

McPherson v. Blacker, 146 U. S. 1, 38, 36 L. Ed.

869, 878;

Duncan v. Missouri, 152 U. 8. 377, 382, 38 L. Ed.

485, 487;

Twining v. New Jersey, 211 U. 8. 78, 97, 52 L. Ed.

97, 105;

Maawell v. Bugbee, 250 U. 8S. 525, 538, 63 L. Ed.

1124-1130;

Prudential Ins. Co. v. Cheek, 259 U. 8. 530. 539,

66 L. Ed. 1044, 1052;

Snowden v. Hughes, 88 L. Ed. 347, 64 8. Ct. 397.

Moreover, even where there is a direct right set up in

the Federal Constitution, such as the PROTECTION OF

RELIGIOUS LIBERTY, this has been held subservient to

the right of a state to regulate the requirements of its own

school system, and the necessity that a prospective pupil

must conform thereto has been consistently upheld by this

Court; and thus

in University of Maryland v. Coale, (1933), 165 Md.

224, 167 A. 54, 290 U. S. 597, 78 L. Ed. 525,

The Court decided against the contention of a stu-

dent in the University of Maryland who on conscien-

_

13

tious grounds objected to military training there

required. His appeal to this Court was dismissed

for want of a substantial Federal question.

The report of this Per Curiam opinion in 78 L. Ed.

525 shows that in dismissing the appeal for want of

a substantial Federal question, the Court cited, among

other cases, Waugh v. University of Mississippi, 237

U. S. 589, ete.

Counsel for plaintiffs, in arguing the matter of Federal

jurisdiction, attempted to differentiate the Waugh case

from the case at bar on the ground that Louisiana has

a compulsory education statute.

We call the Court’s attention to the fact that the statute

referred to does not require the plaintiffs’ children to be

sent to any public school.

Citing from Act 239 of 1944:

“Be it enacted by the Legislature of Louisiana, That

every parent, etc. * * * shall send such child or

children to a public or PRIVATE DAY SCHOOL

* * *.’? (Underscoring and capitalization ours.)

We contend that this statute has no effect whatever on the

present case because it is clear that parents have the

choice of complying with the regulations under which a

free public education is offered their children by the State

of Louisiana, and if they do not choose to comply with

these regulations, then they are free to send their children

to any private school that they see fit, there being ample

accommodations provided in private high schools in Shreve-

port, Louisiana, where complainants’ children reside.

Wuenerorg, appellees respectfully submit this statement

showing that the questions upon which the decision of this

cause depends are so unsubstantial as not to need further

argument, and appellees respectfully move the Court to dis-

miss this appeal at costs of appellants, or, in the alterna-

14

tive, to affirm the unanimous decision entered by the Hon-

orable Three-Judge Court assembled to hear this com-

plaint, sustaining the Motion and Supplemental Motion of

Lack of Jurisdiction Over the Subject Matter and dismiss-

ing the suit of plaintiffs-appellants at their costs.

(S.) Epwin L. Biewer,

District Attorney of Caddo Parish,

Louisiana, and Ex-Officio,

Attorney for Defendants,

201 Courthouse,

Shreveport, Louisiana;

(S.) R. H. Leg,

Special Assistant Attorney

General of Louisiana,

Baton Rouge, Louisiana;

(S.) W. C. Perravutt,

Second Assistant Attorney

General of Louisiana,

Baton Rouge, Louisiana,

(Member of United States Supreme Court Bar),

Attorneys for Defendants-Appellees.

(Mailing address for all attorneys for defendants-appel-

lees is: Room 201, Parish Court House, Shreveport, Loui-

siana.)

(5740)