United States Court of Appeals

Fifth Circuit

FILED

August 6, 2004

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________________

No. 03-30627

_______________________

VERTREES MOSES, by his father and next friend Wilton Moses

and all other Negroes similarly situated; MILDRED JENKINS;

MCKESIA THOMAS; NORMA BICKHAM; DONNIE BRUMBLIELD;

UNITED STATES OF AMERICA,

Plaintiffs-Appellees,

versus

WASHINGTON PARISH SCHOOL BOARD, a Corporation;

RICHARD N. THOMAS, President;

DENNIE FOWLER, Superintendent,

Franklinton, Louisiana,

Defendants-Appellees,

versus

BOWLING GREEN SCHOOL,

Intervenor-Appellant.

______________________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

______________________________________________________________________________

Before SMITH, BENAVIDES, and PICKERING, Circuit Judges.

PICKERING, Circuit Judge.

This case demonstrates the progress we have made, yet the distance we have to go to

eliminate the vestiges of past racial discrimination.

PROCEDURAL BACKGROUND

This lawsuit was first filed in 1965, resulting in the Washington Parish Public Schools

being integrated in 1969. Simultaneously with the integration of the schools, Bowling Green
1This opinion will refer to the Record on Appeal in this case as R. Volume: Page.

2

School was organized as a private racially segregated school. Louisiana apparently has a long

history of providing aid in the form of textbooks, library books, supplies, equipment and

transportation to students in private schools. In 1974, plaintiffs in this case alleged that

Washington Parish Public School District had unconstitutionally provided considerable aid to

Bowling Green School in the form of equipment, furniture and books. After a hearing the trial

court found “[i]t is obvious to the Court that the effect of the aforementioned aid to this private

racially segregated school constitutes a public encouragement of private discrimination which has

the effect of diluting and frustrating our efforts to integrate this public school system in

Washington Parish.” R. 5: 1349.1 The court then enjoined Washington Parish School Board

from “providing school textbooks. . . other materials and equipment. . . transportation. . . and

providing any other assistance to the Bowling Green School. . .” Id. at 1351.

In 1975 a separate lawsuit, Brumfield v. Dodd, 405 F.Supp. 338 (E.D. La. 1975), was

filed with some or all of the plaintiffs in the instant litigation, along with others bringing suit

against certain state officials, the Louisiana State Board of Elementary and Secondary Education

(BESE) and six Louisiana parishes, including Washington Parish. This was a class action against

the State and these six parish school districts. The Brumfield court was a three judge panel within

the same district as the case at bar. The order entered in Brumfield applied to all defendants, and

enjoined the state defendants and the six parish school districts from “distributing or otherwise

making available textbooks, library books, transportation, school supplies, equipment, and any

other type of assistance, or funds for such assistance, to any racially discriminatory private school

or to any racially segregated private school.” Brumfield, 405 F.Supp. at 349. The acts enjoined
2Plaintiff’s Exhibit 5, April 24, 2003, hearing.

3

by the Brumfield court in 1975 were basically the same acts that were enjoined by the court in this

case in 1974. However, the court in Brumfield created a mechanism for BESE to certify that

private schools were no longer racially discriminatory and thus make them eligible for state

assistance. See Brumfield, 405 F.Supp. at 349-54.

From 1974 until 1999 Bowling Green made no effort to become Brumfield certified. 

Louisiana for some time has had a scholarship program called the Tuition Opportunity Program

for Students (TOPS) providing college scholarships for students graduating from high school with

a B average or better. In the spring of 1999, the Louisiana Legislature amended the TOPS

program to require that “any student requesting an award of TOPS money had to be enrolled in a

school that was eligible for such grants and be in effect a Brumfield v. Dodd certified school.” R.

8: 41.

In July of 1999, Bowling Green for the first time applied for Brumfield v. Dodd

certification. Although BESE submitted Bowling Green’s application to the Justice Department,

the Justice Department objected to Bowling Green’s application noting that Bowling Green had

no African American students and indicating Bowling Green would have to offer “substantial and

credible evidence of objective acts and declarations showing that the absence of Blacks was not

proximately caused by the school’s policies and practices”2 to be eligible for certification. 

Bowling Green was not certified at that time.

However, in December 2001 after enrolling an African American student, Lee Adams, Jr.,

Bowling Green received Brumfield certification. Bowling Green thereafter requested available

public assistance through the Washington Parish School Board. Washington Parish School Board
4

denied Bowling Green’s request because of the injunction entered in this case in 1974. In

September 2003 Bowling Green moved, and was allowed, to intervene in this case, and petitioned

the court to lift or modify the injunction. 

THE DISTRICT COURT’S RULING

The district court conducted an evidentiary hearing in this matter in April 2003, and on

June 4, 2003, conducted a second hearing and ruled from the bench that Brumfield certification

did not as a matter of law modify the injunction rendered in this case in 1974, that Brumfield

certification alone was not reason to dissolve or modify the injunction, but that Brumfield

certification was a matter to be taken into consideration. The court found that it had to

“determine whether Bowling Green has demonstrated a good-faith commitment to eliminate

vestiges of past discrimination and [made] meaningful progress toward becoming a fully

integrated, non-discriminatory school with respect to faculty, extra-curricular and all other facets

of the operation.” R. 8: 4. The court concluded that because Bowling Green failed to integrate its

school from 1974 until 1999, and ultimately integrated only because its students would have

otherwise ceased to be eligible for the TOPS programs, and in view of the fact that the school did

not have and had never had any Black faculty, that Bowling Green had not met its burden for

dissolving or modifying the injunction. The district court was also concerned that Bowling Green

was a member of an athletic association in Mississippi composed of private schools that the court

concluded had been created mainly to avoid integration, rather than participating in the Louisiana

association for athletic events, comprised of both public and private schools.

ARGUMENT OF BOWLING GREEN 

Bowling Green argues before this court that the district court erred in not holding that the
3The record contains reference to only one other private school that has been Brumfield

certified that is also under an injunction and likewise denied public assistance.

5

1975 order in the Brumfield case superseded the 1974 injunction in this case since Washington

Parish was a defendant in both cases and that the injunctions in both cases enjoined Washington

Parish School District from basically the same conduct. Bowling Green further argues that since

it is now Brumfield certified that as a matter of law, the injunction against it should be dissolved

and it should be allowed to receive public assistance as do almost all other private schools in

Louisiana who have been Brumfield certified.3 Bowling Green contends that because it cannot

receive textbooks and other assistance from the State of Louisiana as do almost all other private

schools that have been Brumfield certified, that Bowling Green and its students are denied equal

protection of the law. Appellant also argues that based upon the facts before the court, the court

should have vacated the injunction because the original reasons for the injunction no longer exist.

Bowling Green maintains that the reason the Washington Parish School Board does not

want to furnish state aid to Bowling Green is the school board does not want to lose African

American students to Bowling Green and because of a belief by some of the school board

members that it is bad public policy for the State of Louisiana to give assistance to private schools

for any reason. Bowling Green reasons that the denial of public funding is discouraging African

Americans from attending Bowling Green School.

ARGUMENT OF PLAINTIFFS AND WASHINGTON PARISH SCHOOL BOARD

Plaintiffs and Washington Parish School Board argue that the Brumfield injunction and

certification procedure did not have any impact on the 1974 injunction entered in this case, that

Bowling Green and its students are not deprived of equal protection and that the court did not
6

abuse its discretion in refusing to vacate the injunction. The issues thus joined in this matter are

submitted to this Court for decision. 

DID THE BRUMFIELD DECISION MODIFY THE INJUNCTION IN THIS CASE?

As to Bowling Green’s argument that the 1974 injunction in this case was superseded or

modified by the Brumfield injunction, Bowling Green has offered no authority so holding, and this

Court has found none. There was nothing in the 1975 order that addressed any change or

modification in the 1974 order. These were two separate cases, involving some of the same

issues, but also others. Accordingly, the district court should be affirmed in its holding that the

1974 injunction was not superseded or modified by the 1975 Brumfield injunction. See generally 

United States v. United Shoe Machinery Corp., 391 U.S. 244, 248 (1968); Batts v. Tow-Motor

Forklift Co., 66 F.3d 743, 749-49 (5th Cir. 1995).

BOWLING GREEN’S EQUAL PROTECTION CLAIM

Likewise Bowling Green has offered no analogous authority to support its equal

protection argument. Bowling Green argues that its students, a few minority, but mostly white,

are being treated differently, thus unequally, than students in other previously segregated private

schools that are overwhelmingly white, with a few minority students, that have become Brumfield

certified. Factually this is an accurate statement and it is unfortunate. But, Bowling Green is

being treated differently than other private schools because Bowling Green is under a separate

injunction that other private schools are not under. That does not implicate a constitutional

deprivation. See generally City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989)

(Scalia, J., concurring); Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 775 n. 35 (1976). 

An injunction that is granted against one school to enforce constitutional rights is not void, nor
7

impacted, by the fact that other schools could have been, but were not so enjoined, just as failure

to prosecute one person does not allow another to avoid prosecution. Society has found no

perfect way to enforce all rights nor cure all wrongs. Consequently, the failure to enforce a right,

or cure a wrong, in one situation is not a defense to enforcing that right or curing that wrong in

another situation. Finding no authority to sustain Bowling Green’s argument in this regard, the

decision of the district court on the equal protection issue should be affirmed. 

BOWLING GREEN’S EVIDENCE IN SUPPORT OF MODIFICATION

The real issue in this case is whether or not Bowling Green, as it has alleged, is entitled to

modification of the 1974 injunction because it has demonstrated a good faith effort to eliminate

vestiges of past discrimination and made meaningful progress toward becoming a fully integrated

non-discriminatory school. 

Ruby Adams, mother of Lee Adams, testified on behalf of Bowling Green. She testified

that her son started school in a private school in California, that he was then enrolled in

Annunciation Catholic School in Bogalusa, but that it did not offer as many grades as did Bowling

Green. She testified that she wanted her son to continue in private school and that she sought

advice at Annunciation as to where she might place him after he finished at Annunciation. She

was recommended to Bowling Green. She went to Bowling Green and enrolled her son. She

later moved to Covington, Louisiana, but didn’t want to change schools for her son. By this time,

Lee Adams, Jr., had been placed on a scholarship. Ms. Adams testified that her son has been well

accepted at Bowling Green, that “he loves” the school, has friends, plays basketball, and makes

good grades. Although the school offered to transport Lee Adams, Jr., from Covington to

Bowling Green, the mother said she preferred to do that herself. 
8

Bowling Green elicited testimony from the mother of Lee Adams that she received a call

from a public school teacher who was one of her customers (Ms. Adams was a beautician) and

wanted to know if she was going to put her child in Bowling Green. Bowling Green sought to

draw an inference that the public school teachers were discouraging African Americans from

attending Bowling Green. 

Bowling Green offered evidence that besides Lee Adams, other protected minorities were

enrolled, including two longtime Bowling Green Korean students, and one student whose parents

were from India. Bowling Green’s principal testified that Bowling Green had accepted

applications for four African American children for admission in 2003 and 2004. 

Although Bowling Green’s original articles of incorporation did not specify that it was a

segregated school, it was in fact. In 1999, when Bowling Green was attempting to get Brumfield

certified, Bowling Green amended its articles of incorporation to specifically provide that it did

not discriminate on the basis of race, color, sex, religion, creed, national or ethnic origin. Bowling

Green prepared a brochure to advertise its position of non-discrimination, sent letters to numerous

pre-dominantly African American churches soliciting students and ran advertisements in the

newspaper advertising its non-discriminatory policy and soliciting African American students. 

Bowling Green’s school administrator, Louis Murray, a former coach at Bogalusa High

School from 1960 to 1987, testified that he had solicited some black athletes to transfer to

Bowling Green with him back in 1987. Murray won a state championship in 1969 with an

integrated football team, while he was coaching at Bogalusa. Murray testified he had talked to an

African American Melton Harris who taught with him for 10 years, about Mr. Harris becoming a

part of the faculty at Bowling Green. But, Murray testified he had not been able to attract black
9

teachers. He testified that white teachers were anxious to get out of the public school system so 

they would take a job with a private school with a pay cut. He testified, as did Gary Reed who

was with BESE and is in charge of Brumfield certification, that public school teachers in

Louisiana become eligible for retirement and can accept their retirement pay, and immediately go

back to work for the Louisiana School System at full pay. He testified that this made it difficult

for him to be able to recruit African Americans who would be receiving less pay at Bowling

Green, after retirement, than they could in the public school system, after retirement. 

Murray testified that Bowling Green had had an open policy on admissions, and had not

discriminated since 1987. Murray testified that one year after he came to Bowling Green that

they changed their athletic affiliation from the “Louisiana Independent School Association” to the

Mississippi Private School Association because there was less travel involved and because of the

academics, spelling bees, rallies, and things of that nature that were associated with that

association. 

Murray testified that he had gotten a list of the parish teachers that were retiring so he

could contact them and ask them to come for interviews, but acknowledged that he had not been

able to attract any black faculty members. Bowling Green presented a chart showing a number of

private schools in Louisiana receiving public assistance that had no African American students and

no African American faculty. Bowling Green identified a few private schools that are

predominantly African American that have difficulties attracting white students. 

Bowling Green offered testimony from Mr. Jerry Rayborn who moved to Bowling Green

in 1983 and has been president of the school board on three different occasions. He testified that

he moved to Franklinton because his son, while a sophomore in high school in New Orleans, came
10

home with marijuana. He noted that Bowling Green had had a drop in student enrollment and

that they needed students and they had not turned down a black student “since 1983.” R. Supp.:

27. He stated “[o]ur entire membership is striving to increase our enrollment and we feel like the

Black community is a good place to do that, if we can make them feel comfortable there.” Id. at

28. Clayton Richardson, the current board chairman, testified that Bowling Green is currently

recruiting students of all races. He confirmed Murray’s testimony about the difficulty of

attracting African American teachers because of the pay differential. 

EVIDENCE OF PLAINTIFFS AND WASHINGTON PARISH SCHOOL BOARD

 The plaintiffs called Mr. Freddie Jefferson, a member of the Washington Parish School

Board. He taught in the public school system and testified that in his opinion Bowling Green was

created for the purpose of thwarting integration. He was critical of the school’s efforts to attract

minorities, saying that “They put on a somewhat full press in the last couple of years, supposedly

to recruit minorities, but [in] a very, very relaxed effort. . .” R. Supp.: 80. On cross examination,

he testified “I’m opposed to public money being used for private sources.” Id. at 85. Whether to

provide public assistance to students in private schools is a public policy decision for the

Louisiana Legislature, so long as it meets constitutional criteria. That public policy question is

not a relevant issue for this court nor the parties. 

Mr. Jefferson acknowledged that the letter received by his church from Bowling Green

soliciting African American students was thrown away. He said that no one from Bowling Green

followed up and tried to speak to the church. He said his church wanted to wait and see what

was going to happen at Bowling Green. 

Under questioning by the court, Mr. Jefferson said if Bowling Green really wanted to
11

attract African American students that the African American alumni groups from the various

universities and colleges would be a fertile ground for Bowling Green to solicit students. Mr.

Jefferson’s pastor, Rev. Bruce Brown, is also a member of the Washington Parish School Board. 

It was stipulated that if Rev. Brown had been called to the stand, he would have testified

substantially the same as Mr. Jefferson testified.

PROGRESS, BUT IS IT ENOUGH?

An indication of how things have changed, and progress has been made, is the fact that in

1975, the issue before the court was whether a statute passed by the Louisiana Legislature was

being administered in an unconstitutional manner, that is, that state funds were being

unconstitutionally funneled to racially segregated private schools. The three judge panel in

Brumfield in 1975 found the Louisiana statutes as administered unconstitutional. Twenty-four

years later, in 1999, it was another law of the Louisiana Legislature that brought this matter back

to court. This time the Louisiana Legislature passed a law prohibiting students who graduate

from previously segregated private high schools from receiving state tuition scholarships, unless

those schools had stopped practicing segregation, stopped discriminating, and become Brumfield

certified.

In a perfect society all of the vestiges of discrimination and segregation would disappear

and all people would be treated equally without regard to race, color of skin, or ethnicity. We do

not live in a perfect world. Therefore, we must deal with the facts as presented. This Court is

committed to enforcing Brown v. Board of Education, 347 U.S. 483 (1954).

Bowling Green argues that it is making a good faith effort to integrate the school, but that

it cannot force African Americans to join its faculty or enroll in its school. Bowling Green
12

contends that to deprive it of the same public assistance received by other private schools makes it

more difficult for Bowling Green to recruit minority students and faculty. In 1999 Bowling Green

enrolled its first African American student. According to the testimony before the court, if all

students attended who had enrolled for the beginning of the 2003 school year, Bowling Green

would have 8 students enrolled who are protected minorities (5 African Americans, 2 Koreans,

and 1 Indian). That is progress.

The plaintiffs and Washington Parish School Board argue that Bowling Green made no

efforts to integrate for 25 years and that Bowling Green only integrated after it was forced to do

so or have its students lose their eligibility for college scholarships. They point out that no black

student attended Bowling Green until 1999. Bowling Green has yet to employ a faculty member

who is black. Plaintiffs question the extent and sincerity of the efforts made by Bowling Green to

become an integrated school. Whether the skepticism of the Plaintiffs and the School Board is

warranted, or antipathy toward the efforts of intervenors to integrate, time will tell. 

FACT FINDING AND EQUITABLE RELIEF

The district court expressed grave concern that Bowling Green did not have a single

African American student until 1999, and that this did not happen until Bowling Green was forced

to do so or lose scholarship opportunities for its graduates. The court likewise was concerned

that Bowling Green had attracted no African American faculty. The trial court concluded that at

this point Bowling Green has not demonstrated a good faith commitment to eliminating the

vestiges of past discrimination and has not made meaningful progress toward becoming a nondiscriminatory school. 

We note Bowling Green’s argument that it cannot compel African Americans to join its
13

faculty or enroll as students. It could be that an African American teacher might be reluctant to

teach in a private academy, previously all white and created to preserve segregation, for less

money than a teacher can make in the public school sector. Nevertheless, Bowling Green must

make a good faith effort to attract African American faculty. Bowling Green offered evidence

that its decision to join the Mississippi Athletic Association was made for non-discriminatory

reasons, travel distances for ball games, and other programs associated with that Association. 

The trial court was skeptical on this issue and the record is not well developed as to that question.

The trial court ordered “the parties, plaintiff, defendant, and intervenor [to] meet through

its representatives and give the Court a [written] report within six months from [June 4, 2003] on

what efforts the parties are making to achieve compliance with the purposes of the original

injunction.” R. 8: 51. The court noted that this would require “some creative lawyering, some

creative work by the community, by the educators, by the people who I think are most affected by

what we are doing here.” Id. at 51. The court also noted that Bowling Green “cannot do it in a

vacuum, and it cannot do it alone. I am not asking the community or parties here to forgive

Bowling Green for its history or even its current practices. But I am requiring the parties to work

with them.” Id. at 52. The court said “there has to be a give and take. There has to be

compromise. There has to be a change of attitude. . . . The community has to be involved in that

process.” Id. at 52. The court likewise recognized “necessary concerns for the important values

of local control of public school systems . . . [and] that if a school or school system is operating in

compliance for a reasonable period of time then the Court should look either to dissolve or

modify the desegregation decree.” Id. at 45-46. The court said “I hope my opinion does not

cause the black families who have children at that school or the school itself, Bowling Green, to
14

stop trying to. . . eliminate discrimination.” Id. at 50. The court noted that it envisioned the

possibility that after six months “[p]erhaps next year, perhaps sooner, perhaps later this Court will

receive evidence to allay the concerns that I have expressed here, that this school, that that

community that it is located in are working to achieve the purpose of the injunction” and that the

injunction might be modified. Id. at 50-51.

Before the injunction is dissolved or modified, Bowling Green is required to demonstrate

that its efforts are not just to get its graduates qualified for the TOPS program. Bowling Green

cannot change the past, but it must do what it can, in good faith, to eliminate the past vestiges of

discrimination. Bowling Green must demonstrate over a reasonable period of time, a good faith

commitment to eliminating the vestiges of past discrimination and to make meaningful progress

toward becoming a fully integrated non-discriminatory school with respect to all facets of its

operation. The district court has indicated that once Bowling Green has made such a

demonstration, it will be entitled to relief. The district court also specifically noted that Bowling

Green cannot do this by itself. 

Factual findings of the district court are to be reviewed under a clearly erroneous standard. 

Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 226 (5th Cir. 1983). Whether to grant or modify

an injunction is a question of equitable relief and is reviewed by this court for abuse of discretion. 

Valley v. Rapides Parish Sch. Bd., 702 F.2d 1221, 1225 (5th Cir. 1983), cert. denied, 464 U.S.

914 (1983). Bowling Green has the burden of proof. Based on the record before us, and

considering the applicable standards of review, we find no error. 
15

Accordingly, the decision below is

AFFIRMED.