395 U.S. 950 (1969)

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U.S. Supreme Court

SELLERS v. LAIRD , 395 U.S. 950 (1969)

395 U.S. 950

Cleveland L. SELLERS, Jr., petitioner,
Melvin R. LAIRD, Secretary of Defense, et al.
No. 979, Misc.

Supreme Court of the United States

June 9, 1969

Charles Morgan, Jr., Reber F. Boult, Jr., Howard Moore, Jr., Morris Brown, Melvin L. Wulf, Martin Garbus, and Eleanor Holmes Norton, for petitioner.

Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander and Robert V. Zener, for respondents.

Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.


Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice MARSHALL join, dissenting.

Petitioner is a Negro who was classified I-A by his local Selective Service Board in South Carolina, before his place of induction was transferred to his current residence in Georgia. Prior to receiving his order to report for induction, he filed suit in the District Court for the Northern District of Georgia to enjoin his induction on the ground that systematic exclusion of Negroes from local and appeals boards in South Carolina and Georgia violates the Constitution of the United States as well as the Military Selective Service Act of 19671 and renders them powerless to induct him into the Armed Forces. According to his uncontested allegations, South Carolina is a State with 161 board members, only one of whom is Negro. Thus, from a State in which 34.8% of the population is Negro, only 0.6% participate in the administration of the Selective Service. Moreover, in Georgia, where 28.5% of the population is Negro, members of the Negro race constitute only 0.2% of the 509 board members. Despite these statistics of exclu-

Page 395 U.S. 950 , 951

sion,2 and despite petitioner's assertion that his classification was racially motivated, the District Court refused to enjoin his induction.

Following that denial, petitioner noted an appeal. In the meantime, however, he was ordered to report for induction. After unsuccessful attempts to stay prosecution, and over his defense that he had been inducted by a Selective Service System from which Negroes had been studiously excluded, he was convicted of violating 50 U.S.C.App. 462(a) and sentenced to five years in prison.

It was only after his criminal conviction that the Court of Appeals decided his appeal from the District Court denial of preliminary injunction. Reluctant to treat that civil appeal as moot, it reached the merits and decided that the exclusion of Negroes from local draft boards does not deprive them of jurisdiction to induct Negroes into the Armed Forces. [Footnote 3] Petitioner come to [395 U.S. 950 , 952]

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