Correspondence from Lani Guinier to Prof. Ralph Cassimere (University of New Orleans)

    IN  T H E

(Erntrt of %  Inttefc States
October Term, 1955

No.

THE STATE OF FLORIDA, ex rel.
VIRGIL D. HAWKINS,

Petitioner,
v.

THE BOARD OF CONTROL, et at.

PETITION FOR WRIT OF CERTIORARI AND, IN THE 
ALTERNATIVE, MOTION FOR LEAVE TO FILE AND 
PETITION FOR WRIT OF COMMON LAW CERTIORARI 
AND/OR WRIT OF MANDAMUS TO THE SUPREME 

COURT OF THE STATE OF FLORIDA

R obert L. Carter ,
H orace H il l ,
T htjrgood M a r sh a ll ,

Counsel for Petitioner.

E lwood H . C h is o l m , 
W il l ia m  L. T aylor,

of Counsel.

Supreme P rinting Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3 - 2320



I N D E X

Motion for Leave to File Petition............................. 1
Petition for Writ of Certiorari................................  3

Opinions Below..................................................  4
Jurisdiction.......................................................... 5
Questions Presented .......................................... 7
Statement ...........................................................  8
Reasons for Allowance of the W ri t ....... .............  10

Conclusion............................................    15
Appendix A—Opinion and Order of the Supreme

Court of Florida ..............................   17
Appendix B—Motion for Extension of T im e.........  45

Table o f Cases Cited

Adkins v. E. I. DuPont de Nemours & Co., 335 U. S.
331 .......................................................................... 7

Board of Supervisors v. Tureaud, 225 F. 2d 434 (CA 
5th decided Aug. 23, 1955, 226 F. 2d 714 (decided 
October 26, 1955), — F. 2d — (decided Jan. 6,
1956)........................................................................  12

Booker v. Memphis State College, Civil No. 2656 
(W. D. Tenn. 1955) unreported .............................  13

Cassell v. Texas, 339 U. S. 282 ................................  6
City National Bank v. Hunter, 152 U. S. 512............. 7
Constantine v. Southwestern Louisiana Institute, 120 

F. Supp. 417 (W. D. La. 1954) ............................. 11
DeBeers Consolidated Mines v. United States, 325 

U. S. 212 ................................................................. 6

PAGE



11

Detroit Housing Commission v. Lewis, 226 F. 2d 180 
(CA 6th 1955) ........................................................  13

Ex Parte Bradley, 7 Wall. 364 ....... .........................  7
Ex Parte Kawato, 317 U. S. 6 9 ................................  6
Ex Parte Republic of Peru, 318 U. S. 578 ..............  6, 7
Far Eastern Conference v. United States, 342 U. S.

7 0 ........................................................... ................. 6, 7
Frazier v. Board of Trustees of University of North 

Carolina, 134 F. Supp. 589 (M. D. N. C. 1955)__  12
Grant v. Taylor, Civil Action No. 6404 (W. D. Okla.

1955) unreported .............................................  12
Gray v. Board of Trustees of University of Tennes­

see, 342 U. S, 517 ..................................................  11
Holmes v. Jennison, 14 Peters 614, Appx I I .........  6
House v. Mayo, 324 U. S. 4 2 ......................................  7
In re 620 Church Street Building Corp., 299 U. S.

24 .........................................    7
La Crosse Telephone Corp. v. Wisconsin Employ­

ment Relations Board, 336 U. S. 1 8 ...................... 5
Lucy v. Adams, — U. S. —, 100 L. ed. (Advance 

P- 17) ..............................................    10
McCargo v. Chapman, 20 How. 555 .........................  7
McClellan v. Carland, 217 U. S. 268 .........................  7
McCullough v. Cosgrove, 309 U. S. 634 .................... 6
McKissick v. Carmichael, 187 F. 2d 949 (CA 4th

1951) cert, denied, 341 U. S. 591 .......................  10
McLaurin v. Oklahoma State Regents, 339 U. S.

637 .........................................................................   10,14
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 __  14
Mitchell v. Board of Regents of University of Mary­

land, Docket No. 16, Folio 126 (Baltimore City 
Court 1950) unreported ............................    11

PAGE



I l l

Parker v. Illinois, 333 U. 8. 570 ............................. 5
Parker v. University of Delaware, 75 A. 2d 225 (Del.

1950)........................................................................  10,11
Pope v. Atlantic Coast Line RR Co., 345 U. S. 379 .. 5
Re Metropolitan Trust Co., 218 U. S. 312................  7
Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62 5
School Segregation Cases (Brown v. Board of Edu­

cation of Topeka), 347 U. S. 4830, 349 U. S. 294
9,10,11,12,13,14

Sibbald v. United States, 12 Peters 488 ..................  6
Sipuel v. Board of Regents, 332 U. S. 631 ................. 10,11
Spiller v. Atchison T. & S. F. R. Co., 253 U. S. 117 7
Swanson v. University of Virginia, Civil Action No.

30 (W. D. Va. 1950) unreported...........................  11
Sweatt v. Painter, 339 U. S. 629 ...........................10,11,14
Troullier v. Proctor, Civil Action No. 3842 (E. D.

Okla. 1955) unreported ..................................  12
Union Pacific R. Co. v. Weld Co., 247 U. S. 282 . . . .  7
United States Alkali Export Association v. United 

States, 325 U. S. 126............................................... 6
Wells v. Dyson, Civil Action No. 4679 (E. D. La.

1955) unreported ......................................................  12
White v. Smith, Civil Action No. 1616 (W. D. Tex.

1955) unreported........................................................  12
Whitmore v. Stillwell, — F. 2d — (CA 5th decided

November 23, 1955) ................................................... 12
Wichita Falls Junior College Dist. v. Battle, 204 F.

2d 632 (CA 5th 1953), cert, denied, 347 U. S. 974 .. 11
Wilson v. Board of Supervisors, 92 F. Supp. 986

(E. D. La. 1950), aff’d, 340 U. S. 909 .................... 10
Wilson v. City of Paducah, 100 F. Supp. 116 (W. D.

Ky. 1951) ................................................................... 10

PAGE



IV

Statutes Cited
PAGE

Title 28, United States Code:
Section 1257(3) ..................................................  3, 5, 6
Section 1651(a) ................................................... 3,5,6

Constitution of the United States:
Fourteenth Amendment ....................................  4,14

Other A uthorities Cited

Moore, Commentary on the U. S. Judicial Code 598 
(1949) ..................................................................... 6

Robertson and Kirkham, Jurisdiction of the Supreme 
Court § 12 (Wolfson and Kurland ed. 1951) . . . .  6

Ferris, Extraordinary Legal Remedies, § 162 (1926) 6
Evasion of Supreme Court Mandate in Cases Re­

manded to State Courts Since 1941, 67 Harv. L.
Rev. 1251 (1954) ....................................................  6



IN  THE

&npxmj> Qkmrt of %  Ittttefli States
October Term, 1955 

No.

--------------------o---------- ---------
T h e  S tate of F lorida , ex  r e l . V ir g il  D . H a w k in s ,

Petitioner,
v.

T h e  B oard of C ontrol , et al. 
------------------------- o-------------------

MOTION FOR LEAVE TO FILE PETITION FOR WRIT 
OF CERTIORARI AND/OR PETITION FOR 

WRIT OF MANDAMUS

Now comes the petitioner and respectfully moves this 
Court for leave to file the annexed petition for writ of cer­
tiorari under Title 28, United States Code, Section 1651(a) 
directed to the Supreme Court of the State of Florida to 
review an order and judgment of that court entered on 
October 19, 1955 and more particularly described in the 
petition, and for such other and further relief as may be 
just and proper.

In the alternative, petitioner moves for leave to file the 
petition for writ of mandamus annexed hereto; and fur­
ther moves that an order and rule be entered and issued 
directing the Supreme Court of the State of Florida and the 
Honorable E. Harris Drew, Chief Justice of the Supreme 
Court of the State of Florida and the Honorable T. Frank 
Hobson, Campbell Thornal, Glenn Terrell, Elwyn Thomas, 
Stephen C. 0 ’Connell and B. K. Roberts, Associate Justices 
of the Supreme Court of the State of Florida to show cause 
why a writ of mandamus should not be issued against them



2

in accordance with the prayer of said petition and why 
your petitioner should not have such other and further 
relief in the premises as may be just and meet.

Further petitioner states that these motions and peti­
tions annexed hereto are made as alternatives to the peti­
tion for writ of certiorari also annexed hereto which 
invokes the Court’s jurisdiction under Title 28, United 
States Code, Section 1257(3), and are made in the event the 
Court finds jurisdiction therein lacking and refuses to grant 
the petition for writ of certiorari filed pursuant to that 
statutory authority.

R obert L. Carter,
T htjrgood M a rsh a ll ,

107 West 43rd Street,
New York 36, New York.

H orace, H il l ,
610' Second Avenue,

Daytona Beach, Fla.,
Counsel for Petitioner.

E lwood H . C h is o l m , 
W il l ia m  L. T aylor,

of Counsel.



3

IN THE

Sutprem* (Emtrl of %  llnltvh
October Term, 1955 

No.

o
T h e  S tate oe F lorida, ex  e e l . V ir g il  D . H a w k in s ,

Petitioner,
v.

T h e  B oard of C ontrol , et al. 
-------------------o-------------------

PETITION FOR WRIT OF CERTIORARI AND, IN THE 
ALTERNATIVE, PETITION FOR WRIT OF COMMON 
LAW CERTIORARI, AND/OR PETITION FOR WRIT 

OF MANDAMUS TO THE SUPREME COURT 
OF THE STATE OF FLORIDA

Petitioner prays that pursuant to Title 28, United States 
Code, Section 1257(3) a writ of certiorari issue to review 
the judgment of the Supreme Court of Florida entered in 
the above-entitled cause on October 19, 1955.

In the alternative, petitioner prays that pursuant to 
Title 28, United States Code, Section 1651(a) a writ of 
certiorari issue to review the judgment entered in the 
aforesaid cause under which petitioner was refused an 
order requiring Ms immediate admission to the University 
of Florida subject only to the same rules and conditions 
applicable to all other persons, and was denied such relief 
pending the taking of evidence by an officer of the court 
below to determine the time when, and under what circum­
stances, petitioner’s unquestioned right of admission to the 
University of Florida should and would be vindicated.



4

Petitioner prays as a further alternative that a writ of 
mandamus issue to the Supreme Court of Florida and to 
the Honorable E. Harris Drew, Chief Justice of that Court 
and the Honorable T. Frank Hobson, Campbell Thornal, 
Glenn Terrell, Elwyn Thomas, Stephen C. O’Connell and 
B. K. Roberts, Associate Justices of the Supreme Court of 
Florida, directing and requiring the said Honorable E. 
Harris Drew, T. Frank Hobson, Campbell Thornal, Glenn 
Terrell, Elwyn Thomas, Stephen C. O’Connell and B. K. 
Roberts to enter an order requiring petitioner’s immediate 
admission to the University of Florida law school in accord 
with petitioner’s right to equal educational opportunities 
as secured by the Fourteenth Amendment to the Consti­
tution of the United States.

O pinions B elow

The first opinion was entered in this case on August 1, 
1950 and is reported at 47 So. 2d 608. A second opinion 
was entered on June 15, 1951 and is reported at 53 So. 
2d 116. Petition for writ of certiorari was denied by this 
Court, 342 U. S. 877. The third opinion of the Supreme 
Court of the State of Florida was entered on August 1, 
1952, and is reported at 67 So. 2d 162. When review of 
that judgment was sought here, this Court granted the 
petition for writ of certiorari, vacated the judgment and 
remanded the cause “ for consideration in the light of the 
Segregation Cases decided May 17, 1954 . . . and conditions 
that now prevail” , 347 U. S. 971. Pursuant to the mandate 
of this Court, the cause was returned to the Supreme Court 
of Florida and on October 19, 1955, that court entered the 
instant judgment which is reported at 83 So. 2d 20 and 
review of which is herein sought.



5

Jurisdiction

The judgment of the Supreme Court of the State of 
Florida was entered on October 19,1955, and a copy thereof 
is appended to this petition in Appendix A at pages 
17-44. Jurisdiction of this Court is invoked under 
Title 28, United States Code, Section 1257(3). Petitioner 
submits that the judgment below, while on its face not a 
final disposition of all the issues, subjects him to irrepar­
able injury by refusing to recognize his constitutional claim 
to equal educational opportunities as being immediate and 
present. Petitioner has already lost 6 years. Presumably 
he could now have finished his course and entered upon the 
practice of law had his constitutional rights been properly 
and seasonably settled by the court below. No matter what 
the ultimate decision of Florida may be, petitioner will 
have and is suffering irremedial and irreparable injury. 
The decision rendered, disposes of petitioner’s rights under 
the Federal Constitution under a formula contrary to the 
decisions of this Court and adverse to petitioner’s inter­
ests. Moreover, further delay in granting him immediate 
redress could well effectively deprive petitioner completely 
of his constitutional rights. As such the judgment below 
is properly reviewable under Title 28, United States Code, 
Section 1257(3). See Pope v. A tlantic Coast Line R. R. Co., 
345 U. S. 379, 382, 383; La Crosse Telephone Corp. v. Wis­
consin Employment Relations Roar cl, 336 U. S. 18; Parker 
v. Illinois, 333 U. S. 570; Republic Natural Gas Co. v. Okla­
homa, 334 U. S. 62.

Despite the considerations hereinabove cited, this Court 
may find that it is without jurisdiction to review the deci­
sion below under Title 28, United States Code, Section 
1257(3). In that eventuality jurisdiction is invoked under 
Title 28, United States Code, Section 1651(a) to aid the 
Court in the exercise of its appellate jurisdiction over state 
coui'ts granted under Title 28, United States Code, Section 
1257(3).



6

If this Court has no jurisdiction under Title 28, United 
States Code, Section 1257(3), petitioner seeks relief under 
Title 28, United States Code, Section 1651(a) either by 
issuance from this Court of a writ of common law certiorari 
or by writ of mandamus because no other remedy is avail­
able by which he may secure redress of his right to equal 
protection of the laws.

Where this Court would have jurisdiction under Title 
28, United States Code, Section 1257(3) but for the fact 
that the judgment appealed from is not final, this Court 
has power to issue an extraordinary writ authorized by 
Title 28, United States Code, Section 1651(a). Ex Parte 
Republic of Peru, 318 U. S. 578. Writs may be issued to 
state courts as well as to federal courts. Sibbald v. United 
States, 12 Peters 488, 493; Holmes v. Jevmison, 14 Peters 
614, 632, Appx. I I ; cf. Cassell v. Texas, 339 U. S. 282, 304 
(dissenting opinion). See Moore, Commentary on the 
U. S. Judicial Code 598 (1949); Robertson and Kirkham, 
Jurisdiction of the Supreme Court §12 (Wolfson and 
Kurland ed. 1951); Ferris, Extraordinary Legal Remedies, 
§ 162 (1926); Note, Evasion of Supreme Court Mandate 
in  Cases Remanded to State Courts Since 1941, 67 Harv. 
L. Rev. 1251, 1259 (1954).

This Court, in the exercise of its sound discretion, has 
issued extraordinary writs of mandamus or common law 
certiorari: (1) where the issue involved the propriety of 
a lower court’s exercise of equity jurisdiction, United 
States Alhalai Exp. Assoc, v. United, States, 325 U. S. 196 
(certiorari); Ex Parte Kawato, 317 U. S. 69 (mandamus); 
(2) where a petitioner would have suffered an irremediable 
loss of rights if compelled to await a final judgment before 
seeking review, DeBeers Consolidated Mines v. United 
States, 325 U. S. 212 (certiorari); McCullough v. Cos- 
grave, 309 U. S. 634; Ex Parte Republic of Peru, supra 
(mandamus); (3) where issues of public importance were 
involved, Far Eastern Conference v. United States, 342



7

U. S. 570 (certiorari); Ex Parte Republic of Peru, supra 
(mandamus); and (4) as a means of “ furthering justice 
in other kindred ways”, Re 620 Church Street Building 
Corp., 299 U. 8.24, 26 (certiorari). See also Spiller v. Atchi­
son T d  SFR Co., 253 U. S. 117; McClellan v. Carland, 217 
U. S. 268; Adkins v. E. I. DuPont de Nemours d  Co., 335 
U. S. 331; Union Pacific R. Co. v. Weld County, 247 U. S. 
282; House v. Mayo, 324 U. S. 42 (certiorari); McCargo 
v. Chapman, 20 How 555, 557; Ex Parte Bradley, 7 Wall. 
364, 376 (mandamus). The extraordinary writ of man­
damus also has been issued to secure compliance with a 
prior mandate of this Court, City National Bank v. Hunter, 
152 U. S. 512; Re Metropolitan Trust Co., 218 IT. 8. 312.

As noted, infra, in “ Reasons for Allowance of the W rit”, 
all of these factors justifying the issuance of the extra­
ordinary writs of mandamus or common law certiorari 
obtain in the instant case.

Q uestions Presented

Is petitioner entitled to an order requiring his imme­
diate admission to the University of Florida Law School 
subject only to the same terms and conditions as are ap­
plicable to other persons and without distinction or dis­
crimination based upon his race or his color?

May the court below defer petitioner’s admission to 
the University of Florida until it has received evidence 
from a master as to law and fact designed to guide the 
court in determining when, in the public’s interest, peti­
tioner’s admission should be ordered and the terms and 
conditions under which the same should be allowed?



8

Statem ent

This cause originated in April, 1949. Petitioner was one 
of four applicants who sought admission to the profes­
sional and graduate schools of the University of Florida. 
Petitioner seeks entrance to the school of law. On May 
13, 1949, petitioner was advised that his admission to the 
University of Florida was prohibited because he was a 
Negro, and the Board of Control offered to pay his tuition 
to an institution of his choice outside the state. Petitions 
for alternative writs of mandamus were filed in the Su­
preme Court of the State of Florida and were granted 
(E. 8). On August 1,1950, the court below entered its first 
judgment and ruled that the Board of Control, in ordering 
the establishment of schools of law, pharmacy, graduate 
courses in agriculture and chemical engineering at Florida 
A. and M. College for Negroes and in offering to provide 
out-of-state scholarship aid to petitioner pending estab­
lishment of these segregated educational facilities, had 
fully satisfied the state’s constitutional obligation to fur­
nish equal educational opportunities to petitioner and 
other Negroes similarly situated. The court refused to 
enter a final order but retained jurisdiction in order to 
permit the parties to seek further relief at some later 
date (E. 48). On May 16, 1951, petitioner filed a motion for 
peremptory writ of mandamus (E. 67). On June 15, 1951 
the court below denied the peremptory writ (E. 68), and 
petitioner filed a petition for writ of certiorari in this 
Court. This Court refused to grant the petition for writ 
of certiorari on the grounds that no final judgment had 
been entered, 342 U. S. 877.

On August 1, 1952, the Supreme Court of Florida en­
tered final judgment in this case denying petitioner’s 
motion for peremptory writ, quashing the alternative writs 
of mandamus previously issued and dismissing the cause 
(E. 86). When the cause was brought here a second time,



9

this Court granted the petition for writ of certiorari, 
vacated the judgment below, and remanded the cause for 
consideration in the light of the School Segregation Cases 
(Brown v. Board of Education), 347 U. S. 483.

On July 31,1954, the Supreme Court of Florida ordered 
the petitioner to amend his petition so as to place before 
that court the issues raised by the original petition in the 
light of the School Segregation Cases, decided May 17,1954, 
and conditions that now prevail (R. 95). On September 30, 
1954, an amended petition for writ of mandamus was filed 
in the court below (R. 133), and thereafter, an amended 
answer was filed by respondents (R. 97)—all pursuant to 
the court’s instruction. The cause was argued before the 
Supreme Court of Florida in January, 1955, and on October 
19, 1955, the present judgment was entered (R. 104).

Under this most recent decision of the court below, the 
esclusion of petitioner from the University of Florida 
solely because of his race was declared unconstitutional, 
and a master was appointed to take evidence pursuant to 
which the court below will determine when and under what 
circumstances petitioner and other Negroes may be ad­
mitted to the University of Florida in the indeterminate 
future. The master was given four months to take evi­
dence and make his report. To petitioner’s knowledge, 
no steps have been taken as of this date—some 90 days 
subsequent to the decision of the court below to gather the 
evidence and make the report authorized by the court’s 
decision. In fact, the state has just made application to 
extend until July 2, 1956, the time when that report should 
be made. A copy of their application served on counsel 
for petitioner on January 12 past is set forth and appended 
hereto as Appendix B at pages 45-47.

Thus, the undisputed facts are that as of now, almost 
7 years have elapsed since petitioner first applied to the 
University of Florida, and he is still awaiting a decision 
ordering his admission.



10

R easons for A llow ance o f the W rit

1. Petitioner is entitled to an order requiring his imme­
diate admission to the University of Florida law school. 
Sipuel v. Board of Regents, 332 U. S. 641; Sweatt y. Painter, 
339 U. S. 629; MeLaurin v. Oklahoma State Regents, 339 
U. 8. 637; Lucy v. Adams, — U. 8. -—, 100 L, ed. (Adv. 
p. 17). The decision below to postpone immediate relief 
and to determine at some subsequent time when and in 
what form petitioner’s right to relief will be granted, based 
upon evidence to be adduced by an officer of the court, 
constitutes in effect a denial of petitioner’s right. We 
submit that the formula laid down in Brown v. Board of 
Education, 349 U. S. 294, for ending segregation in the 
public schools is not applicable to state junior colleges, 
colleges, graduate and professional schools. The May 31, 
1955, formula was designed to give public officials, who had 
to undertake necessary administrative planning, such as 
redistricting, reassignment of pupils, reorganization of 
schools and staff, time essential to free a public school 
system of color discrimination in compliance with the 
law. The removal of racial barriers with respect to ad­
mission to state junior colleges, colleges, graduate or 
professional schools involves no such administrative prob­
lems and, indeed no administrative considerations of any 
complexity whatsoever. These schools merely have to adopt 
and enforce rules and regulations pursuant to which quali­
fied Negro applicants are admitted on the same basis as 
other persons. Most of the institutions in this category, 
which have removed racial barriers pursuant to court deci­
sions, have removed these barriers at once. See Sweatt v. 
Painter, supra; MeLaurin v. Oklahoma State Regents, 
supra; McKissick v. Carmichael, 187 F. 2d 949 (CA 4th 
1951), cert, denied, 341 U. S. 591; Wilson v. Board of 
Supervisors, 92 F. Supp. 986 (ED La. 1950), aff’d, 340 
U. S. 909; Parker v. University of Delaware, 75 A. 2d 225



11

(Del. 1950); Wichita Falls Junior College Dist. v. Battle, 
204 F. 2d 632 (CA 5th 1953), cert, denied, 347 IT. S. 974; 
Constantine v. Southwestern Louisiana Institute, 120 F. 
Supp. 417 (WD La. 1954); Wilson v. City of Paducah, 100 
F. Supp. 116 (WD Ky. 1951); Mitchell v. Board of Regents 
of University of Maryland, Docket #16, Folio 126 (Balti­
more City Court 1950) unreported; Swanson v. University 
of Virginia, Civil Action No. 30 (WD Va. 1950) unreported; 
and see Gray v. Board of Trustees of University of Tennes­
see, 342 U. S. 517. It should be pointed out, parenthetically 
at least, that in the cases cited the courts had not aban­
doned the “ separate but equal” doctrine. Even so, relief was 
considered warranted immediately when its need was dem­
onstrated. The considerations cited by the court below 
for postponing immediate relief in the removal of segrega­
tion concern themselves, in the main, not with administra­
tive difficulties hut with questions of supposed adverse 
public sentiment which, as this Court pointed out in its 
May 31 order, could not be the basis for a denial of constitu­
tional rights.

2. This case raises a constitutional question of great 
public importance. Prior to decision by this Court on 
May 31, 1955, in the School Segregation Cases, 349 U. S. 
294, the law was apparently clear that in respect to state 
junior college, college, graduate and professional educa­
tion a showing that equal educational opportunities had 
been denied on the basis of race or color entitled the appli­
cant to relief in the form of a court order compelling his 
admission to the state junior college, college, graduate or 
professional school instanter. See Sweatt v. Painter and 
cases listed, supra. It was considered settled constitutional 
doctrine that the right to equal educational opportunities is 
personal and present, Sipuel v. Board of Regents, supra, 
and that at the college, graduate and professional school 
level these rights, when established, would be vindicated 
immediately.



12

After decision by this Court in the School Segrega­
tion Cases, 349 U. S. 294, question, whether the formula 
there set forth, which permitted the grant of a reasonable 
time to school officials to comply with the constitutional 
proscription against segregation in public education, was 
applicable to areas other than elementary and secondary 
schools, has caused some confusion and no little concern.

In Tureaud v. Board of Supervisors, there was contro­
versy and confusion in the Court of Appeals for the Fifth 
Circuit as to whether that formula was applicable in a 
case involving a Negro’s right of admission at the college 
level of the University of Louisiana. Two conflicting 
opinions resulted, and the controversy had to be referred 
to the court en banc and a third opinion rendered before 
the matter could be finally settled in terms of a grant of 
immediate relief in accord with the decision of the trial 
court. See 225 F. 2d 434 (decided August 23, 1955) 226 
F. 2d 714 (decided October 26, 1955), and — F. 2d — 
(decided January 6, 1956).1

In Frasier v. Board of Trustees of University of North 
Carolina, 134 F. Supp. 589 (MD NC 1955) immediate relief 
was granted. This was true in Whitmore v. Stillwell, 
— F. 2d — (CA 5th decided November 23, 1955); 
White v. Smith, Civil Action No. 1616 (WD Tex. 1955) 
unreported; Wells v. Dyson, Civil Action No. 4679 (ED 
La. 1955) unreported; Trouiller v. Proctor, Civil Action 
No. 3842 (ED Okla. 1955) unreported; Grant v. Taylor, 
Civil Action No. 6404 (WD Okla. 1955) unreported.

In Lucy v. Adams, supra, this Court vacated a super­
sedeas so that immediate relief could be obtained by the 
Negro applicants so that they could receive the benefits of

1 There were, of course, other points of difference in this case, 
but one of the basic disputes was whether the criteria set down by 
this Court on May 31, 1955, should have been applied by the trial 
court.



13

an equal education, pending disposition of the procedural 
and substantive considerations by the appellate courts.

On the other hand in Booker v. Memphis State College 
(Civil No. 2656, W. D. Tenn. 1955), not yet reported and 
now pending on appeal, the court took the position that 
six years was a reasonable time to allow for the institution 
to end its discriminatory practices'—such elimination to 
begin at the graduate level and end at the first year level 
six years hence—the level at which application had been 
made.

In the instant case, after six years of litigation and 
acknowledgment by the court below that the exclusion from 
the University based upon race is unconstitutional, the 
court felt it had authority under the decisions of this Court 
to further defer petitioner’s admission to the University 
and to approve a plan which would allow the University a 
period of time to eliminate its discriminatory practices.

In Detroit Housing Commission v. Lewis, 226 F. 2d 180 
(CA 6th 1955) the Court of Appeals for the Sixth Circuit 
felt the formula of gradual compliance was applicable to 
public housing.

These two approaches are at war and cannot be recon­
ciled. Indeed, under the latter approach, the decision of 
May 17, 1954, in the School Segregation Cases which broke 
with the “ separate but equal” doctrine in the field of public 
education means that Negro applicants at the college and 
graduate levels are now entitled to less protection than they 
were before “ separate but equal” was abandoned. We can­
not believe this to be the Court’s intention, and clarifica­
tion and settlement of this question is of primary im­
portance.

3. This Court must review this case in order to pre­
vent a gross miscarriage of justice. When the Supreme 
Court of Florida handed down its first decision in August



14

1950, in which, it held out-of-state scholarship aid and a 
promise to establish separate schools for Negroes to be a 
satisfaction of the state’s obligation under the Fourteenth 
Amendment, this Court had long since condemned the out- 
of-state scholarship device as a failure to comply with the 
requirements of the Fourteenth Amendment, Missouri ex 
rel. Gaines v. Canada, 305 U. S. 337, and had established 
standards in Sweatt v. Painter, supra; McLaurin v. Okla­
homa State Regents, supra, which, if applied, would have 
resulted in petitioner’s admission to the University of 
Florida. Two years later the court below dismissed the 
petition for writ of mandamus, still clinging to the notion 
that segregation at the graduate and professional school 
level was permissible. Now, although it is recognized that 
the School Segregation Cases (Brown v. Board of Educa­
tion), 347 U. S. 483, have broken with the “ separate but 
equal” doctrine, petitioner’s enjoyment of his right to 
equal educational opportunities is still deferred. Already 
over 6 years have elapsed since petitioner first applied for 
admission to the University, and the end of his wait for vin­
dication of his rights is not yet in sight. The state’s motion 
for extension of time (see Appendix B) makes that all too 
clear. We submit that petitioner is entitled to the support 
and protection of this Court in vindication of his claim, 
and that this petition should be granted to review and deter­
mine that question,

4. The court below in deferring decision on petitioner’s 
request to be admitted to the University of Florida has 
failed to follow the mandate of this Court. The court was 
instructed to consider the case in the light of the School 
Segregation Cases, decided May 17, 1954. The court below 
adopted and followed a suggested formula announced by 
the Court a year later in May, 1955. We submit this was 
error and abuse of discretion. This petition should be 
granted to review and correct this error and flagrant abuse 
of discretion.



15

CONCLUSION

W herefore, for the reasons hereinabove stated, it is 
respectfu lly subm itted that this petition for writ o f 
statutory certiorari should be granted and, in the alter­
native, that this petition for writ of common law  cer­
tiorari should be granted, an d /or a writ o f m andamus 
issue from this Court directed to the Supreme Court 
o f the State o f F lorida and the H onorable E. Harris 
Drew, the C hief Justice o f the Supreme Court o f the 
State o f F lorida and the H onorable Glenn Terrell, 
B. K. Roberts, Stephen C. O ’Connell, Elwyn Thomas, 
T. Frank H obson and Campbell Thornal, the A ssociate  
Justices o f the Supreme Court o f the State o f Florida, 
requiring said C hief Justice and A ssociate Justices to 
show  cause on a day to be fixed by this Court w hy a 
writ o f m andamus should not issue from this Court 
ordering petitioner’s adm ission w ithout further delay  
to the U niversity o f Florida School of Law.

R obert L. Carter ,
H orace H il l ,
T hurgood M arsh a ll ,

Counsel for Petitioner.

E lwood H . C h is o l m , 
W il l ia m  L. T aylor,

of Counsel.



17

A PPEN D IX  A

O pinion and Order o f the Supreme Court 
o f Florida

Dated October 19, 1955
R oberts, J . :

This cause came on for reconsideration in accordance 
with the mandate of the Supreme Court of the United 
States entered on May 24, 1954. The history of the case 
is set forth in State ex rel. Hawkins v. Board of Control of 
Florida, et al., (Fla.) 47 So. 2d 608; (Fla.) 53 So. 2d 116, 
cert. den. 342 U. S. 877, 72 S. Ct. 166, 96 L. Ed. 659; (Fla.) 
60 So. 2d 162, cert, granted 347 U. S. 971, 74 S. Ct. 783, 98 
L. Ed. 1112. By and through this litigation, the relator 
seeks admission to the College of Law of the University of 
Florida on the basis that it is a tax-supported institution, 
that he is in all respects qualified, and that his admission 
has been refused solely because he is a member of the negro 
race. His admission was denied by this court and his cause 
dismissed on August 1, 1952, for the reason that there was 
available to him adequate opportunity for legal education 
at the LawT School of the Florida A. & M. University, an 
institution supported by the State of Florida for the higher 
education of negroes, and that, although the facilities were 
not identical, they were substantially equal and were suffi­
cient to satisfy his rights under the “ separate but equal” 
doctrine announced by the Supreme Court of the United 
States in 1896, in Plessy v. Ferguson, 163 U. S. 537, and 
subsequent cases. See State ex rel. Hawkins v. Board of 
Control, supra, 60 So. 2d 162.

The relator appealed our decision to the Supreme Court 
of the United States, where it was considered with other 
comparable appeals there, one of which was Brown v. 
Board of Education of Topeka. On May 17, 1954, the 
Supreme Court of the United States handed down its first



18

opinion in the Brown case (reported in 347 U. S. 483, 74
S. Ct. 686, 98 L. Ed. 873, 38 A. L. R. 2d 1180), by which it 
announced the end of segregation in the public schools 
and rejected the “ separate but equal” doctrine established 
in Plessy v. Ferguson, supra, in the following language:

“ In Sweatt v. Painter, supra [339 U. S. 629, 70 
S. Ct. 848, 94 L. Ed. 1114] in finding that a segre­
gated law school for Negroes could not provide them 
equal educational opportunities, this Court relied in 
large part on ‘those qualities which are incapable 
of objective measurement but which make for great­
ness in a law school.’ In McLaurin v. Oklahoma 
State Regents, supra, [339 U. S. 637] the Court, in 
requiring that a Negro admitted to a white graduate 
school be treated like all other students, again re­
sorted to intangible considerations: ‘. . . his ability 
to study, to engage in discussions and exchange 
views with other students, and, in general, to learn 
his profession.’ Such considerations apply with 
added force to children in grade and high schools. 
To separate them from others of similar age and 
qualifications solely because of their race generates 
a feeling of inferiority as to their status in the com­
munity that may affect their hearts and minds in a 
way unlikely ever to be undone. . . .

“ Whatever may have been the extent of psycho­
logical knowledge at the time of Plessy v. Ferguson, 
this finding is amply supported by modern authority. 
Any language in Plessy v. Ferguson contrary to 
this finding is rejected.

“ We conclude that in the field of public educa­
tion, the doctrine of ‘separate but equal’ has no 
place. Separate educational facilities are inherently 
unequal. Therefore, we hold that the plaintiffs and 
others similarly situated for whom the actions have

Appendix A



19

been brought are, by reason of the segregation com­
plained of, deprived of the equal protection of the 
laws guaranteed by the Fourteenth Amendment. This 
disposition makes unnecessary any discussion 
whether such segregation also violates the Due 
Process Clause of the Fourteenth Amendment.”

On May 24, 1954, the Supreme Court of the United 
States vacated our judgment of August 1,1952, and directed 
our reconsideration of the instant case in the light of its 
opinion of May 17, 1954, in the Brown case, supra [347 
U. S. 483] “ and conditions that now prevail.” Under 
order of this court, all pleadings were brought down to 
date and now pose the single question of whether or not 
the relator is entitled to be admitted to the University of 
Florida Law School upon showing that he has met the 
routine entrance requirements. In its May 17, 1954, opin­
ion in the Brown case, the Supreme Court of the United 
States reserved jurisdiction for the purpose of making 
further orders, judgments and decrees and, pursuant to 
that reservation of jurisdiction, on May 31, 1955, entered a 
supplemental opinion (reported in 75 S. Ct. 753, 99 L. Ed. 
653, and referred to hereafter as the “ implementation 
decision” ) in which it said:

‘ ‘ Full implementation of these constitutional prin­
ciples may require solution of varied local school 
problems. School authorities have the primary re­
sponsibility for elucidating, assessing, and solving 
these problems; courts will have to consider whether 
the action of school authorities constitutes good faith 
implementation of the governing constitutional prin­
ciples. Because of their proximity to local condi­
tions and the possible need for further hearings, the 
courts which originally heard these cases can best 
perform this judicial appraisal. Accordingly, we 
believe it appropriate to remand the cases to those 
courts.

Appendix A



20

“ In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tra­
ditionally, equity has been characterized by a practi­
cal flexibility in shaping its remedies and by a 
facility for adjusting and reconciling public and 
private needs. These cases call for the exercise of 
these traditional attributes of equity power.

“ At stake is the personal interest of the plain­
tiffs in admission to public schools as soon as prac­
ticable on a non-discriminatory basis. To effectu­
ate this interest may call for elimination of a variety 
of obstacles in making the transition to school sys­
tems operated in accordance with the constitutional 
principles set forth in our May 17, 1954, decision. 
Courts of equity may properly take into account the 
public interest in the elimination of such obstacles 
in a systematic and effective manner. But it should 
go without saying that the vitality of these consti- 
tional principles cannot be allowed to yield simply 
because of disagreement with them.

“ While giving weight to these public and pri­
vate considerations, the courts will require that the 
defendants make a prompt and reasonable start 
toward full compliance with our May 17,1954, ruling. 
Once such a start has been made, the courts may 
find that additional time is necessary to carry out 
the ruling in an effective manner. The burden rests 
upon the defendants to establish that .such time is 
necessary in the public interest and is consistent 
with good faith compliance at the earliest practicable 
date. To that end, the courts may consider prob­
lems related to administration, arising from the 
physical condition of the school plant, the school 
and transportation system, personnel, revision of 
school districts and attendance areas into compact 
units to achieve a system of determining admission

Appendix A



21

to the public schools on a non-racial basis, and revi­
sion of local laws and regulations which may be 
necessary in solving the foregoing problems. They 
will also consider the adequacy of any plans the 
defendants may propose to meet the problems and 
to effectuate a transition to a racially non-discrimi- 
natory school system. During this period of transi­
tion, the courts will retain jurisdiction of these 
cases.

“ The judgments below, except that in the Dela­
ware case, are accordingly reversed and remanded 
to the district courts to take such proceedings and 
enter such orders and decrees consistent with this 
opinion as are necessary and proper to admit to 
public schools on a racially non-discriminatory 
basis with all deliberate speed the parties to these 
cases. . . .

“ It is so ordered.”

Article VI of the Constitution of the United States pro­
vides, among other things, the following:

“ This Constitution, and the Laws of the United 
States which shall be made in Pursuance thereof; 
and all Treaties made, or which shall be made, under 
the Authority of the United States, shall be the 
supreme Law of the Land; and the Judges in every 
State shall he hound thereby, any Thing in the Con­
stitution or Laws of any State to the Contrary not­
withstanding.” (Emphasis added.)

The theory of “ separate but equal” facilities under 
which this state has developed its educational system since 
Plessy v. Ferguson, supra, was decided in 1896, has been 
abolished by the decision of the Supreme Court in Brown 
v. Board of Education of Topeka, supra, 347 U. S. 483; and

Appendix A



22

we deem it to be our inescapable duty to abide by tbis deci­
sion of the United States Supreme Court interpreting the 
federal constitution. It therefore follows that the respond­
ents may not lawfully refuse to admit the relator to the 
University of Florida Law School merely because he is a 
member of the negro race and “ separate but equal” facili­
ties have been provided for him at a separate law school. 
Nor can we sustain the contention of respondents that “ the 
adverse psychological effect of segregation on Negro chil­
dren on which the case of Brown v. Board of Education, 
supra, rested would have no application to the petitioner 
who is a college graduate and 48 years of age,” which they 
present in defense of their action in refusing to admit 
relator to the University of Florida Law School.

The respondents also state, however, as a third de­
fense to such action, that “ the admission of students of 
the Negro race to the University of Florida, as well as to 
other institutions of higher learning established for white 
students only, presents grave and serious problems affect­
ing the welfare of all students and the institutions them­
selves and will require numerous adjustments and changes 
at the institutions of higher learning; and respondents 
cannot satisfactorily make the necessary changes and ad­
justments until all questions as to time and manner of 
establishing the new order shall have been decided on the 
further consideration by the United States Supreme Court 
. . .” This, in my opinion, constitutes a valid defense to 
issuance of the peremptory writ at this time.

The “ implementation decision” of May 31, 1955, quoted 
at length above, does not impose upon the respondents a 
clear legal duty to admit the relator to its Law School 
immediately, or at any particular time in the future; on 
the contrary, the clear import of this decision—and, indeed, 
its express direction—is that the state courts shall apply 
equitable principles in the determination of the precise 
time in any given jurisdiction when members of the negro

Appendix A



23

race shall be admitted to white schools. The Supreme 
Court of the United States said in that decision that these 
cases call for the exercise by the courts of the traditional 
powers of an equity court with particular reference tc 
“ its facility for adjusting and reconciling public and pri­
vate needs,” and the “ practical flexibility in shaping its 
remedies.” In entering its “ implementation decision,” it 
is very likely that the high court had before it, and may 
well have considered, the decision of this court rendered 
November 16, 1954, in Board of Public Instruction v. State, 
75 So. 2d 832, in which, speaking through Mr. Justice Ter­
rell, we discussed the necessity of gradual de-segregation, 
and, among other things, said:

“ School systems are developed on long range 
planning. Since the Brown case reverses a trend 
that has been followed for generations certainly 
there should be a gradual adjustment from the exist­
ing segregated system to the non-segregated system. 
This is the more true in most of the states with 
segregated school systems because plants and phy­
sical facilities have not kept pace with the growth of 
population, hence they are bursting at the seams 
from overcrowded conditions.

# # *
“ . . .  When desegregation comes in the democratic 

way it will be under regulations imposed by local 
authority who will be fair and just to both races in 
view of the lights before them. If it come in any 
other way it will follow the fate of national prohibi­
tion and some other ‘noble experiments.’ If there 
is anything settled in our democratic theory, it is 
that there must be a popular yearning for laws that 
invade settled concepts before they will be enforced. 
The U. S. Supreme Court has recognized this.”

Appendix A



24

The respondents have alleged that the admission of 
negroes to the institutions of higher learning under their 
jurisdiction and control “ presents grave and serious prob­
lems affecting the welfare of all students and the institu­
tions themselves and will require numerous adjustments 
and changes at the institutions of higher learning; . . .” 
And, under the express language of the “ implementation 
decision,” this court “ may properly take into account the 
public interest in the elimination of such obstacles in a 
systematic and effective manner.” Moreover, the relator 
has chosen as the vehicle for enforcing his lawful right in 
this court our extraordinary remedy of mandamus, and 
it has long been held in this state that the granting of the 
writ of mandamus “ is governed by equitable principles, 
and that the enforcement of the writ if granted may he 
modified or postponed in particular circumstances when 
the carrying it out according to the strict letter of the 
command would be of no great advantage to the relator 
but would tend to work a serious public mischief, or result 
in irreparable injury or embarrassment in the orderly 
functioning of the government with regard to its financial 
affairs, unless so restricted.” City of Safety Harbor v. 
State (1939) 136 Fla. 636, 187 So. 173. See also State ex 
rel. Carson v. Bateman, 131 Fla. 625, 180 So. 22; State 
ex rel. Gibson v. City of Lakeland, 126 Fla. 342, 171 So. 
227; State ex rel. Bottome v. City of St. Petersburg, 126 
Fla, 233, 170 So. 730.

It is our opinion that, both under the equitable princi­
ples applicable to mandamus proceedings and the express 
command of the United States Supreme Court in its “ im­
plementation decision” the exercise of a sound judicial dis­
cretion requires this court to withhold, for the present, the 
issuance of a peremptory writ of mandamus in this cause, 
pending a subsequent determination of law and fact as to 
the time when the relator should be admitted to the Uni­
versity of Florida Law School; and, to that end and for

Appendix A



25

that purpose, Honorable John A. H. Murphree, Circuit 
Judge, is hereby appointed as a commissioner of this court 
to take testimony from the relator and respondents and 
such witnesses as they may produce, material to the issues 
alleged in the third defense of the respondents, as follows:

“ That the admission of students of the negro 
race to the University of Florida, as well as to other 
state institutions of higher learning established for 
white students only, presents grave and serious 
problems affecting the welfare of all students and 
the institutions themselves, and will require numer­
ous adjustments and changes at the institutions of 
higher learning; and respondents cannot satisfac­
torily make the necessary changes and adjustments 
until all questions as to time and manner of estab­
lishing the new order shall have been decided on the 
further consideration thereof by the United States 
Supreme Court, at which time the necessary adjust­
ments can be made as a part of one over-all pattern 
for all levels of education as may be finally deter­
mined, and thereby greatly decrease the danger of 
serious conflicts, incidents and disturbances,”

and with directions to file a transcript of such testimony 
without recommendations or findings of fact to this court 
within four months from the date hereof; such testimony 
to be limited in scope to conditions that may prevail, and 
that may lawfully be taken into account, in respect to the 
College of Law of the University of Florida.

We adopt this procedure pursuant to the directive of 
the “ implementation decision” to the effect that we retain 
jurisdiction “ during this period of transition” so that we 
“ may properly take into account the public interest” as 
well as the “ personal interest” of the relator in the elimi­
nation of such obstacles as otherwise might impede a sys­

Appendix A



26

tematic and effective transition to the accomplishment of 
the results ordered by the Supreme Court of the United 
States. Based upon such evidence as may be offered at 
the hearing above directed, this court will thereupon deter­
mine an effective date for the issuance of a peremptory 
writ of mandamus.

It is so ordered.

D r e w , C. J., H obson and T h o r n a l , JJ., concur.
T er r ell , J., concurs specially.
T h o m a s  and S eek in g , JJ., concur in part and dissent in 

part.

Appendix A

T e r r ell , J., concurring with R oberts, J . :
I  agree with the opinion of Mr. Justice Roberts. Were 

it not for the far-reaching effect of Brown v. Board of 
Education of Topeka, hereinafter referred to as the Brown 
case, I would refrain from expanding my concurrence. 
The Brown case, reported in 347 U. S. 483, 98 L. Ed. 873, 
38 A. L. R. 2d 1180, was decided May 17, 1954. The gist 
of the court’s opinion rejected the doctrine of “ separate 
but equal”, pronounced in Plessy v. Ferguson, 163 U. S. 
537, and held that racial segregation in the public schools 
was discriminatory and unconstitutional and had no place 
in the field of public education.

The case was restored to the docket for further con­
sideration with reference to formulating a final decree 
which was promulgated May 31, 1955, reported in 75 
S. Ct. 753, 99 L. Ed. 653. (Pertinent part of text quoted 
in opinion of Mr. Justice Roberts.) It reiterated the hold­
ing of May 17,1954, but remanded the cause to the Federal 
Court from which it originated with instruction to con­
sider problems related to administration arising from 
physical condition of school plant, school transportation



27

system, personnel, revision of school districts, attendance 
areas, local laws and regulations that may be proposed 
by school authorities to effectuate a transition to racially 
non-segregated schools.

The inferior federal courts, said the Supreme Court, 
may determine whether or not proposals to implement the 
decision are sufficient to establish a racially non-discrimina- 
tory school system. In implementing its determination that 
recial discrimination in the public schools is unconstitu­
tional, the inferior federal courts, sitting as courts of 
equity, “ will be guided by equitable principles characterized 
by a practicable flexibility in shaping its remedies, and by 
a facility for adjusting and reconciling public and private 
needs.”

This opinion will be directed to a discussion of what 
I  conceive to be the import of the last sentence in the pre­
ceding paragraph. It is not a criticism of the Brown case 
but a defense of the equities herein pointed out and others 
that may arise. I trust that it will be of aid to school 
authorities in working out this vexatious problem. Florida 
and every state with a segregated school system will be 
confronted with a host of problems in shifting from a 
segregated to a non-segregated school system. Some of 
these problems will be common but many of them will be 
different. In requiring the inferior federal courts to be 
“ guided by equitable principles characterized by a practic­
able flexibility in shaping its remedies and by a facility 
for adjusting and reconciling public and private needs”, 
what did the Supreme Court mean? The answer to this 
question is the most important aspect of the decision 
because it is not only the guide for inferior federal courts 
to interpret the proposals of local school authorities to 
comply with the law, but the Department of Education 
will be expected to follow it in shaping its pattern for 
a desegregated university and public school system.

The Brown case throws no light whatever on this point, 
nor are we enlightened by a study of the facts in that

Appendix A



Appendix A

case. It arose in the State of Kansas where less than 
three percent of its school population is Negro. There 
is a respectable body of opinion in the country which 
subscribes to the view that transition from segregated 
to desegregated schools in states where the Negro popula­
tion is very small, not exceeding eight or ten percent of 
the whole population, will be a simple matter. This is 
true because many of these states have never had a segre­
gated system and those which have had such a system have 
not been required to incur the heavy burden that the 
segregated school system requires.

In Florida the ratio of white school population to Negro 
school population is approximately 79 to 21. In some of 
the states with segregated schools the ratio of white to 
Negro school population is approximately 50 to 50. Other 
segregated states have ratios between these two extremes. 
In said states, segregation has been the school pattern 
since the public school system was instituted. Billions of 
dollars have been expended by them in providing and 
improving physical school facilities, the preparation of 
teachers and provision for other equipment to raise the 
general standard of education. All of this expenditure 
was based on legislative and judicial assurance that it was 
proper school policy. Plessy v. Ferguson, supra, and other 
cases, upholding the doctrine of “ separate but equal” 
facilities for the races heretofore alluded to. Now after 
generations the same court which decided Plessy v. Fergu­
son, and after the states with segregated school systems 
in reliance on it had spent many billions of dollars in 
providing the latest approved school equipment, has decided 
that it is unconstitutional and must be discarded. This 
in the face of the fact that there is no local agitation for 
the change. It seems to me that these circumstances sug­
gest equity enough to stay desegregation until the schools 
provided in reliance on the doctrine of Plessy v. Ferguson 
have ceased to be adequate and must be replaced by others 
to meet the new requirement.



29

There is an, intangible aspect to the integrated school 
question that speaks louder for equity than the one dis­
cussed in the preceding paragraph. It has to do with the 
diverse moral, cultural and I. Q. or preparation response 
of the white and Negro races. It may also be said to 
embrace the economy of the Negro teachers. Account of 
the differential these factors present, it is a matter of 
common knowledge that whites and Negroes in mass are 
totally unprepared in mind and attitude for change to 
non-segregated schools. The degree of one’s culture and 
manners may resolve these differentials, but they will not 
resolve under the impact of court decrees or statutes. 
Closing cultural gaps is a long and tedious process and is 
not one for court decree or legislative acts. I  content 
myself with merely calling attention to this aspect of the 
segregation question. The confusion, frustration and 
disaster that will result from failure to take it into account 
can best be presented to the federal courts and adjudicated 
by them when a concrete case arises making it necessary 
to invoke “ equitable principles characterized by practicable 
flexibility.” There is no known yardstick to measure the 
equity that this observation may provoke. Innate defi­
ciencies in self-restraint and cultural acuteness always 
engender stresses, especially when they are infected with a 
racial element that is difficult to control.

Since the effect of desegregation on Florida is of 
primary concern at the present, it would be impressive 
to consider a concrete example at close range. The ratio 
of white to Negro population in Leon County is 60 to 40. 
Most of the Negroes are residents of the section known 
as “ Frenehtown” and the area near “ Bond School” . 
In fact Lincoln High and Bond School are located to 
accommodate these communities. Leon High, Sealey, Kate 
Sullivan and others are located to accommodate white 
children in the communities surrounding them. The whites 
and the Negroes in other words voluntarily segregate

Appendix A



30

themselves by community. Leon County has millions of 
dollars invested in school plants and school facilities all 
of which are crowded. This is the rule in Florida and 
in other areas in states where segregation is the rule. 
If “ equitable principles characterized by practicable 
flexibility” is to be the rule, can desegregation mean that 
the public school program of Leon County is to be scrapped 
and another instituted at the cost of millions to the tax­
payers so that Negro and white children can attend the 
same school. Reduced to the language of the street, 
“ equity” or “ equitable principles” is nothing more than 
a polite name for the plowboys’ concept of justice.

In the western part of the City of Tallahassee, Florida 
State University with approximately 7,000 white students 
is located and in the southwestern part of the city, about 
one mile away, Florida A. & M. University with approxi­
mately 3,000 colored students is located. The state has 
many millions of dollars invested in buildings and equip­
ment to administer these institutions, both of which are 
crowded. If ‘ ‘ equitable principles characterized by practic­
able flexibility” is to be the guide, does desegregation mean 
that attendance at these institutions is to be scrambled 
and one of them abandoned and the other enlarged at great 
expense in order that white and Negroes may attend the 
new school. A negative answer to this question would 
appear to be evident.

I  might venture to point out in this connection that 
segregation is not a new philosophy generated by the states 
that practice it. It is and has always been the unvarying 
law of the animal kingdom. The dove and the quail, the 
turkey and the turkey buzzard, the chicken and the guinea, 
it matters not where they are found, are segregated; place 
the horse, the cow, the sheep, the goat and the pig in the 
same pasture and they instinctively segregate; the fish in 
the sea segregate into “ schools” of their kind; when the 
goose and duck arise from the Canadian marshes and take

Appendix A



31

off for the Gulf of Mexico and other points in the south, 
they are always found segregated; and when God created 
man, he allotted each race to his own continent accord­
ing to color, Europe to the white man, Asia to the yellow 
man, Africa to the black man, and America to the red man, 
but we are now advised that God’s plan was in error and 
must be reversed despite the fact that gregariousness has 
been the law of the various species of the animal kingdom.

In a democracy, law, whether by statute, regulation or 
judge made, does not precede, but always follows a felt 
necessity or public demand for it. In fact when it derives 
from any other source, it is difficult and often impossible 
to enforce. The genius of the people is as resourceful in 
devising means to evade a law they are not in sympathy 
with as they are to enforce one they approve. The early 
patriots turned Boston harbor into a teapot one night 
because they did not like the tax on tea. President Jackson 
is said to have once defied the order of the Supreme Court 
and challenged them to enforce it. He did not subtract 
from his fame or his integrity in doing so. Our country 
went to war to overthrow the Dred Scott decision and 
prohibition petered out, was made a campaign issue and 
was repealed because sympathy for it was so indifferent 
that it could not be enforced.

States with segregated schools have them from a deep- 
seated conviction. They are as loyal to that conviction as 
they are to any other philosophy to which they are devoted. 
They are as honest and law-abiding as the people of any 
state where desegregation is the rule. Convinced as they 
are of the justice of their position, they will not readily 
renounce it if they are required to forfeit abruptly their 
conviction and their investment, are not convinced that 
their position is wrong or are required to adopt a system 
not shown them to be an improvement over the one they 
are required to forfeit.

If “ equitable principles characterized by practicable 
flexibility” is to be the polestar to guide the courts and

Appendix A



32

school authorities in the solution of this question, I  think 
the potential sources of equity pointed out herein are so 
impelling that desegregation in the public schools must 
come by sane and sensible application of the equities 
pointed out herein, including others that will arise, to the 
facts of the particular case. I think the local school 
authorities have the character, integrity and the good 
judgment required to do this. The Supreme Court used 
the Brown case as the criterion to evolve the decree that 
we are confronted with, the circumstances out of which 
it arose are so different from those which precipitated the 
case at bar that I do not think it (Brown case) rules the 
instant case. It is true that cases from South Carolina, 
Virginia and the District of Columbia were before the 
court and were considered with the Brown case but the 
latter appears to have been the basis of decision. Desegre­
gation in the public schools will be much more difficult than 
desegregation in the institutions of higher learning.

In the case at bar relator seeks entry to the law school, 
comparable to the graduate school of the University of 
Florida. I  think when required showing is made Ms 
case will be ultimately controlled by Sweat! v. Painter, 
339 U. S. 629, 94 L. Ed. 1114; McLaurin v. Oklahoma State 
Regents, 339 U. S. 637, 94 L. Ed. 1149; Sipuel v. Board of 
Regents, 322 U. S. 631; Lucy, et al. v. Adams, et al., decided 
October 10, 1955, and similar cases, but I think the plead­
ings here raise questions or equities that should be resolved 
by evidence. The opinion of Mr. Justice Roberts provides 
the orthodox method to explore these equities for which 
I feel impelled to concur.

It is so ordered.

Appendix A



33

S e b r i n g , J. concurring in part and dissenting in part:
This cause is now before the Court for a reconsidera­

tion of the issues, pursuant to the mandate of the Supreme 
Court of the United States entered May 24, 1954.

For a complete history of the case see State ex rel. 
Hawkins v. Board of Control of Florida, et al. (Fla.), 47 
So. 2d 608; (Fla.), 53 So. 2d 116, cert. den. 342 U. S. 877, 
72 S. Ct. 166, 96 L. Ed. 659; (Fla.),, 60 So. 2d 162, cert, 
granted 347 U. S. 971, 74 S. Ct. 783, 98 L. Ed. 1112.

The cause was initiated by the relator, Hawkins, when 
he filed a petition for an original writ of mandamus to 
require the Board of Control of Florida to admit him as a 
student to the College of Law of the University of Florida, 
a tax-supported institution maintained for white persons 
only. In his petition Hawkins averred that he possessed 
all the educational and moral requirements and qualifica­
tions necessary for admission to the College but that the 
Board had refused to admit him solely because he was 
a Negro.

In a return filed to an alternative writ issued in the 
cause the respondents admitted that they had refused to 
admit Hawkins to the College of Law of the University of 
Florida but that they had offered to admit him to the 
College of Law of the Florida A. & M. University, a tax- 
supported institution established and maintained for Negro 
students only, and that at the latter institution he would 
be afforded opportunities and facilities for study that were 
substantially equal to those afforded white students at the 
University of Florida.

After the return had been filed, the respondent filed 
a motion for the entry of a peremptory writ the return 
notwithstanding on the ground that the return showed 
affirmatively that the relator was entitled to the relief 
for which he had prayed. The motion was denied, and 
the cause was dismissed on August 1, 1952, for the reason 
that although the facilities offered members of the white

Appendix A



34

and Negro races to obtain an education were not identical 
they were substantially equal and this satisfied the require­
ments of the Fourteenth Amendment to the Federal Con­
stitution, under the principle enunciated in Plessy v. 
Ferguson, 163 U. S. 537, 41 L. Ed. 256, 16 S. Ct. 1138, 
and kindred cases.

After the judgment had been entered the relator filed 
a petition in the Supreme Court of the United States for 
a writ of certiorari to review the judgment. On May 24, 
1954, that court granted the petition for certiorari, vacated 
our judgment, and remanded the cause to this Court with 
directions that the cause be reconsidered “ in the light of 
the Segregation Cases decided May 17, 1954, Brown v. 
Board of Education, etc., and conditions that now pre­
vail . . .  in order that such proceedings may be had in the 
said cause, in conformity with the judgment and decree 
of this [United States Supreme] Court above stated, as, 
according to right and justice, and the Constitution and 
laws of the United States, ought to be had therein. . . .” 
State ex rel. Hawkins v. Board of Control, 347 U. S. 971, 
74 S. Ct. 783, 98 L. Ed. 1112.

Pursuant to the mandate of the Supreme Court of the 
United States, this Court, on July 31, 1954, entered an 
order directing the relator to amend his original petition 
in mandamus “ so as to place before this Court the issues 
raised by the original petition ‘ in the light of the Segrega­
tion Cases decided May 17, 1954, Brown v. Board of Educa­
tion, etc., and conditions that now prevail,’ ” and directing 
the respondents “ to amend their return so as to present 
to this Court any answer they may have to said amended 
petition which will enable this Court to carry out the 
mandate of the Supreme Court of the United States.”

Thereafter, the relator filed an amended petition in 
which he averred, in substance, that he possessed all the 
educational and moral qualifications necessary for admis­
sion to the College of Law of the University of Florida; 
that he had an A. B. degree from Lincoln University,

Appendix A



35

Pennsylvania; that he had duly applied for admission to 
said College of Law but had been refused admission 
“ solely because of certain provisions of the Constitution 
and Statutes of the State of Florida which deny the right 
of your petitioner admission to the said University solely 
because of . . . petitioner ’s race and color, thus denying . . . 
petitioner the equal protection of laws solely on the ground 
of Ms race and color, contrary to the Constitution of the 
United States . . . that in addition to the College of Law 
of the University of Florida, the board of Control by 
legislative authority and from public funds has established, 
supported and maintained the Florida Agricultural and 
Mechanical College of law specifically for Negroes only;” 
that the Board has “ refused to admit your petitioner to 
the University of Florida solely because of race and color 
but have offered admittance to the Florida Agricultural 
and Mechanical College of Law on the basis of his race and 
color. That the arbitrary and illegal refusal and offer 
of admittance to the respective colleges by the respondents 
are in violation of the equal protection of the laws guaran­
teed by the Constitution of the State of Florida and of 
the United States in light of the decision handed down 
on May 17,1954 by the Supreme Court of the United States 
in Brown v. The Board of Education, et al. That the 
separate educational facilities hereinbefore alleged are 
inherently unequal. That by virtue of the segregation 
complained herein your petitioner has been deprived of 
the equal protection of the laws guaranteed under and 
by virtue of the 14th amend [sic] of the Constitution.”

In due course the respondents filed an amended return 
to the amended petition admitting all of the material 
allegations of the return, except that they denied that 
the separate educational facilities which respondent had 
been offered were unequal, and denied that the segrega­
tion complained of deprived the relator of the equal pro­
tection of the law guaranteed to him by the Fourteenth 
Amendment to the Constituution of the United States.

Appendix A



36

The cause is now before this Court for final decision 
on the amended petition, the amended return, and the 
motion of the relator for a judgment in his favor the 
allegations of the amended return to the contrary notwith­
standing.

Brown v. Board of Education of Topeka, 347 U. S. 483, 
74 S. Ct. 686, 98 L. Ed. 873, 38 A. L. R. 2d 1180, which 
we have been directed by the Supreme Court of the United 
States to consider in our determination of the right of the 
relator to the relief prayed, was decided on May 17, 1954, 
some nine months after the judgment of dismissal was 
entered by this Court in the case at bar. It was a suit 
brought by a Negro to gain admission to a public school 
maintained exclusively for white children and involved the 
question as to whether or not the “ segregation of children 
in the public schools solely on the basis of race, even 
though the physical facilities and other ‘tangible’ factors 
may be equal, deprive the children of the minority group 
of equal educational opportunities.” Except for the fact 
that the school facilities involved were maintained for 
grade and high school students, and not for college students, 
the essential facts in the Brown case are identical with 
those presented by the amended petition of the relator.

In arriving at its conclusion that the facilities main­
tained by the Board of Education of the City of Topeka 
did not afford to the children of that city the equal educa­
tional opportunities which the Federal Constitution re­
quires, the Supreme Court of the United States had this 
to say:

“ In Sweatt v. Painter [339 U. S. 629, 70 S. Ct. 
848, 94 L. Ed. 1114], [this Court] in finding that a 
segregated law school for Negroes could not provide 
them equal educational opportunities . . . relied in 
large part on ‘those qualities which are incapable 
of objective measurement but which make for great­

Appendix A



37

ness in a law school.’ In McLanrin v. Oklahoma 
State Regents, 339 U. S. 637, 94 L. Ed. 1149, 70 
S. Ct. 851, . . . the Court, in requiring that a Negro 
admitted to a white graduate school be treated like 
all other students, again re-sorted to intangible con­
siderations: ‘. . . his ability to study, to engage in 
discussions and exchange views with other students, 
and, in general, to learn his profession. ’ Such con­
siderations apply with added force to children in 
grade and high schools. To separate them from 
others of similar age and qualifications solely be­
cause of their race generates a feeling of inferiority 
as to their status in the community that- may affect 
their hearts and minds in a way unlikely ever to be 
undone. . . .

“ Whatever may have been the extent of psycho­
logical knowledge at the time of Plessy v. Ferguson 
[163 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 356], this 
finding is amply supported by modern authority. 
Any language in Plessy v. Ferguson contrary to this 
finding is rejected. (Emphasis supplied.)

“ We conclude that in the field of public education 
the doctrine of ‘separate but equal’ has no place. 
Separate educational facilities are inherently un­
equal. Therefore, we hold that the plaintiffs and 
others similarly situated for whom the actions have 
been brought are, by reason of the segregation com­
plained of, deprived of the equal protection of the 
laws guaranteed by the Fourteenth Amendment.. . . ”

As we have noted, this Court., in reaching its con­
clusion in the case at bar, that the facilities offered by the 
State of Florida to the relator Hawkins afforded him the 
equal educational opportunities guaranteed by the Federal 
Constitution, relied heavily, if not entirely, upon the 
principle stated in Plessy v. Ferguson, supra, respecting

Appendix A



38

the effect of the Fourteenth Amendment upon state laws 
and regulations requiring segregation of races in state 
supported institutions: “ The object of the [Fourteenth] 
amendment was undoubtedly to enforce the absolute 
equality of the two races before the law, but in the nature 
of things it could not have been intended to abolish dis­
tinctions based upon color, or to enforce social, as dis­
tinguished from political, equality, or a co-mingling of 
the two races upon terms unsatisfactory to either. Laws 
permitting, and even requiring, their separation in places 
where they are liable to be brought into contact do not 
necessarily imply the inferiority of either race to the 
other,and have been generally, if not universally, recog­
nized as within the competency of the state legislatures in 
the exercise of their police power. The most common 
instance of this is connected with the establishment of 
separate schools for white and colored children, which 
have been held to be a valid exercise of the legislative 
power even by courts of states where the political rights 
of the colored race have been longest and most earnestly 
enforced. . . . The distinction between laws interfering 
with the political equality of the Negro and those requir­
ing the separation of the two races in schools . . . has been 
frequently drawn by this court.”

But now that the Supreme Court of the United States 
has expressly repudiated the long-standing principle estab­
lished in Plessy v. Ferguson, supra, so far as it relates 
to public education, the only Federal judicial guide that 
we have as to what the States must do in order to pro­
vide “ equal educational opportunities” to its citizens, 
within the purview of the Fourteenth Amendment to the 
Federal Constitution, is that laid down in Brown v. Board 
of Education, supra, which expressly holds “ that in the 
field of public education the doctrine of ‘separate but 
equal’ has no place.”

Appendix A



39

That it is our judicial duty to give effect to this new pro­
nouncement cannot be seriously questioned. For the 
Federal Constitution, which all Florida judges have taken 
a solemn oath to “ support, protect and defend”, Article 
XVI, Section 2, Constitution of Florida, specifically pro­
vides that “ This Constitution, and the Laws of the United 
States which shall be made in Pursuance thereof . . . shall 
be the supreme Law of the Land; and the Judges in every 
State shall he hound thereby, any Thing in the Constitution 
or Laws of any State to the Contrary notwithstanding.” 
Article VI, Constitution of the United States. (Emphasis 
supplied.) Therefore, whatever may be our personal 
views and desires in respect to the matter, we have the 
binding obligation imposed by our oath of office, to apply 
to the issue at hand the Federal Constitution, as presently 
interpreted by the Supreme Court of the United States, 
and in its application to recognize and give force and effect 
to this new principle enunciated in Brown v. Board of 
Education, supra, that the doctrine of “ separate but equal” 
facilities, upon which the original decision of this Court 
was based, and upon which the respondents now bottom 
their defense to the amended petition of the relator, has 
no place in the field of public education in Florida, even 
though our own Constitution and statutes contain pro­
visions that require in our schools the separation of the 
races.

While it might be suggested that the principle enunciated 
in Brown v. Board of Education, supra, is not binding 
upon us, under the facts of the case at bar, because the 
cause in which the principle was stated involved grade 
and high schools and not institutions of higher learning, 
we think that a close analysis of the opinion in the Brown 
case, and of the decisions upon which the court bottomed 
its conclusion, make it plain that the principle was meant 
to apply to public schools at all levels. For, as is specifi­
cally pointed out in the Brown case, the court, in reach­

Appendix A



40'

ing its conclusion that the doctrine of separate hut equal 
facilities has no place in the field of public education, relied 
on its earlier case of Sweatt v. Painter, 339 U. S. 629, 
70 S. Ct. 848, 94 L. Ed. 1114, which involved the right of 
a Negro to attend the law school of the University of 
Texas, an institution maintained under the Constitution 
of Texas for white persons only. It also relied on, and 
brought forward into the Brown opinion, what it had 
said, in effect, in McLaurin v. Oklahoma State Regents, 
339 U. S. 637, 70 S. Ct, 851, 94 L. Ed. 1149, that a Negro 
student, whom the court had required the State of Oklahoma 
to admit to a graduate school maintained by the State for 
white persons only, must be accorded the same treatment 
as a white student—that the furnishing of equal educa­
tional opportunities to a Negro student at any educational 
level involved something more than equal physical facilities, 
and required that he be afforded the full opportunity, with­
out discrimination to mingle freely with white students 
so that he could exchange views and engage in full dis­
cussion with them “ and, in general . . . learn his pro­
fession.”

It is clear from these citations, and from the action 
of the Court in respect to our own judgment of dismissal 
in the instant case, that the new doctrine formulated in 
Brown v. Board of Education, supra, to the effect that in 
order for educational opportunities to be equal they must 
also be identical, was meant to apply to tax-supported 
schools at every level; because under the order that was 
entered by the Court in the case at bar, the judgment of 
this Court, which was based upon the doctrine of ‘ ‘ separate 
but equal” was vacated and set aside, with directions that 
the cause be reconsidered in the light of the Segregation 
cases, Brown v. Board of Education et al., decided May 
17, 1954, “ in order that such proceedings may be had . . . 
in conformity with the [said order] . . .  as, according to 
. . . the Constitution and laws of the United States, ought 
to be had therein. . . . ” (Emphasis supplied.)

Appendix A



41

In considering, from this point of view, the case 
presently before us, it should be noted that in its opinion 
in the Brown case, decided May 17, 1954, the Supreme 
Court of the United States expressly retained jurisdiction 
of the cause and the parties, in order to have “ the full 
assistance of the parties in formulating decrees;” and that 
on May 31, 1955, after extensive argument by the parties 
and amici curiae, a final opinion and judgment was entered 
in the cause. Brown v. Board of Education of Topeka, and
companion cases,----- U. S .------ , 75 S. Ct. 753, 99 L. Ed.
653. "While it is elementary that the opinion and judgment 
dated May 31, 1955, is binding only upon the parties that 
were actually involved in the cases in which it was entered, 
it cannot be doubted that in the rendition of its opinion 
and judgment the court laid down certain principles and 
rules which we must follow in the instant case in determin­
ing the nature of the relief that should be afforded the 
relator:

“ The opinions of [May 17, 1954] declaring the 
fundamental principle that racial discrimination in 
public education is unconstitutional, are incorpo­
rated herein by reference. All provisions of federal, 
state, or local law requiring or permitting such dis­
crimination must yield to this principle. . . . Full 
implementation of these constitutional principles 
may require solution of varied school problems. 
School authorities have the primary responsibility 
for elucidating, assessing, and solving these prob­
lems ; courts will have to consider whether the action 
of school authorities constitute good faith imple­
mentation of the governing constitutional prin­
ciples. . . .  At stake is the personal interest of the 
plaintiffs in admission to public schools as soon 
as practicable on a nondiscriminatory basis. To 
effectuate this interest may call for elimination of a 
variety of obstacles in making the transition to school

Appendix A



42

systems operated in accordance with the constitu­
tional principles set forth in our May 17, 1954, 
decision. Courts of equity may properly take into 
account the public interest in the elimination of such 
obstacles in a systematic and effective manner. But 
it should go without saying that the vitality of these 
constitutional principles cannot be allowed to yield 
simply because of disagreements with them. . . . ”

When these principles and rules are applied to the 
facts revealed by the pleadings in the instant case, it is 
clear that no lawful reason has been shown by the respond­
ents as to why the relator should not be admitted to the 
College of Law of the University of Florida on the same 
basis as any white student. As we have heretofore stated, 
the fact, averred in the amended return of the respondent, 
that the State of Florida maintains a Law College ex­
clusively for Negroes at the Florida Agricultural and 
Mechanical University to which the relator has been offered 
admittance, fails to present, under Brown v. Board of 
Education, a valid defense to the action. The second 
defense presented by the respondents, that the relator is 
now more than 48 years of age and, consequently, “ the 
adverse psychological effect of segregation on Negro 
children on which the case of Brown v. Board of Education, 
supra, rested would have no application to the petitioner 
who is a college graduate and 48 years of age”, does not, 
in our opinion, present a valid defense to the action.

The third defense presented by the respondents is that 
“ the admission of students of the Negro race to the 
University of Florida, as well as to other institutions of 
higher learning established for white students only, pre­
sents grave and serious problems affecting the welfare of 
all students and the institutions themselves and will require 
numerous adjustments and changes at the institutions of 
higher learning; and respondents cannot satisfactorily make

Appendix A



43

the necessary changes and adjustments until all questions 
as to time and manner of establishing the new order shall 
have been decided on the further consideration by the 
United States Supreme Court. . . . ” (Emphasis supplied.)

In respect to this defense, it must be noted that on 
May 31, 1955, which was more than six months after the 
respondents had filed their amended return, the Supreme 
Court of the United States rendered its opinion and judg­
ment “ establishing the new order” to which the respond­
ents refer in their amended return. And in the establish­
ment of the “ new order” it specifically stated that “ at 
stake is the personal interest of the plaintiffs in admission 
to public schools as soon as practicable on a non-discrimina- 
tory basis” ; and that the effectuation of this interest “ may 
call for elimination of a variety of obstacles in making the 
transition to school systems operated in accordance with 
the Constitutional principles set forth in [the] May 17, 
1954 decision.” It also said that while the courts “ may 
properly take into account the public interest in the elimina­
tion of such obstacles in a systematic and effective man­
ner. . . . The vitality of these constitutional principles 
cannot be allowed to yield simply because of disagree­
ments with them. . . . ”

Undoubtedly certain adjustments will have to be made 
by the respondents to accommodate the desires of the 
relator to attend the College of Law of the University of 
Florida. But it is impossible for us to believe, when we 
confine, as we must, our consideration of the issues to 
the case made by the pleadings, that these adjustments 
will be of such a major nature that the constitutional right 
of the relator to attend the school of his choice should be 
denied at this time simply because of the inconveniences 
that may be suffered by the respondents in eliminating the 
administrative obstacles that now prevent his attendance.

I am of the opinion, therefore, that the amended return 
of the respondents fails to present any valid defense to

Appendix A



44

the allegations of the amended petition and that con­
sequently a peremptory writ in favor of the relator should 
he issued commanding the respondents to consider the 
application of the relator for admission to the College of 
Law of the University of Florida on precisely the same 
basis that the respondents would consider the application 
of a white person, and that if, upon this basis, the relator 
is found to have the necessary qualifications for admission, 
he should be admitted to the College of Law of the Uni­
versity of Florida under the same rules and regulations, 
and upon the same conditions, that a white person would 
he admitted.

Appendix A

T h o m a s , J.
In view of the decision of the Supreme Court of the 

United States cited in the mandate of that court issued in 
this case, I think this court has no alternative but to grant 
the motion for a peremptory writ notwithstanding the 
answer so I concur in the conclusion of Sebring, J. that such 
should be the disposition of this controversy now.



45

APPENDIX B

Motion for Extension of Time
Come now the B oard op C ontrol , a body corporate, et al., 

Respondents in the above entitled cause and show unto this 
Court that this Court, in its Opinion filed in this cause on 
October 19, 1955, held that, both under the equitable prin­
ciples applicable to mandamus proceedings and the express 
command of the United States Supreme Court in its “ im­
plementation decision” the exercise of a sound judicial dis­
cretion requires this Court to withhold, for the present, the 
issuance of a peremptory writ of mandamus, pending a 
“ subsequent determination of law and fact as to the time 
when the Relator should be admitted to the University of 
Florida Law School; and, to that end and for that purpose, 
Honorable John A. H. Murphee, Circuit Judge, is hereby 
appointed as a commissioner of this court to take testimony 
from the Relator and Respondents and such witnesses as 
they may produce, material to the issues alleged in the third 
defense of the Respondents” ; that the said commissioner 
was directed to file a ‘ ‘ transcript of such testimony without 
recommendations or findings of fact to this Court within 
four (4) months from the date hereof” (October 19, 1955), 
and that the four (4) month period in which the commis­
sioner is directed to file his transcript of testimony will 
expire February 19, 1956.

Respondents further show unto the Court:
1. That the Honorable Frank J. Heintz, the Assistant 

Attorney General, who handled this cause for Respondents 
in the trial court and in the Supreme Court, died on Decem­
ber 12, 1955.

2. That the scope of the survey necessary to obtain the 
information upon which this Court may intelligently deter­
mine an effective date for the issuance of a peremptory writ



46

of mandamus in this cause is so large that it cannot be com­
pleted by February 19, 1956 for the following reasons:

(a) the survey will require a study of student, faculty 
and parent attitudes pertaining to the integration 
of negroes at the University of Florida Law College.

(b) the study will require a survey or analysis of facili­
ties, students, and faculty at Florida A & M Uni­
versity, including an accurate estimate, if possible, 
as to the number of students now attending Florida 
A & M University who would seek a transfer to the 
University of Florida Law College or to another 
school.

(c) the study would require that a determination be 
made, if possible, as to whether a forthwith order 
of admission to the University of Florida of negro 
students would result in a significant increase in 
student population at the University which had not 
been contemplated by school authorities and for 
which no administrative planning has been accom­
plished.

(d) the study will require a consideration of the phe­
nomenal growth of Florida’s population which is 
directly related to the overcrowded conditions of 
the universities and public schools of the State of 
Florida, which population increase, economical 
growth and swiftly changing social structure places 
Florida in a unique position and creates problems 
relating to school segregation which do not exist to 
the same degree in other southern states.

(e) the survey will require that a thorough study and 
analysis be made of the existing facilities at the 
University of Florida with regard to dormitory 
space, food and recreational facilities, and the ade­

Appendix B



47

quacy of such facilities to meet the needs of the pres­
ent enrollment or a drastically increased or de­
creased enrollment which might result if negroes 
are admitted to the University of Florida Law 
School at this time.

(f) the .survey will require a review of available data 
relating to known achievement level distinctions be­
tween white and Negro high school and college stu­
dents in Florida, and a comparative analysis of the 
effect of such distinctions upon administrative 
efforts to maintain and improve scholastic stand­
ards at Florida institutions of higher learning in 
general and upon the University of Florida Law 
School specifically if Negro students are integrated 
into the white universities at this time.

3. Respondents further show unto the Court that sur­
veys and studies are presently being made relating to the 
problems, questions and matters referred to herein but such 
surveys and studies cannot be completed and analyzed with 
any degree of accuracy prior to the expiration of the pres­
ent school term.

W h e r e fo r e , Respondents respectfully move this Court 
for an order extending until July 2, 1956 the time in which 
the said commissioner shall have to file his transcript of 
testimony.

Appendix B

R ichard  W. E r v in ,
Attorney General;

R a l p h  E . Od u m ,
Assistant Attorney General, 

Attorneys for Respondents.