Vasquez v. Hillery, Jr. Motion for Leave to File Brief and Brief Amicus Curiae

    N o .  3 2 7 5 6

In the

Supreme (Unurt o f tfyp £>tate nf GDklaljnma

ADA LOIS SIPUEL, Plaintiff-in-error,

vs.

BOARD OF REGENTS OF THE UNIVERSITY OF OKLA­
HOMA, GEORGE L. CROSS, MAURICE H. MERRILL, 

GEORGE WADSACK and ROY GITTINGER, 
Defendants-in-error.

Appeal from the District Court of Cleveland County, 
Oklahoma; Honorable Ben T. Williams, Judge.

BRIEF FOR THE PLAINTIFF-IN-ERROR

AMOS T. HALL
107V2 N. Greenwood Avenue 
Tulsa, Oklahoma

THURGOOD MARSHALL 
ROBERT L. CARTER 

20 West 40th Street 
New York, N. Y.

Attorneys for Plaintiff-in-error

FRANKLIN H. WILLIAMS 
New York, New York 

Of Counsel

(Action in Mandamus)



n

B. Rational Basis for the Equal But Separate
Doctrine Is That Although a State May Require 
Segregation, Equality Must Be Afforded Under the 
Segregation System _____________________________  7

Buchanan v. Warley, 245 U. S. 60 (1917)------ 8
Gong Lum v. Rice, 275 U. S. 78 (1928)---------  7, 8
Johnson v. School Board, 166 N. C. 468, 82

S. E. 832 (1914)_________________________________ 8
Mitchell v. United States, 313 U. S. 80 (1941)- 7, 8 
Missouri ex rel. Gaines v. Canada, 305 U. S.

337 (1938)_____________________________________7, 8
Pearson v. Murray, 169 Md. 478, 182 A. 540

(1936) ________________________________________  7
People v. Gallagher, 93 N. Y. 438, 45 Am. Rep.

232 (1883)_____________________________________ 8
Plessy v. Ferguson, 163 U. S. 537 (1896)____7, 8
Roberts v. City of Boston, 5 Cush (Mass.)

198 (1849) ____________________________________ 8
Ward v. Flood, 48 Cal. 36 (1874)____________  7, 8

C. Equality Under a Segregated System is a
Legal Fiction and a Judicial Myth_________________ 9

1. The General Inequities in Public Educa­
tion Systems Where Segregation is Required___ 9

2. On the Professional School Level the In­
equities are Even More Glaring_______________  12
D. The Requirements of the 14th Amendment

Can Be Met Only Under an Unsegregated Public 
Educational System______________________________  17

E. Even Under “ Equal But Separate”  Doc­
trine, the Action of Defendants-in-Error Violated 
the Fourteenth Amendment_______________________  18
II. The application for a writ of mandamus to com­

pel the defendant-in-error to admit plaintiff-in-error 
to the Law School of the University of Oklahoma was 
proper and should have been granted by the court below 19

A. Mandamus Should Iss%te as Prayed For___ 19
Blodgett v. Holden, 275 U. S. 142 (1928)____ 23
Comley ex rel. Rowell v. Boyle, 115 Conn.

406, 162 Atl. 26 (1932)___________________________ 20

PAGE



I ll

Federal Trade Commission v. American
Tobacco Co., 264 U. S. 298 (1924)______________ 23

Missouri ex rel. Gaines v. Canada, 305 U. S.
337 (1938)_________________________ 19,21,22,23,24

Missouri P. R. Co. v. Boone, 270 U. S. 466
(1926)________________________________________  23

National Labor Relations Bd. v. Jones &
Laugblin Steel Corp., 301 U. S. 1 (1936)__________ 23

Pearson v. Murray, 169 Md. 478, 182 A. 590
(1936)________________________________ 19, 21, 23, 24

Panama R. Co. v. Johnson, 264 U. S. 375
(1924)__________________________________________ 23

Richmond Screw Anchor Co. v. United States,
275 U. S. 331 (1928)_____________________________ 23

Sharpless v. Buckles, et al., 65 Kan. 838,
70 Pac. 886 (1902)___________________________ 19,20

State ex rel. Hunter v. Winterrowd, 174 Ind.
592, 92 N. E. 650 (1910)_______________________19, 21

Welch v. Swasey, 193 Mass. 364, 79 N. E.
745 (1907)______________________________________ 21
B. Prior Demand on Board of Higher Educa­

tion to Establish a Law School at Langston Uni­
versity Is Not a Prerequisite to This Action_______  24

Board of County Commrs. v. New Mexico
ex rel. Coler, 215 U. S. 296, 303 (1909)__________  26

City of Port Townsend v. First Natl. Bank,
241 Fed. 32 (C. C. A. 9th, 1917)_______________  27

McCabe v. Atchison, T. & S. F. R. Co., 235
U. S. 151, 160 (1914)__________________________  25

McGillvray Const. Co. v. Hoskins, 54 Cal.
App. 636, 202 Pac. 677 (1921)___________________ 27

Mitchell v. United States, 313 U. S. 80, 96
(1941)________________________________________  25

Northern Pacific R. R. Co. v. Washington,
142 U. S. 492, 508 (1891)______________________  26

Pearson v. Murray, 169 Md. 478, 182 A. 590
(1936) ________________________________________  25

Peo. ex rel. John Pear v. Bd. of Education,
127 111. 613, 625 (1889)

PAGE

26



IV

Pugsley v. Sellmeyer, 150 Ark. 247, 250 S. W.
538 (1923)____________________________________ 27

United States v. Saunders, 124 Fed. 124 (C.
C. A. 8th, 1903)_____________________________ 26,27

United States ex rel. Aetna Ins. Co. v. Bd. 
etc. of Town of Brooklyn, 8 Fed. 473, 475 (N. D.
111. 1881)_________________________________________27

PAGE

Statutes.

Oklahoma Constitution, Art. 13, Sec. 3------------------------ 22
Oklahoma Constitution, Art. 13a, Secs. 1 and 2----------- 26
Oklahoma Statutes (1941) 70, Secs. 363, 451-470, 1591-

1593_____________________________________________  22
Oklahoma Statutes (1941 as amended 1945), Secs. 1451- 

1509 _______________________________________________ 24

Other A uthorities.

American Teachers’ Association, The Black and White
of Rejections for Military Service (1944)_________ 11,12

Blose, David T. and Ambrose Caliver, Statistics of the 
Education of Negroes (A Decade of Progress)
(1943) ________ __________________________________10,11

Biennial Surveys of Education in the United States. 
Statistics of State School Systems, 1939-40 and
1941-42 (1944) ___________________________________ 11

Dodson, Dan W. The American Mercury (July, 1946)_ 16 
Flack, The Adoption of the Fourteenth Amendment

(1908)___________________________________________  5
Lawyer’s Edition, Annotations, Yol. 27, p. 836________  8
Lawyer’s Edition, Annotations, Yol. 44, p. 262______ 8
Merrill, Law of Mandamus (1892)___________________26, 27
National Survey of Higher Education for Negroes

_ (1943) ____________________________________________ 15
Sixteenth Census of the United States: Population,

Yol. I ll , Part 4 (1940)____________________________  13
Thompson, Charles T., Negro Journal of Education,

Yol. 14 (1945)___ 13



In the

SUPREME COURT OF THE STATE OF OKLAHOMA

No. 32756

ADA LOIS SIPUEL, Plaintiff-in-error, 

vs.

BOARD OF REGENTS OF THE UNIVERSITY OF OKLA­
HOMA, GEORGE L. CROSS, MAURICE H. MERRILL, 

GEORGE WADSACK and ROY GITTINGER,
Defendants-in-error.

BRIEF FOR THE PLAINTIFF-IN-ERROR.

Statement of the Case.

This is an appeal from the judgment of the District 
Court of Cleveland County denying application of plaintiff- 
in-error for writ of mandamus entered upon a hearing held 
on July 9, 1946 to show cause why defendants-in-error 
should not be compelled to admit plaintiff-in-error to the 
first-year class of the School of Law of the University of 
Oklahoma. In its opinion, the Court below adopted the 
view that mandamus will not lie to compel state officers 
to disregard the specific commands of state statutes at the 
behest of a plaintiff who considers such statutes unconsti­
tutional (R. 36-37). Plaintiff-in-error interposed a timely 
motion for a new trial on July 9, 1946 (R. 45), which motion 
was duly overruled on July 12, 1946 (R. 47); whereupon 
this appeal was instituted.



2

Statement of Facts.

The facts in issue are uncontroverted and have been 
agreed to by both plaintiff and defendants-in-error (R. 38- 
40). The following are the stipulated facts:

That the plaintiff-in-error is a resident and citizen of 
the United States and of the State of Oklahoma, County of 
G-rady and City of Chickasha, and desires to study law in 
the School of Law in the University of Oklahoma for the 
purpose of preparing herself to practice law in the State 
of Oklahoma (R. 38).

That the School of Law of the University of Oklahoma 
is the only law school in the State maintained by the State 
and under its control (R. 38).

That the Board of Regents of the University of Okla­
homa is an administrative agency of the State and exer­
cises over-all authority with reference to the regulation of 
instruction and admission of students in the University of 
Oklahoma; that the University is a part of the educational 
system of the State and is maintained by appropriations 
from public funds raised by taxation from the citizens 
and taxpayers of the State of Oklahoma; that the School 
of Law of the Oklahoma University specializes in law and 
procedure which regulates the government and courts of 
justice in Oklahoma; that there is no other law school main­
tained by public funds of the State where the plaintiff-in- 
error can study Oklahoma law and procedure to the same 
extent and on an equal level of scholarship and intensity as 
in the School of Law of the University of Oklahoma; that 
the plaintiff-in-error will be placed at a distinct disad­
vantage at the bar of Oklahoma and in the public service 
of the aforesaid State with respect to persons who have had 
the benefit of the unique preparation in Oklahoma law and



3

procedure offered at the School of Law of the University of 
Oklahoma, unless she is permitted to attend the aforesaid 
institution (R. 38-39).

That the plaintiff-in-error has completed the full college 
course at Langston University, a college maintained and 
operated by the State of Oklahoma for the higher educa­
tion of its Negro citizens (R. 39).

That the plaintiff-in-error made due and timely appli­
cation for admission to the first year class of the School of 
Law of the University of Oklahoma on January 14, 1946, 
for the semester beginning January 15, 1946, and that she 
then possessed and still possesses all the scholastic and 
moral qualifications required for such admission (R. 39).

That on January 14, 1946, when plaintiff-in-error ap­
plied for admission to the said School of Law, she complied 
with all of the rules and regulations entitling her to admis­
sion by filing with the proper officials of the University, an 
official transcript of her scholastic record; that said tran­
script was duly examined and inspected by the President, 
Dean of Admission and Registrar of the University (all 
defendants-in-error herein) and was found to be an official 
transcript entitling her to admission to the School of Law 
of the said University (R. 39-40).

That under the public policy of the State of Oklahoma, 
as evidenced by the constitutional and statutory provisions 
referred to in the answer of defendants-in-error herein, 
plaintiff-in-error was denied admission to the School of 
Law of the University of Oklahoma solely because of her 
race and color (R. 40).

That the plaintiff-in-error, at the time she applied for 
admission to the said school of the University of Okla­
homa, was and is now ready and willing to pay all of the



4

lawful charges, fees and tuitions required by the rules and 
regulations of the said University (R. 40).

That plainti£f-in-error has not applied to the Board of 
Regents of Higher Education to prescribe a school of law 
similar to the School of Law of the University of Oklahoma 
as a part of the standards of higher education of Langston 
University, and as one of the courses of study thereof 
(R. 40).

It was further stipulated between the parties that after 
the filing of this case, the Board of Regents of Higher 
Education had notice that this case was pending and met 
and considered the questions involved herein and had no 
unallocated funds on hand or under its control at the time 
with which to open up and operate a law school and has 
since made no allocation for such a purpose (R. 43).

A R G U M E N T .

I.

The refusal to admit plaintiff-in-error to the School 
of Law of the University of Oklahoma constitutes a 
denial of rights secured under the Fourteenth Amend­
ment.

A. Distinctions on the Basis of Race and Color Are 
Forbidden Under Our Laws.

One of the most firmly entrenched principles of Ameri­
can constitutional law is that discrimination by a state based 
on race and color contravenes the federal constitution. The 
13th, 14th and 15th Amendments were specifically added to 
the Constitution to give Negroes full citizenship rights and



5

to bar any future efforts to alter their status in that re­
gard.1 The Court stated in Strauder v. Virginia:

“ This is one of a series of constitutional pro­
visions having a common purpose, namely: securing 
to a race recently emancipated, a race that through 
many generations had been held in slavery, all the 
civil rights that the superior race enjoy. The true 
spirit and meaning of the Amendments * * * can­
not be understood without keeping in view the his­
tory of the times when they were adopted, and the 
general objects they plainly sought to accomplish. 
At the time when they were incorporated into the 
Constitution, it required little knowledge of human 
nature to anticipate that those who had long been 
regarded as an inferior and subject race would, when 
suddenly raised to the rank of citizenship, be looked 
upon with jealousy and positive dislike, and that 
state laws might be enacted or enforced to perpetu­
ate the distinctions that had before existed. Dis­
criminations against them had been habitual. It was 
well known that, in some States, laws making such 
discriminations then existed, and others might well 
be expected.”
* * * * * * * *

“  . . . [the 14th Amendment] was designed to 
assure to the colored race the enjoyment of all the 
civil rights that under the law are enjoyed by white 
persons, and to give to that race the protection of 
the General Government, in that enjoyment, when­
ever it should be denied by the States. It not only 
gave citizenship and the privileges of citizenship to 
persons of color, but it denied to any State the power 
to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provi­
sions by appropriate legislation.”  
* * * * * * * *

1 Flack, The Adoption of the Fourteenth Amendment (1908).



6

“ If this is the spirit and meaning of the Amend­
ment, whether it means more or not, it is to be con­
strued liberally, to carry out the purposes of its 
framers. It ordains that no State shall make or 
enforce any laws which shall abridge the privileges 
or immunities of citizens of the United States * * *. 
It ordains that no State shall deprive any person 
of life, liberty or property, without due process of 
law, or deny to any person within its jurisdiction the 
equal protection of the laws. What is this but declar­
ing that the law in the States shall be the same for 
the black as for the white; that all persons whether 
colored or white, shall stand equal before the laws 
of the States and, in regard to the colored race, for 
whose protection the Amendment was primarily de­
signed, that no discrimination shall be made against 
them by law because of their color? The words of 
the Amendment, it is true, are prohibitory, but they 
contain a necessary implication of a positive immun­
ity, or right, most valuable to the colored race—the 
right to exemption from unfriendly legislation 
against them distinctively as colored; exemption 
from legal discriminations, implying inferiority in 
civil society, lessening the security of their enjoy­
ment of the rights which others enjoy, and discrim­
inations which are steps towards reducing them to 
the condition of a subject race.” 2

The express guarantees against discrimination on the 
basis of race and color run only against the states, but 
these guarantees are considered so fundamental to our 
political and social health that even in the absence of 
express constitutional prohibitions, the federal govern­
ment is prohibited from making any classifications and dis­
tinctions on the basis of race and color. They are regarded

2 100 U. S. 303, 306, 307 (1879) ; see to same effect The Slaughter 
House Cases, 16 Wall. (U . S.) 36 (1873); E x parte Virginia, 100 
U. S. 339 (1879).



7

as arbitrary, unreasonable, constitutionality irrelevant and, 
therefore, violative of the 5th Amendment.3

The United States Supreme Court, and American courts 
in general, in giving life and substance to these abstract 
constitutional guarantees have been required to strike down 
statutes and governmental action in derogation thereof 
without regard to local racial customs and practices requir­
ing such color classifications.4

B. The Rational Basis for the Equal But Separate 
Doctrine Is That Although a State May Require 
Segregation, Equality Must Be Afforded Under 
the Segregation System.

History has proved that democracy can flourish only 
when its citizens are enlightened and intelligent. For this 
reason, the states, even though under no obligation to do so, 
have almost uniformly undertaken the task of providing free 
education through the elementary and high school level, 
and education through the college and professional level at 
minimum cost to the individual. Having voluntarily under­
taken to provide such opportunities, our Constitution and 
laws require that such opportunities be afforded to all per­
sons without regard to racial distinctions.5

3 Hircibayashi v. United States, 320 U. S. 81 (1943); Korematsu 
v. United States, 323 U. S. 214 (1944); E x parte Endo, 323 U. S. 
283 (1944); see also Steele v. Louisville and Nashville R. Co., 323 
U. S. 192 (1944) ; Tunstall v. Brotherhood of Locomotive Firemen, 
323 U. S. 210 (1944).

4 E x parte Virginia, 100 U. S. 339 (1879) ; Yick W o  v. Hopkins, 
118 U. S. 356 (1886) ; Buchanan v. Warley, 245 U. S. 60 (1917) ; 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) ; Pierre v. 
Louisiana, 306 U. S. 354 (1939); Hill v. Texas, 316 U. S. 400 
(1942); Alston v. Norfolk School Board, 112 F. (2d) 992 (C. C. 
A. 4th, 1940); cert. den. 311 U. S. 693 (1940); Smith v. Allwright, 
321 U. S. 649 (1944).

5 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938) ; see also Gong Lum v. 
Rice, 275 U. S. 78 (1927) ; Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 
405 (1874) ; People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232 
(1883); see also Mitchell v. United States, 313 U. S. 80 (1941); 
Plessy v. Ferguson, 163 U. S. 537 (1896).



8

Oklahoma along with sixteen other states and the Dis­
trict of Columbia has established an educational system on 
a segregated basis, with schools set aside for the exclusive 
attendance of Negroes.6 This enforced segregation has 
been regarded by some American courts as not in conflict 
with the requirements of the 14th Amendment as long as 
the facilities afforded are equal to those afforded whites.7 
The United States Supreme Court has never directly de­
cided whether this view constituted a proper interpreta­
tion of the Constitution but has given some indication that 
it is in agreement with this statement of the law.8

6 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia and West Virginia.

7 Johnson v. School Board, 166 N. C. 468, 82 S. E. 832 (1914); 
and cases cited in note 5, supra. Annotations on the question, 27 L. 
Ed. 836 and 44 L. Ed. 262.

8 In Plessy v. Ferguson, 163 U. S. 537 (1896) in sustaining the 
constitutionality of a Louisiana statute requiring intrastate railroads 
to furnish separate but equal coach accommodations for whites and 
Negroes, the United States Supreme Court cited with approval Ward 
v. Flood, People v. Gallagher, supra note 5 and Roberts v. City of 
Boston, 5 Cush (Mass.) 198 (1849) which held that a state could 
require segregation of the races in its educational system as long as 
equal facilities for Negroes were provided. In Gong Lum v. Rice, 
275 U. S. 78, 85 (1927) in passing upon the right of a state to clas­
sify Chinese as colored and force them to attend schools set aside for 
Negroes the Court assumed that the question of the right of a state to 
segregate the races in its educational system had been settled in favor 
of the state by previous Supreme Court decisions. In Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, 344 (1938) the Court said obiter 
dicta that right of a state to provide Negroes with educational advan­
tages in separate schools equal to that provided whites had been sus­
tained by previous Supreme Court decisions. In Mitchell v. United 
States, 313 U. S. 80 (1941) the Court continued to uphold the 
validity of the equal but separate doctrine as applied to transpor­
tation facilities. But in Buchanan v. Warley, 245 U. S. 60 (1917) a 
city ordinance which attempted to enforce residential segregation was 
struck down as violating the 14th Amendment, and, in general the 
Supreme Court has invalidated state action where it found that race 
or color was used as a criteria as evidenced by cases cited in note 4. 
The key to the difference in approach would seem to lay in Plessy v. 
Ferguson, supra, which involved transportation and used state cases 
upholding segregation in the state’s educational system to support 
argument that segregation in transportation was valid.



9

The apparent rationalization for this rule is that the 
states will provide equal educational opportunities for 
Negroes under a segregated system and that therefore such 
segregation does not amount to discrimination or a denial 
of equal protection within the meaning of the 14th Amend­
ment. Plaintiff-in-error contends that this “ equal but 
separate”  doctrine defeats the ends which the 14th Amend­
ment was intended to achieve. If the guarantees of this 
amendment are to be given life, substance and vitality, 
American courts will have to recognize that segregation 
itself amounts to an unlawful discrimination within the 
meaning of the 14th Amendment.

C. Equality Under a Segregated System Is a Legal 
Fiction and a Judicial Myth.

There is of course a dictionary difference between the 
terms segregation and discrimination. In actual practice, 
however, this difference disappears. Those states which 
segregate by statute in the educational system have been 
primarily concerned with keeping the two races apart and 
have uniformly disregarded even their own interpretation 
of their requirements under the 14th Amendment to main­
tain the separate facilities on an equal basis.

1. The General Inequities in Public Educational 
Systems Where Segregation Is Required.

Racial segregation in education originated as a device 
to “ keep the Negro in his place” , i. e., in a constantly in­
ferior position. The continuance of segregation has been 
synonymous with unfair discrimination. The perpetuation 
of the principle of segregation, even under the euphemistic 
theory of “ separate but e q u a l h a s  been tantamount to 
the perpetuation of discriminatory practices. The terms



10

“ separate”  and “ equal”  can not be used conjunctively 
in a situation of this kind; there can he no separate equality.

Nor can segregation of white and Negro in the matter 
of education facilities be justified by the glib statement 
that it is required by social custom and usage and generally 
accepted by the “ society”  of certain geographical areas. 
Of course there are some types of physical separation 
which do not amount to discrimination. No one would 
question the separation of certain facilities for men and 
women, for old and young, for healthy and sick. Yet in 
these cases no one group has any reason to feel aggrieved 
even if the other group receives separate and even pref­
erential treatment. There is no enforcement of an inferior 
status.

This is decidedly not the case when Negroes are segre­
gated in separate schools. Negroes are aggrieved; they are 
discriminated against; they are relegated to an inferior 
position because the entire device of educational segrega­
tion has been used historically and is being used at present 
to deny equality of educational opportunity to Negroes. 
This is clearly demonstrated by the statistical evidence 
which follows.

The taxpayers’ dollar for public education in the 17 
states and the District of Columbia which practice com­
pulsory racial segregation was so appropriated as to de­
prive the Negro schools of an equitable share of federal, 
state, county and municipal funds. The average expense 
per white pupil in nine Southern states reporting to the 
U. S. Office of Education in 1939-1940 was almost 212% 
greater than the average expense per Negro pupil.9 Only

9 Statistics o f the Education o f Negroes (A  Decade of Progress) 
by David T. Blose and Ambrose Caliver (Federal Security Agency, 
U. S. Office of Education, 1943). Part I, Table 6, p. 6.



11

$18.82 was spent per Negro pupil, while the same average 
per white pupil was $58.69.10

Proportionate allocation of tax monies is only one cri­
terion of equal citizenship rights, although an important 
one. By every other index of the quality and quantity of 
educational facilities, the record of those states where seg­
regation is a part of public educational policy clearly dem­
onstrates the inequities and second class citizenship such 
a policy creates. For example, these states in 1939-1940 
gave whites an average of 171 days of schooling per school 
term. Negroes received an average of only 156 days.11 The 
average salary for a white teacher was $1,046 a year. The 
average Negro teacher’s salary was only $601.12

The experience of the Selective Service administration 
during the war provides evidence that the educational in­
equities created by a policy of segregation not only deprive 
the individual Negro citizens of the skills necessary to a 
civilized existence and the Negro community of the leader­
ship and professional services it so urgently needs, but also 
deprive the state and nation of the full potential embodied 
in the intellectual and physical resources of its Negro citi­
zens. In the most critical period of June-July 1943, when 
the nation was desperately short of manpower, 34.5% of 
the rejections of Negroes from the armed forces were for 
educational deficiencies. Only 8% of the white selectees 
rejected for military service failed to meet the educational 
standards measured by the Selective Service tests.13

10 Ibid, Table 8.
11 Biennial Surveys of Education in the United States. Statistics 

of State School Systems, 1939-40 and 1941-42 (1944), p. 36.
12 Blose and Caliver, op. cit., supra note 9, Part I, p. 6, Table 7.
13 The Black and White of Rejections for Military Service. Mont­

gomery, Ala., American Teachers Association (1944), p. 5.



12

Lest there be any doubt that this generalization applies 
to Oklahoma as well, let us look at the same data for the 
same period with respect to this state. We find that 16.1% 
of the Negro rejections were for educational deficiency, 
while only 3% of the white rejections were for this reason.14

This demonstration of the effects of inequitable segre­
gation in education dramatizes one of the key issues which 
this Court must decide. Failure to provide Negroes with 
equal educational facilities has resulted in deprivations to 
the state and nation as well as to the Negro population. The 
Constitution establishes a set of principles to guide human 
conduct to higher levels. If the courts reject the theory of 
accepting the lowest common denominator of behavior be­
cause this standard is so blatantly detrimental to the indi­
vidual citizen, to the state, and to the nation as a whole— 
then they will be exercising the power which the Constitu­
tion has vested in them for the protection of the basic values 
of our society.

2. On the Professional School Level the Inequi­
ties Are Even More Glaring.

As gross as is the discrimination in elementary educa­
tion, the failure to provide equal educational opportunities 
on the professional levels is proportionately far greater. 
Failure to admit Negroes into professional schools has 
created a dearth of professional talent among the Negro 
population. It has also deprived the Negro population of 
urgently needed professional services. It has resulted in 
a denial of equal access to such services to the Negro popu­
lation even on a “ separate”  basis.

14 Ibid.



13

In Oklahoma, the results of the legal as well as the extra- 
legal policies of educational discrimination have deprived 
'the Negro population of professional services in the fields 
of medicine, dentistry and law. The extent of this depriva­
tion can best be judged by the following data, in which the 
figures represent one lawyer, doctor and dentist, respec­
tively, to the following number of white and Negro popula­
tion : 15 16

Profession White Negro
Law ______________ _____  643 6,494
Medicine __________ _____  976 2,165
Dentistry ________ _____ 2,646 7,675

That this critical situation is not peculiar to Oklahoma 
alone hut is an inevitable result of the 'policy of racial seg­
regation and discrimination in education is demonstrated 
by an analysis made by Dr. Charles H. Thompson.10 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In 
proportion to population these represented one phy­
sician to the following number of the white and Negro 
population, respecitvely:

Section White Negro
U. S______________  735 3,651
North ____ _______  695 1,800
South ____ _______  859 5,300
W est_____ _______  717 2,000
Mississippi _______  4,294 20,000

15 Based on data in Sixteenth Census of the United States: Popu­
lation, Vol. I ll , Part 4, Reports by States (1940).

16 Charles H. Thompson, “ Some Critical Aspects of the Problem 
of the Higher and Professional Education for Negroes,”  Journal of 
Negro Education (Fall 1945), pp. 511-512.

* To the nearest hundred.



14

“ A similar situation existed in the field of den­
tistry, as far as the 67,470 white and 1,463 Negro 
dentists were concerned:

Section White Negro
IT. S_________ _____  1,752 8,800f
North ______ ______  1,555 3,900f
South ____________  2,790 14,000f
W est_____ _______  1,475 3,900f
M iss._____________  14,190 37,000+

“ In proportion to population there are five times 
as many doctors and dentists in the country as a 
whole as there are Negro doctors and dentists; and 
in the South, six times as many. Even in the North 
and West where we find more Negro doctors and 
dentists in the large urban centers, there are two 
and one-half times as many white dentists and doc­
tors as Negro.

“ Law—In 1940 there were 176,475 white and 
1,052 Negro lawyers in the U. S. distributed in pro­
portion to population as follows:

Section White Negro
U. S. ......_________  670 12,230
North ... _________  649 4,000
South ___________  711 30,000
West ____________ 699 4,000
Miss. ___________-  4,234 358,000

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South; and 90 times as many in Mis­
sissippi. Even in the North and West there are six 
times as many white lawyers as Negro. With the 
exception of engineering, the greatest disparity is 
found in leuw.”  (Italics ours.)

f  To the nearest hundred or thousand. 
* To the nearest hundred or thousand.



15

The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. Doctors and dentists guard the health of their 
people. Lawyers guide their relationships in a complicated 
society. Engineers create and service the technology that 
has been bringing more and more good to more and more 
people. Teachers pass on skills and knowledge from one 
generation to another. Social service workers minister to 
the needs of the less fortunate groups in society and reduce 
the amount of personal hardship, deprivation, and social 
friction.

Yet the action of the lower Court in this case, quite 
aside from any legal considerations, lends the sanction of 
that Court to a series of extra-legal actions by which the 
various states have carried on a policy of discrimination in 
education. In Oklahoma, the 16 other states and the Dis­
trict of Columbia where separate educational facilities for 
whites and Negroes are mandatory, the provisions for 
higher education for Negroes are so inadequate as to de­
prive the Negro population of vital professional services.

The record of this policy of educational segregation and 
denial of professional education to Negroes is clear. In 
the 17 states and the District of Columbia in 1939-1940 the 
following number of states made provisions for the public 
professional education of Negro and white students: 17

Profession White Negro
Medicine _________ 15 0
Dentistry___________ 4 0
Law _______________ 16 1
Engineering ________ _ 17 0
Social service________________ 9 0
Library science _____ .... 13 1
Pharmacy __ .... 14 0

17 Based on data in National Survey o f Higher Education for  
Negroes, Vol. II, p. 15.



16

The result has been that the qualified Negro student is 
unable to obtain the professional education for which he 
may be fitted by aptitude and training.

Other sections of the country, too, practice discrimina­
tion against Negroes in professional schools by means of 
“ quotas”  and other devices.18 But only in the South is 
legal discrimination practiced and it is thus in the South 
that the Negro population suffers the greatest deprivation 
of professional services.

The record is quite clear, and the implications of the 
above data are obvious. There is another implication, how­
ever, wThich is not as obvious but is of almost equal impor­
tance in the long-range development of the Negro people. 
From the ranks of the educated professionals come the 
leaders of a minority people. In the course of their daily 
duties they transmit their skills and knowledge to the 
people they serve. They create by their daily activities

18 “ Wherever young Americans of ‘minority’ races and religions 
are denied, by the open or secret application of a quota system, the 
opportunity to obtain a medical, law or engineering education, apolo­
gists for the system have a standardized justification.

“ In their racial-religious composition, the apologists contend, the 
professions must maintain ratios which correspond to those found in 
the composition of the whole population. Were the institution of 
higher learning left wide open to ambition and sheer merit, they 
argue, the professions would be ‘unbalanced’ by a disproportionate 
influx of Catholics, Negroes and Jews.

“ Such racial arithmetic hardly accords with our vaunted prin­
ciples of democratic equality. In effect it establishes categories of 
citizenship. It discriminates against tens of millions of citizens by 
denying their sons and daughters a free and equal choice of profes­
sion. If a ratio must be imposed on the basis of race, why not on the 
pigmentation? Forcing a potentially great surgeon to take up some 
other trade makes sense only on the voodoo level of murky prejudice. 
It not only deprives the citizen of his legal and human rights but, no 
less important, it deprives the country of his potentially valuable ser­
vices.”— from “ Religious Prejudices in Colleges,”  by Dan W . Dodson. 
The American Mercury (July 1946), p. 5.



17

a better, more enlightened citizenship because they trans­
mit knowledge about health, personal care, social relation­
ships and respect for and confidence in the law.

The average Negro in the South looks up to the Negro 
professional with a respect that sometimes verges on awe. 
It is frequently the Negro professional who is able to artic­
ulate the hopes and aspirations of his people. The defen- 
dants-in-error, in denying to the plaintiff-in-error access to 
equal educational facilities on the professional level within 
the State, also deny to the Negro population of Oklahoma 
equal access to professional services and deprive it of one 
of the most important sources of guidance in citizenship. 
This denial is not only injurious to plaintiff-in-error, and 
to other Negro citizens of the State, but adverse to the 
interests of all the citizens of the State by denying to them 
the full resources of more than 168,849 Negro citizens.

D. The Requirements of the 14th Amendment Can 
Be Met Only Under an Unsegregated Public Edu­
cational System.

The above recited data show that equal educational facil­
ities are not maintained in those states, including Okla­
homa, where segregation is required. More than that it is 
impossible for equal facilities to be maintained under a 
segregated system. The theory that segregation is consti­
tutional as long as the facilities provided for Negroes are 
equal to those provided for whites is a proper interpreta­
tion of the federal constitution only if the rationale on 
which the rule is based is correct. In those areas where 
segregation is enforced in education, the states concerned 
are least able economically to afford the establishment of 
equal facilities in all respects that are required if this 
theory is to be complied with. The facts demonstrate that 
they could not provide such equal facilities even if they



18

were so disposed to do so. It is clear, therefore, that the 
rationale for this “ equal but separate rule”  of law is fal­
lacious. A fortiori, the theory is erroneous and should be 
discarded in light of the actualities of the situation.

Segregation constitutes a denial of the equal protection 
of the laws and is violative of the Constitution and the laws 
of the United States. Despite the line of cases in support 
of the “ separate but equal”  theory, this Court is under an 
obligation to re-examine the rule and the reasons on which 
it is based in the light of present day circumstances and to 
adopt and apply a rule which conforms with the require­
ments of our fundamental law.

E. Even Under “ Equal But Separate” Doctrine, the 
Action of Defendants-in-Error Violated the Four­
teenth Amendment.

No provision for the legal education of Negroes has 
been made or is being made in the State of Oklahoma. 
Plaintiff-in-error, possessing all the scholastic, moral and 
legal qualifications therefor, applied for admission to the 
only law school maintained by the State for the legal edu­
cation of its citizens. Defendants-in-error refused her ad­
mission on the grounds that the state policy requires the 
separation of white and Negroes in the educational sys­
tem in the State of Oklahoma. Plaintiff-in-error contends 
that however free Oklahoma may be in adopting and main­
taining a policy locally designed to meet its “ racial prob­
lems” , this policy must conform to the requirements of the 
federal constitution. Since the University of Oklahoma 
Law School is the only law school maintained by the State, 
plaintiff-in-error must be admitted to said school if the State 
is to fulfill its obligation to plaintiff-in-error under the 14th 
Amendment and under its own Constitution.



19

This is true under either theory discussed above. Under 
the theory of plaintiff-in-error that segregation in Okla­
homa’s educational system violates the federal constitu­
tion, the maintenance of a school of law for the exclusive 
attendance of white persons is unconstitutional. Plaintiff- 
in-error and other Negro applicants must be admitted to 
such school if they are to enjoy the rights and benefits guar­
anteed under the Fourteenth Amendment. Under the 
theory of defendants-in-error that segregation does not vio­
late our fundamental law, as long as the facilities set aside 
for Negroes are equal to those set aside for whites, it is 
clear that the State cannot set up a law school exclusively 
for whites without at the same time making similar provi­
sions for Negroes.10 Since this has not been done in Okla­
homa, the right of plaintiff-in-error to be admitted to the 
law school of the state university is undenied. The refusal 
of defendants-in-error to admit her to the school solely on 
the basis of race and color violates her rights under the 
Fourteenth Amendment.

II.

The application for a writ of mandamus to compel 
the defendant-in-error to admit plaintiff-in-error to the 
Law School of the University of Oklahoma was proper 
and should have been granted by the court below.

A. Mandamus Should Issue as Prayed For.

The Court below in denying application of plaintiff-in- 
error for a writ of mandamus relied upon Sharpless v. 
Buckles et al., 65 Kan. 838, 70 Pac. 886 (1902); State ex rel. 
Hunter v. Winterrowd, 174 Ind. 592, 92 N. E. 650 (1910); 19

19 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also other 
cases cited in note 5, supra.



20

Comley ex rel. Roivell v. Boyle, 115 Conn. 406, 162 Atl. 
(Conn.) 26 (1932), where the courts in question refused to 
make a preliminary determination of the constitutionality 
of state statutes before deciding whether a writ of man­
damus should issue. The Court in these instances held that 
a mandamus action was not proper unless the applicant had 
a clear legal right to the thing demanded, and a duty on the 
part of the defendant existed to do the acts required in the 
absence of any other adequate remedy.

In Sharpless v. Buckles, supra, a state statute permitted 
persons engaged in the railway express service who were 
outside the district at the time an election took place to 
vote in said election and to have their ballots counted along 
with those cast in the district. An election was held. Votes 
outside the district were cast in accordance with the statute 
and counted by the Board of Commissioners along with 
other ballots cast. Application was made for a peremptory 
writ of mandamus to compel the Board of Commissioners 
to reconvene, recount the vote and to exclude the ballots 
cast outside the election district. The Court denied the 
writ on the grounds that the Board of Commissioners were 
merely under a duty to open the returns, determine the 
genuineness of the ballots cast and certify the results. The 
Court held that the Commissioners had no duty or authority 
to determine the constitutionality of the statute permitting 
absentee voting by persons engaged in the railway service 
and that the Court could not by mandamus action impose 
upon officials a duty beyond that which the law established.

In Comley ex rel. Rowell v. Boyle, supra, zoning regu­
lations in the City of Stamford required a person to obtain 
a permit to erect any structure within the city limits and 
provided that no permit should issue unless the proposed 
building complied with the law, ordinances and regulations



21

applicable thereto. The Building Commission was given 
authority to vary or modify any provision or regulation of 
the Building Code where it was found that it was impossible 
to comply with the strict letter of those provisions. Appli­
cation was made to build a structure with material ad­
mittedly prohibited under the Building Code. Relator 
sought to have the Building Commission permit a variation 
in the provisions of the Code in order to permit him to 
erect the proposed building. This being refused, relator 
petitioned for a writ of mandamus to compel the Building 
Commission to permit him to erect the building proposed. 
The court refused the writ on the grounds that the court 
could not disturb the proper exercise of discretion on the 
part of public officials, and it was held that mandamus 
would not lie except to force a public official to exercise a 
mandatory duty and where the party seeking the writ had 
a clear legal right to the thing demand and no sufficient 
or adequate remedy.20

These cases do not bar the right to writ of mandamus 
in this case. Plaintiff-in-error has a clear legal right to 
obtain a legal education in the State of Oklahoma as long 
as provisions for such education is made for white persons. 
Once the state undertakes to provide educational facilities 
for white persons, it is under a legal duty to make pro­
vision at the same time for the education of Negroes.21 The 
constitution and statutes of Oklahoma which require the

20 In State ex rel. Hunter v. Winterrowd, supra, the Court said:
“ The writ will issue . . .  as a matter of right, in favor of 

a petitioner who shows a clear legal right to the thing de­
manded and an imperative duty on the part of respondent to 
do the acts required in the absence of any other adequate 
remedy.”  But compare Welch v. Swasey, 193 Mass. 364, 
79 N. E. 745 (1907).

21 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) and cases cited 
in notes 5 and 8, supra.



22

separation of the races in the public school system must be 
read and interpreted in the light of constitutional require­
ments.22 Under any view of the law, as pointed out in the 
first part of this brief, the state must admit plaintiff-in­
error to the law school of University of Oklahoma if it has 
made no other provision for the legal education of Negroes. 
Segregation statutes can only be constitutional if equal 
facilities are provided. Even under the “ equal but sepa­
rate”  theory, the state would be under an obligation either 
to afford Negroes equal educational facilities in a school 
set aside exclusively for them or to admit them to the school 
set aside for whites. A  state cannot use a segregation 
statute as a means of avoiding its mandatory obligation 
that Negroes be afforded the equal protection of the laws.

The only adequate remedy herein available for plaintiff- 
in-error is the remedy available by the writ of mandamus. 
The right of all Negroes in Oklahoma, to a legal education, 
accrued and vested when the State established and main­
tained the School of Law at University of Oklahoma for 
the legal education of whites. Plaintiff-in-error asserted 
this right upon her application for admission to School of 
Law, University of Oklahoma, and the obligation of the 
State to make provision for her legal education became an 
immediate obligation which could not be postponed. Plain­
tiff-in-error now has a right to a legal education as long as 
the State is making provisions for the legal education of

22 Sec. 3, Art. 13 of Oklahoma Constitution provides for impar­
tial maintenance of separate schools; 70 Okla. Stat. 1941, Sec. 363 
provides for separate schools for training of teachers; 70 Okla. Stat. 
1941, §§451-470 contain penal provisions; 70 Okla. Stat. 1941, 
§§ 1591, 1592, 1593 provide for out of state scholarships for Negroes 
who desire instruction on any subject taught only in a state insti­
tution maintained exclusively for whites. That this type of provision 
does not satisfy the constitutional requirements was settled in Mis­
souri ex rel. Gaines, supra.



23

whites. Having the requisite lawful qualifications, and 
there being no law school provided for Negroes, defendants- 
in-error were without constitutional or statutory authority 
to refuse to admit her to the Law School of the University 
of Oklahoma. Whatever doubts might have existed on this 
question were resolved by the United States Supreme 
Court in 1938 in the case of Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337 (1938).

Oklahoma Statutes, requiring the segregation of the 
races in the public school system, at the very least, can 
only satisfy the Fourteenth Amendment if implicit in 
such statutes is the requirement that the equal facilities be 
afforded Negroes in separate schools.23 Barring this, Ne­
groes must be admitted to the school set aside for exclusive 
attendance of whites. Statutes must be read and inter­
preted by the courts in a manner which will save their 
constitutionality wherever possible.24 25 These statutes, there­
fore, cannot be regarded as rigid and inflexible prohibitions 
against Negroes and whites attending the same schools but 
only necessitating separation where Negroes are specifi­
cally afforded equal facilities. Public officers of the state, 
therefore, are under a duty to admit Negroes to schools set 
aside for whites if no school is maintained for Negroes.20

If the statutes in question impose the inflexible duty on 
the defendants-in-error not to permit a qualified Negro 
applicant to avail himself of the opportunities for educa­

23 Missouri ex rel. Gaines v. Canada, supra. Pearson v. Murray, 
supra; Ward v. Flood, supra,

24 National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 
301 U. S. 1 (1936);Blodgett v. Holden, 275 U. S. 142 (1928); 
Federal Trade Commission v. American Tobacco Co., 264 U. S. 298 
(1924); Panama R. Co. v. Johnson, 264 U. S. 375 (1924); Mis­
souri P. R. Co. v. Boone, 270 U. S. 466 (1926); Richmond Screw 
Anchor Co. v. United States, 275 U. S. 331 (1928).

25 Missouri ex rel. Gaines v. Canada, supra; Pearson v. Murray, 
supra.



24

tion afforded by the State in the same institution with 
whites, where no such facilities are provided for Negroes, 
the statutes clearly fail to meet the minimum requirements 
of the Fourteenth Amendment and are unconstitutional.26 
Either the defendants-in-error are obligated to admit plain- 
tiff-in-error to the school of law of Oklahoma University 
or the statutes, under which they rely to keep plaintiff-in­
error from attending said school, are unconstitutional. No 
other conclusion is possible. If the constitutionality of 
Oklahoma segregation law are to be sustained, their pro­
visions can only apply where equal facilities are afforded 
Negroes in separate schools.

B. Prior Demand on Board of Higher Education to 
Establish a Law School at Langston University 
Is Not a Prerequisite to This Action.

It is contended by defendants-in-error that no applica­
tion was made to the Board of Higher Education of the 
State for the establishment of a school of law at Langston 
University, a college maintained by the State for the educa­
tion of Negroes (R. 30).27 That no such application had 
been made is one of the agreed statements of fact (R. 43).

26 Pearson v. Murray, supra; Missouri ex rel. Gaines v. Canada, 
supra, and other cases cited in note 5.

27 70 Okla. Stat. 1941 §§1451 to 1509, as amended in 1945, 
relate to Langston University. § 1451, supra, as amended by 
implication in 1945, is as follows: “ The Colored Agricultural and 
Normal University of the State of Oklahoma at Langston in Logan 
County, Oklahoma. The exclusive purpose of such school shall be 
the instruction of both male and female colored persons in the art of 
teaching, and the various branches which pertain to a common school 
education; and in such higher education as may be deemed advisable 
by such board and in the fundamental laws of this state and of the 
United States, in the rights and duties of citizens, and in the agri­
cultural mechanical and industrial arts.”



25

Such, a demand upon this Board did not constitute a pre­
requisite to the maintenance of this action.

In the instant case there is no dispute as to the avail­
ability of provisions for the legal education of white citizens 
of the State desiring same as of the date plaintiff-in-error 
duly applied and was denied admission to the first year 
class of the School of Law of the University of Oklahoma. 
The State, once having established a law school for one 
portion of its citizenry, is under a constitutional mandate 
to make equal provision for all, Negro as well as white.28 
When plaintiff-in-error asserted her right, to a legal edu­
cation by seeking admission to the University of Oklahoma, 
no greater burdens or duties could be placed upon or re­
quired of her than of white persons seeking to afford them­
selves of the facilities provided by the State.29 Nor can 
it be asserted here that failure of plaintiff-in-error to per­
form this additional burden enabled the State to avoid its 
plain duty to provide her with legal education on equal 
footing with that provided for whites.

28 Cases cited in note 5, supra.
29 “ It is no answer to say that the colored passenger, if sufficiently 

diligent and forehanded, can make their reservations so far in advance 
as to be assured of first-class accommodations. So long as white 
passengers can secure first-class accommodations on the day of travel 
and the colored passengers cannot, the latter are subjected to inequali­
ties and discrimination because of their race” Mitchell v. United 
States, 313 U. S. 80 at 96 (1941).

As stated by the U. S. Supreme Court in a case involving dis­
crimination in transportation if he is denied . . . , under
the authority of a state law, a facility or convenience . . . which, under 
substantially the same circumstances, is furnished to another . . . , 
he may properly complain that his constitutional privilege has been 
invaded” McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 160 
(1914).

“ Whatever system it adopts for legal education now must fur­
nish equality of treatment now. . . .  If those students are to be 
offered equal treatment in the performance of the function, they 
must, at present, be admitted to the one school provided.” Pearson 
v. Murray, supra.



26

The Constitution and laws of the United States and 
State of Oklahoma require that equal facilities be afforded 
all citizens of the State The duty of making such equal 
provisions was delegated to the Board of Regents of Higher 
Education. This duty is incumbent upon the Board by 
virtue of their office.30 It was not necessary, therefore, that 
the plaintiff-in-error make a prior demand upon this Board 
to perform its lawful duty before she may request man­
damus to obtain her lawful right to a legal education.31

30 Art. 13a, Secs. 1 & 2, Okla. Constitution.
31 “ The argument in support of the proposition that a formal de­

mand and refusal must be shown, is based upon the assumption that 
the duty here sought to be enforced is of a private nature, affecting 
only the right of realtor, the law being, that in such a case a demand 
is necessary to lay the foundation for relief by mandamus. If, on 
the contrary, the duty . . . is a public duty, resting upon respondent 
by virtue of their office, it is equally well settled that no such demand 
and refusal are necessary. . . . The duty here sought to be enforced 
is not of a private nature, nor is the right demanded by relator 
merely an individual right, within the meaning of the rule announced. 
By the statutes of this State, the duty of providing schools for the' 
education of all children between the ages of six and twenty-one in 
their district, is imposed upon respondents. . . . The duty thus im­
posed upon respondents is incumbent upon them by virtue of their 
office. In such case it has been well said, ‘the law itself stands in 
the place of a demand, and the neglect and omission to perform the 
duty stands in the place of a refusal, or in other words, the duty 
makes the demand, and the omission is the refusal.’ ”  Peo. ex rel. 
John Pear v. Bd. of Education, 127 111. 613, 625 (1889).

“ Decisions that there must be an express and distinct demand or 
request to perform must be confined to such cases (o f a private 
nature) where, however, the duty is of a purely public nature . . . , 
and where there is no one person upon whom either a right or duty 
devolves to make a demand or performance and express demand or 
refusal is not necessary.” Merrill, “ Law of Mandamus” (1892) pp. 
277 and 278.

“ Whatever public officers are empowered to do for the benefit of 
private citizens the law makes it their duty to perform whenever 
public interest or individual rights call for the performance of that 
duty.” United States v. Saunders, 124 Fed. 124, 126 (C. C. A. 8th, 
1903) ; see also Bd. of County Commrs. v. New Mexico ex rel. Coler, 
215 U. S. 296, 303 (1909) ; Northern Pacific RR Co. v. Washing­
ton, 142 U. S. 492, 508 (1891).



27

It is axiomatic that the law will not require an individual 
to do a vain and fruitless act before relief from a wrong 
will be granted.32 This general rule applies in the instant 
case as the demand alleged to be prerequisite to the grant­
ing of relief would have been unavailing, fruitless and 
vain33 as after the filing of this cause the Board of Regents 
of Higher Education, having knowledge thereof, met and

32 “ The law does not require a useless thing . . . the law never 
demands a vain thing, and when conduct and action of the officer is 
equivalent to a refusal to perform the duty desired, it is not neces­
sary to go through the useless formality of demanding its perform­
ance.” Merrill, “ Law of Mandamus” (supra) at 279.

“Equity does not insist on purposeless conduct and disregards 
mere formalities,”  49 Am. Jur. 167.

“ Demand is not, of course, necessary where it is manifest it would 
be but an idle ceremony.” Ferries, “ Law of Extraordinary Rem­
edies” (1926), p. 228. City o f Port Townsend v. First Natl. Bank, 
241 Fed. 32 (C. C. A. 9th, 1917); McGillvray Const. Co. v. Hos­
kins, 54 Cal. App. 636, 202 Pac. 677 (1921) ; Pugsley v. Sellmeyer, 
150 Ark. 247, 250 S. W . 538 (1923) ; United States v. Saunders, 124 
Fed. 124 (C. C. A. 8th, 1903).

“ . . .  if the defendant has shown by his conduct that he does not 
intend to perform the act . . . , it would be a work of supererogation 
to require that a demand should be made for its performance. Here 
the only effect of issuing the writ of mandamus is to require the 
authorities of the town to do what by law they are obliged to do . . . 
it seems . . .  to be proper and reasonable and nothing more than the 
Relator has a right to claim of the court, that an order should be 
issued requiring them to do what the law says, in such a case as this, 
they must do.”  United States ex rel. Aetna Ins. Co. v. Bd. etc. of 
Toum of Brooklyn, 8 Fed. 473, 475 (N. D. 111. 1881).

33 Plaintiff’s Exhibit “ 2”— the Board empowered to make sepa­
rate provision for Relator or other colored citizens had no funds 
available for this purpose. Even if they had available funds it would 
have been many months before such a school could have been estab­
lished (R. 43).

The fruitlessness of such a demand receives support from the 
failure of this Board to take any such action subsequent to having 
notice of Relator’s desire for a legal education had they intended to 
fulfill their legal obligation to make provisions for Negro students 
desiring legal education by establishing a separate school. Such 
should have been done immediately upon having notice thereof 
brought to their attention (R. 43).



28

considered the questions involved therein; had no unallo­
cated funds in its hands or under its control at that time 
with which to open up and operate a law school and has 
since made no allocation for that purpose; that in order to 
open up and operate a law school for Negroes in this State, 
it will be necessary for the Board to either withdraw exist­
ing allocation, procure moneys, if the law permits, from the 
Governor’s contingent fund, or make an application to the 
next Oklahoma legislature for funds sufficient not only to 
support the present institutions of higher education but to 
open up and operate said law school; and that the Board 
has never included in the budget which it submits to the 
Legislature an item covering the opening up and operation 
of a law school in the State for Negroes and has never been 
requested to do so (R. 43).

Conclusion.

For the reasons hereinbefore discussed plaintiff-in-error 
asserts that her constitutional right to equal protection of 
the laws can only be protected by her admission to the School 
of Law of the University of Oklahoma and that under any 
view of the constitutional principles involved, this conclu­
sion is inescapable. Her rights to a legal education now, 
and not at some future time, is the only issue before this 
Court. That right can only be enforced by the issuance of 
the writ prayed for in her petition to compel defendants-in- 
error to admit her to the School of Law of Oklahoma 
University.



29

W herefore it is respectfully submitted that the judg­
ment of the Court below is in error and should be reversed.

A mos T. H all

107% N. Greenwood Avenue 
Tulsa, Oklahoma

T htjrgood M arshall 
R obert L. Carter

20 West 40th Street 
New York, N. Y.

Attorneys for Plaintiff-in-error

F ranklin H. W illiams 
New York, N. Y.

Of Counsel



212 [ 5 6 11]

L awyers P ress, I nc., 165 William St., N. Y. C .; ’Phone: BEekman 3-2300