Florida v. Board of Control Petition for Writ of Certiorari to the Supreme Court of the State of Florida

    SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1951

No. 325

STATE OF FLORIDA EX REL VIRGIL D. HAWKINS,
ET AL.,

vs.
Petitioners,

BOARD OF CONTROL, ET AL.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF FLORIDA

R obert L. Carter, 
T hurgood M arshall, 

Counsel for Petitioners.
J ack Greekberg,
H orace H il l ,

Of Counsel.



OCTOBER TERM, 1951

SUPREME EOURT DF THE UNITED STATES

No. 325

STATE OF FLORIDA EX EEL VIRGIL D. HAWKINS,
ET AL.,

Petitioners,
vs.

BOARD OF CONTROL, ET AL.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF FLORIDA

To the Honorable, the Chief J%istice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:
Petitioners pray that a writ of certiorari issue to review 

the judgments of the Supreme Court of Florida, entered in 
the above-entitled cases on June 15, 1951.

Opinions Below

Opinions of the Supreme Court of Florida were entered 
on August 1, 1950, and on June 15, 1951. The August 1,



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1950 and June 15, 1951 opinions in Stale ex rel Hawkins v. 
Board of Control are reported in 47 So. 2d 608, (R. 25) 1 
and in 53 So. 2d 116, respectively (R. 40); in State ex rel 
Boyd v. Board of Control, 47 So. 2d 619, and 53 So. 2d 120, 
respectively; in State ex rel Lewis v. Board of Control, 47 
So. 2d 617, and 53 So. 2d 119; in State ex rel Finley v. 
Board of Control, 47 So. 2d 620 and 53 So. 2d 119; in State 
ex rel Maxey v. Board of Control, in 47 So. 2d 618, and 53 
So. 2d 119.

Jurisdiction

Tlie Supreme Court of Florida on June 15, 1951, denied 
petitioners’ motions for peremptory writs of mandamus and 
for further relief as provided in its orders of August 1, 
1950 (R. 40). Jurisdiction of this Court is invoked under 
Title 28, United States Code, Section 1257(3). At each and 
every stage of these proceedings, in the motions for 
alternative writs of mandamus, in the alternative writs 
themselves, in the motions for peremptory writs of man­
damus filed on January 19, 1950 (R. 24), and in the motions 
for peremptory writs of mandamus and for further relief 
filed on May 16, 1951 (R. 39), petitioners grounded their 
claims in the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States. 
Throughout these proceedings, petitioners have raised, 
relied upon and preserved the federal questions which 
are brought before this Court in this petition.

Questions Presented

1. Can the State refuse to admit petitioners to the Uni­
versity of Florida solely because of race and color for the

1 All record citations are to the record in the Hawkins ease since the 
printing of the other records was not completed at the time this petition 
was sent to the printers. The only difference in the cases are the names 
of petitioners.



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pursuit of graduate education and training in law without 
violating petitioners’ rights to the equal protection of the 
laws as guaranteed under the Fourteenth Amendment to 
the Constitution of the United States.

2. On the basis of a resolution of the Board of Control 
ordering the establishment at the Florida A & M College 
for Negroes of the courses which petitioners seek to pursue 
and which provides for petitioners’ admission to the Uni­
versity of Florida on a segregated basis in the event the 
courses desired are not available at Florida A & M College 
at the time petitioners seek to enroll therein, especially 
where the answers filed conclusively show that the courses 
ordered established at Florida A & M College were not in 
fact in actual operation, can the State of Florida avoid its 
constitutional obligation of immediately admitting peti­
tioners to the University of Florida.

Statement

The cases of State ex rel Hawkins, State ex rel Lewis, 
State ex rel Boyd, State ex rel Finley and State ex rel 
Maxey v. Board of Control were brought in the court below 
as separate and independent causes. All five cases involve 
the same questions and were disposed of in the same manner 
in the court below. One petition covering all five cases, 
therefore, is being filed in this Court.

On April 4, 1949, petitioners made due and timely appli­
cation for admission to the University of Florida, a public 
institution maintained and operated by the State for the 
higher education of its citizenry. Virgil Hawkins and Wil­
liam T. Lewis applied for admission to the School of Law; 
Rose Boyd for admission to the School of Pharmacy; Oliver 
Maxey for courses leading to a graduate degree in Chemical 
Engineering; and Benjamin Finley for courses leading to a 
graduate degree in agriculture. As of the time of their



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respective applications, and as of now, petitioners were and 
are fully qualified in every legal respect for admission to 
the University of Florida. Moreover, they would have been 
admitted without question but for the fact that they are 
Negroes.

Their applications were referred to the Board of Control, 
respondents here, which governs and controls the entire 
university system of the State of Florida. On May 13, 1949, 
petitioners met with the Board of Control. At this meeting 
they were advised that the only state institution in Florida 
where the courses of study they desired could be pursued 
was at the University of Florida, but that in view of the 
laws of the state they could not be admitted to the Uni­
versity of Florida since it was maintained exclusively for 
white persons. The Board offered to pay petitioners’ tui­
tions to institutions of their choice outside the state (R. 
16-17).

Whereupon, petitioners instituted the instant action by 
filing petitions for alternative writs of mandamus in the 
Supreme Court of Florida (R. 1). These petitions were 
granted on June 10, 1949 (R. 4). Respondents’ motions to 
quash were denied on December 8, 1949 (R. 9), and on 
January 7, 1950 the respondents filed their answers (R. 9).

Respondents admitted that petitioners were refused ad­
mission to the University of Florida solely because they are 
Negroes. It was admitted that at the time of petitioners’ 
applications that the University of Florida was the only 
state institution offering courses in law, graduate agricul­
ture, pharmacy and chemical engineering. The answers 
further alleged that authorization had been given by the 
Board of Control, in the.form of a resolution dated Decem­
ber 21, 1949 for Florida A & M College for Negroes to 
provide the courses of study which petitioners sought to 
pursue (R. 21). The Board resolution recited that if the 
courses desired were not available at Florida A & M College,



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when petitioners made application for admission thereto, 
and in the event the offer of out-of-state aid to petitioners 
should be held not to satisfy the state’s constitutional obli­
gations, petitioners would be admitted temporarily to the 
University of Florida on a segregated basis until such time 
as courses in question became available at Florida A & M 
College (R. 22).

On January 19, 1950, petitioners filed motions for per­
emptory writs of mandamus notwithstanding respondents’ 
answers. The court held these petitions to be in the nature 
of demurrers in that they admitted the truth of respondents’ 
allegations of fact. The court held that for the purpose of 
decision on petitioners’ motions for peremptory writs of 
mandamus notwithstanding respondents’ answers, the 
allegation by the Board of Control that as of December 21, 
1949, it had ordered the establishment of Schools of Law, 
Pharmacy, Graduate Agriculture and Chemical Engineer­
ing at Florida A & M College and had ordered reactivation 
of the necessary effort to secure equipment and personnel 
and offered to temporarily admit petitioners to the Uni­
versity of Florida, on a segregated basis, until such time as 
these schools were actually in operation at the Negro Col­
lege sufficiently satisfied the state’s constitutional obligation 
to furnish equal educational opportunities (R. 32-38). The 
court refused, however, to enter a final order and retained 
jurisdiction of the cases in order to permit either peti­
tioners or respondents to come before the court at some 
later date to seek whatever further relief might then be 
warranted (R. 38).

Petitioners reapplied to the University of Florida for the 
courses desired on August 7, 1950. On May 16, 1951, not 
having been admitted to or enrolled in any institution for 
the courses desired, petitioners filed motions for peremp­
tory writs of mandamus and for further relief in accord­



6
ance with the court’s opinion of August 1, 1950. On June 
15, 1951, these motions were denied (R. 40). Whereupon, 
petitioners bring the causes here.

Specification of Error

1. The court erred in refusing- to grant petitioners’ 
motions for peremptory writs of mandamus filed on Jan­
uary 19, 1950 when respondents’ answers clearly showed 
that courses petitioners desired were available only at the 
University of Florida.

2. The court erred in refusing to grant petitioners’ 
original motions for peremptory writs of mandamus not­
withstanding respondents’ answers where the December 21, 
1949, resolution, on which respondents rely, clearly showed 
that no courses in law, chemical engineering, graduate agri­
culture and pharmacy were actually available or in opera­
tion at Florida A & M College for Negroes.

3. The court erred in refusing to issue a decree ordering 
petitioners immediate admission to the University of 
Florida subject only to the same rules and regulations 
which are applicable to all other persons.

4. The court erred in refusing to grant petitioners ’ subse­
quent motions for peremptory writs of mandamus and for 
further relief filed in May 1951 in view of the fact that 
between the date of its opinion on August 1, 1950 and the 
date of the filing of petitioners’ motions on May 16, 1951, 
petitioners had not been provided with educational oppor­
tunities of any nature while the courses they were qualified 
to pursue were being offered white students at the Univer­
sity of Florida.

Reasons for Allowance of the Writ

1. The December 21, 1949 resolution of the Board of 
Control, which the Florida Supreme Court held to afford



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petitioners equal protection of the laws, reads in part as 
follows:

. . there is hereby established, at the Florida Agri­
cultural and Mechanical College for Negroes, schools 
of law, mechanical engineering, agriculture at graduate 
level and pharmacy at graduate level; and qualifica­
tions for admission to said courses shall be the same as 
those required for admission to said courses at other 
State institutions of higher learning in the State of 
Florida; . . .

“ . . . efforts to acquire the necessary personnel, 
facilities, and equipment for such courses be re­
activated and diligently prosecuted, with the view of 
installing said personnel, facilities, and equipment for 
such courses at the Florida Agricultural and Mechani­
cal College for Negroes, at Tallahassee, Florida, at the 
earliest date possible, thereby to more fully comply 
with the constitution and laws of the State of Florida; 
and that, in the meantime, and while diligent prepara­
tion is being made to physically set up said schools and 
courses at the “ Florida Agricultural and Mechanical 
College for Negroes, at Tallahassee, Florida, further 
effort to be made to arrange with said applicants for 
out-of-state scholarships or other arrangements agree­
able to them, equal to their reasonable individual needs 
and affording them full and complete opportunity to 
obtain the education for which they have applied, 
where obtainable, at institutions other than Florida 
state operated institutions of learning for white stu­
dents, and under circumstances and surroundings fully 
as good as may be offered at any State operated insti­
tution of higher learning in the State of Florida;

“ . . .  in the event the court should hold that the fore­
going provisions are insufficient to satisfy the lawful 
demands of said applicants, that temporarily, and only 
until completion of such acquisition of personnel, facili­
ties and equipment for installation at the Florida Agri­
cultural and Mechanical College for Negroes, at Talla­
hassee, comparable to those in institutions of higher 
learning of the State established for white students,



8

the Florida Agricultural and Mechanical College for 
Negroes shall arrange for supplying said courses to its 
enrolled and qualified students at a Florida state oper­
ated institution of higher learning, where said courses 
may be given, and where the instructional personnel 
and facilities of such institution in the requested 
courses shall be provided and used for the education of 
said applicants at such times and places, and in such 
manner, as the latter institution may prescribe; and 
the authorities of such last described state operated 
institution of higher learning shall cooperate in making 
such arrangements, to the end that there shall he avail­
able to said students of the Agricultural and Mechani­
cal College for Negroes, substantially equal oppor­
tunity for education in said courses as may be provided 
for white students under like circumstances. In pro­
viding such education, the authorities of both institu­
tions shall at all times observe all requirements of the 
laws of the State of Florida in the matter of segrega­
tion of the races, etc . . . ” (R. 22).

This resolution clearly shows that no courses in law, 
graduate agriculture, pharmacy or chemical engineering 
were actually being offered at Florida A & M College. 
Hence, no reliance whatsoever could possibly be placed by 
respondents on the state’s segregation laws, even assuming, 
as did the court below, that the Plessy v. Ferguson, 163 
U. S. 537, doctrine of “ separate but equal” governed the 
disposition of petitioners’ claims. Petitioners were un­
questionably entitled to admission to the University of 
Florida, it being the only state institution actually offering 
the courses they desired to pursue. Missouri ex rel Gaines 
v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 
U. 8. 631. The decision of the court below that the resolu­
tion of December 21, 1949 afforded petitioners equal pro­
tection of the laws is in further direct conflict with the



9
Sipuel-ca.se where this Court held that Negro applicants 
must be furnished educational opportunities as soon as such 
facilities are made available to white persons.

2. The practice of any form of segregation based on race 
and color at the professional and graduate school level of 
state universities violates the equal protection clause of 
the Fourteenth Amendment, Sweatt v. Painter, 339 U. S. 
629; McLaurin v. Board of Regents, 339 U. S. 637; Wilson 
v. Board of Supervisors, 94 L. Ed. (Adv. Op.) 200; Mc- 
Kissich v. Carmichael, 187 F. 2d 949 (CCA 4th 1951), cert, 
den. — U. S. —, June 4, 1951. Thus the approval by the 
court below of the December 21, 1949 resolution, which at 
best would permit petitioners ’ temporary admission to the 
University of Florida on a segregated basis, is in direct 
conflict with these cited cases.

It should be pointed out that in the Sweatt case, where 
the segregated Negro law school was held not to afford 
petitioner equal educational opportunities, that the law 
school had been in operation for several years; that in the 
Wilson case a Negro law school had been functioning at 
Southern University in Louisiana for at least five years; 
and that in the McKissick case the law school at the North 
Carolina College for Negroes had been in continuous oper­
ation since 1939. Yet all three schools were found inferior 
to the law school operated at the main State university. 
Here, on the other hand, there wasn’t even a semblance of a 
law school or graduate school but merely a directive to 
reactivate and diligently prosecute efforts to procure neces­
sary equipment, personnel and facilities to get the desired 
courses of study functioning.

3. The decision of the court below that petitioners must 
first apply to Florida A & M College for Negroes, and the 
courses they desire not be there available, before being



10

entitled to admission to the University of Florida is in 
direct conflict with the decisions of this Court in Missouri 
ex rel Gaines v. Canada, supra; Sweatt v. Painter, supra. 
It is admitted that petitioners had made due and timely 
application to the University of Florida. They were wrong­
fully and illegally refused admission, whereas white persons 
were accepted. Having proved their qualifications and the 
respondents’ wrongful denial of their applications, peti­
tioners were entitled to an affirmative and unconditional 
decree ordering respondents to immediately admit them to 
the University of Florida subject only to the same rules and 
regulations applicable to all other persons.

4. The denial by the court below of petitioners’ motions 
for peremptory writs of mandamus and for further relief 
filed on May 16, 1951 in which it was recited that respond­
ents had failed to provide petitioners with equal educa­
tional opportunities was contrary to decisions of this Court 
in which the question of equal educational opportunities 
has been decided, Sipuel v. Board of Regents, supra; Sweatt 
v. Painter, supra. The state has failed in its obligation to 
furnish petitioners equal educational opportunities, and 
petitioners were entitled to issuance of peremptory writs of 
mandamus ordering their admission to the University of 
Florida.

Conclusion

Since the decisions of the court below in these cases are 
directly contrary to the decisions of this Court, as set forth 
supra, it is respectfully submitted that this petition for 
writ of certiorari should be granted and the causes reversed 
and remanded without hearing, with instructions to the 
court below that it issue a decree ordering that petitioners 
be admitted to the University of Florida, forthwith, subject



11
only to the same rules and regulations applicable to all other 
students.

J ack Greenberg, 
H orace H ill ,

Of Counsel.

T huegood M arshall, 
R obert L . Carter,

Counsel for Petitioners.

(7154)



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