McLaurin v. Oklahoma State Regents for Higher Education Statement as to Jurisdiction

    SU P R E M E  COURT OF THE U N ITED  ST A T E S

OCTOBER TERM, 1948

No. 614

G. W. McLAURIN,

vs.
Appellant,

OKLAHOMA STATE RELENTS FOR HIGHER EDU­
CATION, BOARD OF REGENTS OF UNIVERSITY 
OF OKLAHOMA, ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR 
THE WESTERN DISTRICT OF OKLAHOMA

STATEMENT AS TO JURISDICTION

A mos T. H all,
T hurgood Marshall, 

Counsel for Appellant.

R obert L. Carter,
Constance Baker M otley,
Marian W . Perry,
F ranklin H. W illiams,

Of Counsel.



INDEX

Subject I ndex

Statement as to jurisdiction...........................................
Statute sustaining jurisdiction..............................
The state statutes and administrative orders, the

validity of which is involved.............................
Order by Board of Regents of University of 

Oklahoma, a State Board, acting pursuant to 
state statutes, the validity of which is in­
volved .....................................................................

Dates of judgment and of application for ap­
peal .........................................................................

Nature of the case and rulings in the District
Court .....................................................................

Statement of the grounds upon which it is con­
tended that the questions involved are sub­
stantial ...................................................................

Summary...........................................................
Argument...................................................................

Access to public education is so vital to De­
mocracy that it requires the highest con­
stitutional protection .................................

The United States Constitution prohibits 
government classifications based on race
or ancestry...................................................

The order of the defendant State Board of 
Regents requiring the segregation of the 
plaintiff enforced by the exclusion of the 
plaintiff from the regular classroom solely
because of race is unconstitutional...........

The conflict between early and recent deci­
sions of the Supreme Court defining the 
limits of state power to make classifica­
tions based on race under the Fourteenth
Amendment should be resolved.................

Conclusion.............................................................

Page
1
1

2

3

4 

4

9

13

15

19
23

— 1390

CO
 -

<
l



11 INDEX

Page
Appendix ‘ ‘ A  ’ ’—Oklahoma Statutes involved............ 25
Appendix “ B ’ ’—Order involved .................................  26
Appendix “ C ” —Journal entry of District Court. . . .  27
Appendix “ D ” —Findings of fact and conclusions of

law of the District C ou rt...........................................  28
Appendix “ E ” — Journal entry of District Court. . . .  32
Appendix “  F ” —Findings o f fact and conclusions of

law of the District Court.............................................  33

Table ok Cases Cited

Atchison R.R. v. Matthews, 174 U. S. 96.....................  21
Buchanan v. Warley, 245 U. S. 60...............................  8
Carolina Highway Dept. v. Barnwell, 303 U. S. 177. . 21
Great A. <& P. Co. v. Grosjean, 301 IT. S. 412.............. 21
Grovey v. Townsend, 295 U. S. 45.................................  22
Hall v. DeCuir, 95 IT. S. 485.............................................  9
Hirabayashi v. U. 8., 320 U. S. 81.................................  13
Korematsu v. U. 8., 323 U. S. 214.................................  14
Liggett v. Lee, 288 U. S. 517...........................................  21
Mayflower Farms v. Ten Eyck, 297 U. S. 266.............  17
Missouri ex rel. Gaines v. Canada, 307 U. S. 305.........  8
Morgan v. Virginia, 328 U. S. 373.................................  9
Myers v. Nebraska, 262 IT. S. 390...................................  18
Oyama v. California, 332 U. S. 633............................  13,14,17
Patsone v. Pennsylvania, 232 U. S. 138.........................  21
Pierce v. Society of Sisters, 268 U. S. 510.....................  18
Plessy v. Ferguson, 163 U. S. 537.................................  9, 20
Railway Mail Association v. Corsi, 326 IT. S. 88.........  15
Rosenthal v. New York, 226 IT. S. 260...........................  21
Shelley v. Kraemer, 92 L. Ed. 845.................................  8,14
Sipuel v. Board of Regents of TJniv. of Okla., 332

TJ. S. — ..........................................................................  7
Skinner v. Oklahoma, 316 U. S. 535...............................  21
Smith v. Allwright, 321 IT. S. 649...................................  22
Steele v. Louisville <& Nashville R.R. Co., 323 IT. S.

1 92 ..................................................................................  15
Takahaski v. Fish & Game Commission, ■— IT. S. — . . 14
United States v. Classic, 313 IT. S. 299.........................  22



INDEX 111

Statutes Cited _Page
American Jurisprudence, Yol. 47, Section 6, p. 299. . 10
Congressional Globe, Forty-Third Congress, May 22,

1874 ................................................................................  11
Constitution of the United States:

Fifth Am endm ent..................................................  15
Fourtenth Amendment................ 6,11,13,15,17,18,19

Judicial Code, Section 266.............................................  4
Mannheim, Karl, “ Diagnosis of Our Time,”  Oxford

University Press, 1944, p. 177.....................................  11
Oklahoma Statutes, 1941, Title 70:

Section 455 ..............................................................  2, 4, 5
Section 456 ............................................................... 2, 4, 5
Section 457 ............................................................ 2, 3, 4, 5

Report on Inequality of Opportunity in Higher Edu­
cation, Mayor’s Committee on Unity, Hew York,
1946, pp. 1, 2 ................................................................. 12

Report of the President’s Committee on Civil Rights,
Government Printing Office, Washington, D. C.,
1947, p. 1 6 6 ................................................................... 23

Report of the President’s Commission on Higher Ed­
ucation, Higher Education for American Democ­
racy, Government Printing Office, Washington,
D. C., 1947, Vol. 1, p. 5 ................................................. 11

United States Code, Title 28:
Section 1253 ............................................................. 1
Section 2281 ............................................................. 2



IN THE DISTRICT COURT OF THE UNITED STATES 
WESTERN DISTRICT DF OKLAHOMA

Civil No. 4039

G. W. McLAURIN,

vs.
Plaintiff,

BOARD OF REGENTS OF UNIVERSITY OF OKLA­
HOMA, GEORGE L. CROSS, LAWRENCE H. SNY­
DER and J. E. FELLOWS,

Defendants

STATEMENT IN SUPPORT OF JURISDICTION

The plaintiff-appellant, having presented this day his 
petition for appeal and assignment of errors, now files 
this his statement of the basis upon which it is contended 
that the Supreme Court of the United States has jurisdic­
tion on a direct appeal to review the final order and judg­
ment in question, and should exercise such jurisdiction in 
this case.

I

Statute Sustaining Jurisdiction

The Supreme Court of the United States has jurisdic­
tion to review this cause on appeal under the provisions of 
Title 28 United States Code, section 1253, this being an 
appeal from an order denying, after notice and hearing, an 
injunction in a civil action required by an act of Congress



2

to be beard and determined by a district court of three 
judges. (Title 28, United States Code, section 2281) The 
District Court for the Western District of Oklahoma sitting 
as a specially constituted three-judge court rendered a final 
judgment in this cause sustaining the validity of an order 
made by an administrative board acting under statutes of 
the State of Oklahoma after the validity of that order and 
statutes had been placed in issue by the plaintiff on the 
ground of its being repugnant to the Constitution of the 
United States.

II

The State Statutes and Administrative Orders, the Validity 
of Which Is Involved

The Oklahoma Statutes, the validity of which are involved 
are Sections 455, 456 and 457 of Title 70 of the Oklahoma 
Statutes (1941) which provide in part as follows: 70 O. S. 
1941, Section 455 makes it a misdemeanor, punishable by 
a fine of not less than $100 nor more than $500 for

“ any person, corporation or association of persons 
to maintain or operate any college, school or institution 
of this State where persons of both white and colored 
races are received as pupils for instruction,”

and provides that each day same is to be maintained or 
operated “ shall be deemed a separate offense.”

70 O. S. 1941, Section 456, makes it a misdemeanor, pun­
ishable by a fine of not less than $10 nor more than $50 for 
any instructor to teach

“ in any school, college or institution where members 
of the white race and colored race are received and en­
rolled as pupils for instruction,”

and provides that each day such an instructor shall con­
tinue to so teach “ shall be considered a separate offense.”



3

70 0. S. 1941, section 457, makes it a misdemeanor pun­
ishable by a fine of not less than $5 nor more than $20 for

“ any white person to attend any school, college or 
institution, where colored persons are received as pupils 
for instruction,”

and provides that each day such a person so attends ‘ ‘ shall 
he deemed a distinct and separate offense. ’ ’

The full text of these statutes is set forth in the Appen­
dix hereto.

At the hearing for a preliminary injunction the Court 
held that “ insofar as any statute or law of the State of 
Oklahoma denies or deprives this plaintiff admission to the 
University of Oklahoma for the purpose of pursuing the 
courses of study he seeks, it is unconstitutional and unen­
forceable.”  The Court, however, refused to issue a prelim­
inary injunction.

Order by Board of Regents of University of Oklahoma, a 
State Board, Acting Pursuant to State Statutes, the Valid­
ity of Which Is Involved.

Subsequent to the above order of the Court the filing of 
a motion for further relief by the plaintiff, the defendant 
Board of Regents of the University of Oklahoma acting 
as a state board pursuant to the statutes of Oklahoma 
adopted an order which appears in the minutes of said 
board as follows:

“ That the Board of Regents of the University of 
Oklahoma authorize and direct the President of the 
University, and the appropriate' officials of the Uni­
versity, to grant the application for admission to the 
Graduate College of G. W. McLaurin in time for Mr. 
McLaurin to enrol at the beginning of the term, under 
such rules and regulations as to segregation as the 
President of the University shall consider to afford 
to Mr. G. W. McLaurin substantially equal educational



4

opportunities as are afforded to other persons seeking 
the same education in the Graduate College, and that 
the President of the University promulgate such regu­
lations. ’ ’

In refusing to enjoin the enforcement of this order the 
Court held as a matter of law that: “ The Oklahoma stat­
utes held unenforceable in the previous order of this Court 
have not been stripped of their validity to express the pub­
lic policy of the State in respect to matters of social 
concern.”

The Court refused to enjoin the enforcement of either 
the statutes or the order, dismissed the complaint of the 
plaintiff, and rendered judgment for the defendants.

III

Dates of Judgment and of Application for Appeal

The date of the judgment of the United States District 
Court for the Western District of Oklahoma which is now 
sought to be reviewed was November 22d, 1948. The ap­
plication for appeal was presented on January 18th, 1949.

IV

Nature of the Case and Rulings in the District Court

On the 5th day of August, 1948, plaintiff filed in the 
United States District Court for the Western District of 
Oklahoma a complaint seeking a three-judge court as re­
quired by the then existing Section 266 of the Judicial Code 
for the issuance of a preliminary and permanent injunction 
against the Oklahoma State Regents for Higher Education, 
the Board of Regents of the University of Oklahoma and 
the Administrative Officers of the University of Oklahoma 
from, enforcing Sections 455-457 of the Oklahoma statutes 
of 1941 under which the plaintiff and other qualified Negro



5

applicants were excluded from admission to the courses of 
study offered only at the Graduate School of the University 
of Oklahoma.

The complaint alleged that the plaintiff, G. W. McLaurin, 
was qualified in all respects for admission to the Graduate 
School of the University of Oklahoma but was denied ad­
mission solely because of race or color pursuant to the stat­
utes of the State of Oklahoma and the orders of the Board 
of Regents of the University of Oklahoma acting pursuant 
to said statutes. Motion was made for a preliminary injunc­
tion. A  hearing was held on the motion for preliminary 
injunction upon an agreed' statement of facts in which all 
of the material facts were admitted and agreed upon. It 
was admitted that plaintiff, McLaurin, was qualified in all 
respects other than race or color for admission to the Uni­
versity of Oklahoma and that the courses he desired were 
offered by the State of Oklahoma only at the University of 
Oklahoma.

On the 6th day of October, 1948, the three-judge court 
filed a journal entry that “ it is ordered and decreed that 
insofar as Sections 455, 456 and 457, 70 0. S. 1941, are 
sought to be applied and enforced in this particular case, 
they are unconstitutional and unenforceable.”  The Court, 
however, refrained from issuing and granting any injunc­
tive relief but retained jurisdiction over the subject matter 
for entering any further orders as might be deemed proper.

On the 7th day of October, 1948, plaintiff filed a motion 
for further relief alleging that despite the prior ruling of 
the court, plaintiff had again been denied admission to 
the Graduate School of the University of Oklahoma and 
requested that the court enter an order requiring defend­
ants to admit plaintiff to the “ graduate school of the Uni­
versity of Oklahoma for the purpose of taking courses lead­
ing to a doctor’s degree in education, subject only to the



6

same rules and regulations which, apply to other students in 
said school.”

At this hearing there was placed in issue the order of 
the defendant Board of Regents of the University of Okla­
homa ordering that the plaintiff be admitted only on a basis 
of segregation solely because of his race. The plaintiff chal­
lenged the order as unconstitutional and the defendants 
rested upon the validity of such order as within the power 
of the Board of Regents of the University of Oklahoma as a 
state board.

At the hearing on said motion for further relief, the es­
sential facts were agreed upon by counsel for both parties 
and, in addition, plaintiff testified as to the conditions under 
which he was admitted to the University of Oklahoma subse­
quent to the filing of the motion for further relief.

On the 22d day of November, 1948, the three-judge court 
issued Findings of Fact, Conclusions of Law and Journal 
Entry. In the Conclusions of Law, the Court held:

1. That the United States Constitution “ does not author­
ize us to obliterate social or racial distinctions which the 
State has traditionally recognized as a basis for classifica­
tion for purposes of education and other public ministra­
tions. The Fourteenth Amendment does not abolish dis­
tinctions based upon race or color, nor was it intended to 
enforce social equality between classes and races.”

2. “ It is the duty of this court to honor the public policy 
of the State in matters relating to its internal social affairs 
quite as much as is our duty to vindicate the supreme law 
of the land.”

3. “ The Oklahoma statutes held unenforceable in the 
previous order of this court have not been stripped of their 
vitality to express the public policy of the State in respect 
to matters of social concern.”



7

4. “ We conclude therefore that the classification, based 
upon racial distinctions, as recognized and enforced by the 
regulations of the University of Oklahoma, rests upon a rea­
sonable basis, having its foundation in the public policy of 
the State, and does not therefore operate to deprive this 
plaintiff of the equal protection of the laws.”

The journal entry entered by the Court denied the relief 
prayed for, dismissed the complaint of plaintiff and entered 
judgment for the defendants.

V

Statement of the Grounds upon Which It Is Contended That 
the Questions Involved Are Substantial

Summary

The issue presented by this case has never been decided 
by the United States Supreme Court.

For one year the plaintiff has been endeavoring to secure 
admission to classes given at the University of Oklahoma 
leading to a doctor’s degree in education. Such education 
is offered by the state only at the University of Oklahoma. 
Originally plaintiff was excluded from the University by the 
defendants in reliance upon the same criminal statutes pro­
hibiting inter-racial education upon which these defendants 
had relied in excluding a qualified Negro from the law 
school.1

When those statutes had been declared unconstitutional 
insofar as they operated to exclude plaintiff from the only 
educational facility offered by the state, the defendants 
ordered plaintiff to be admitted to the University on a 
segregated basis. In operation, that order, while purport­

1 See Sipuel v. Board of Regents of University of Oklahoma, 332 TJ. S. 
—, decided January 12, 1948.



8

ing to admit plaintiff, actually excludes him from the class 
in which the desired courses are given, for he has been 
placed in a different room from which he participates in 
class work through an open door.

All other students at the University of Oklahoma are 
accepted on an equal basis without regard to race, ancestry, 
creed, color or consideration other than individual merit. 
Plaintiff is excluded from the regular classroom, the regular 
library rooms and the main part of the cafeteria. This 
exclusion and segregation is based wholly in terms of race 
or color, “ simply that and nothing more.”  2 3 Solely because 
plaintiff is a Negro he has been denied rights enjoyed as a 
matter of course by other citizens of other races.

It is in this historical and factual context that the issue 
raised by the denial of plaintiff’s motion for an injunction 
compelling his admission to the graduate school of the 
University “ for the purpose of taking courses leading to 
a doctor’s degree in education, subject only to the same 
rules and regulations which apply to other students in said 
school.”

Thus, this Court is asked to decide—
Whether in providing graduate education in a state uni­

versity the state may exclude a Negro student from the class­
room and require him to participate in classes through an 
open doorway maintaining a spatial separation from other 
students ?

No previous decision of this court dealing with the exclu­
sion of Negroes from educational facilities 8 or with the

2 Shelley v. Kraemer, 92 L. Ed. 845 Adv. Sheets; Buchanan v. Warley, 
245 U. S. 60.

3 Missouri ex rel Gaines v. Canada, 307 U. S. 305, Sipuel v. Board of 
Regents of University of Oklahoma, supra.



9

separation of the races in other aspects of life 4 has ever 
passed upon the issue here presented.

This question is certainly substantial, undecided by any 
decisions of this Court, and is of such a character as to 
affect the basic rights of citizens of all races, not only in 
Oklahoma but throughout the United States.

VI

Argument

The right here involved is set forth clearly in the prayer 
for further relief where plaintiff sought an injunction re­
quiring the defendants to admit the plaintiff “ to the grad­
uate school of the University of Oklahoma for the purpose 
of taking courses leading to a doctor ’s degree in education, 
subject only to the same rules and regulations which apply 
to other students in said school. ’ ’

The right of Negroes not to be excluded from the only 
state university offering the desired subjects has been clearly 
established and recognized by this Court. However, the 
right of a Negro student subsequently admitted to such 
university not to be excluded from the regular classroom 
and thereby ostracized solely because of race or color and 
segregated from fellow students of all other races and 
colors has not been decided by the Supreme Court.

A

Access to Public Education Is So Vital to Democracy That 
It Requires the Highest Constitutional Protection

The role of education, in a democracy, might be defined as: 
The development in all citizens of the fullest intellectual and

4 Plessy v. Ferguson, 163 U. S. 537; Hall v. DeCuir, 95 U. S. 485; Mor­
gan v. Virginia, 328 U. S. 373.



10

moral qualities, and the most effective participation in the 
duties of the citizens.

Any general agreement with this definition would auto­
matically preclude any system of segregation on the basis of 
color,—the existence of which would most certainly abort 
any meaningful “  . . . participation in the duties of the 
citizens. ’ ’

I f  an enlightened citizenry is a necessary factor in the 
equation of democracy, then it follows that education is an 
integral part of the democratic process. If education be a 
privilege, it is one of such a peculiar and precious nature 
that those entrusted with its administration have a com­
pelling duty rather than mere discretionary power to see 
that no distinctions are made on the basis of race, creed 
or color.

Segregation in education is doubly damaging. First, it 
prevents both the Negro and white student from obtaining 
a full knowledge and understanding of the group from which 
he is separated, thereby infringing upon the natural rights 
of an enlightened citizen. Second, a feeling of distrust for 
the minority group is fostered in the community at large, a 
psychological atmosphere which is not favorable to the 
acquisition and conduct of an education or for the discharge 
of the duties of a citizen.

As stated in 47 Am. Jur., Schools, Section 6, p. 299, at 
common law, the parent’s control over his child extended to 
the acquisition of an education. The parent’s common law 
rights and duties in this regard “ have been generally sup­
plemented by constitutional and statutory provisions, and 
it is now recognized that education is a function of the gov­
ernment.”  (Italics ours.)

Education is not only a component part of true demo­
cratic living, but is the very essence of and medium through 
which democracy can be effected. The intent of the framers



1 1

of the Fourteenth Amendment was indicated in the 43rd 
Congress in 1874 by these words: . . that all classes
should have the equal protection of American law and he 
protected in their inalienable rights, those rights ivMch 
grow. out of the very nature of society, and the organic law 
of this country. ’ ’ 5 In 1943, an eminent sociologist and 
economist, Dr. Karl Mannheim, then Professor of Eco­
nomics at London School of Economics, said;

“ Finally, there is a move towards a true democracy 
arising from dissatisfaction with the infinitesimal con­
tribution guaranteed by universal suffrage, a democ­
racy which through careful decentralization of func­
tions allots a creative social task to everyone. The 
same fundamental democratization claims for everyone 
a share in real education, one which no longer seeks 
primarily to satisfy the craving for social distinction, 
but enables us adequately to understand the pattern of 
life in which we are called upon to live and act.”  5 6

Finally, in 1947, seventy-three years after the 43rd 
Congress, the President’s Committee on Higher Education 
took an unequivocal position against segregation in educa­
tion. In terms of a definition of the role played by educa­
tion the Report said:

“ . . . the role of education in a democratic society 
is at once to insure equal liberty and equal opportunity 
to differing individuals and groups, and to enable the 
citizens to understand, appraise, and redirect forces, 
men, and events as these tend to strengthen or to weaken 
their liberties.”  7

5 Congressional Globe, Forty-Third Congress, May 22, 1874.
6 Mannheim, Karl, Diagnosis of Our Time, Oxford University Press, 

1944, p. 177.
7 Report of the President’s Commission on Higher Education, Higher 

Education for American Democracy, Gov’t. Printing 'Office, Washington, 
1947, Vol. I, p. 5.



12

Discrimination on the part of educational institutions 
constitutes a deeper injury to democracy. The Mayor’s 
Committee on Unity stated in its Report on Inequality in 
Higher Education: 8

. . It is generally agreed that the most urgent 
social problem of the day is to attain such attitudes of 
understanding and mutual respect among all elements of 
our population as will enable them to live together 
in harmony, regardless of diversity of race, creed, color 
or national origin. We call that the American Way. 
Actually such a condition is impossible of realization 
unless the principle of equality of opportunity in the 
important fields of human endeavor and relationship is 
recognized not only in theory but in practice, and until 
people are judged on the basis only of their own indi­
vidual worth, and not according to what race they be­
long to or what creeds they profess.

“ To attain such a goal, deep-seated prejudices must 
be overcome. And it is on education, in the broadest 
sense of the term, that we must primarily rely to correct 
these prejudices.”

In the light of this role played by education, it is par­
ticularly pertinent to consider the uncontroverted testi­
mony of the plaintiff that the effect upon him of his ex­
clusion from the classroom is to deny him an opportunity 
to secure an equal education. Leaving aside for the 
moment the grave damage to society resulting from the 
failure of education to demonstrate in practice the principle 
of equality upon which our society is founded, in this case 
the plaintiff’s individual right, guaranteed by the Consti­
tution, to have an equal opportunity to secure an education 

. has been denied by the segregation practiced by the Univer­
sity of Oklahoma.

8 Report on Inequality of Opportunity in Higher Education, Mayor’s 
Committee on Unity, New York, 1946, pp. 1, 2.



13

B

The United States Constitution Prohibits Government 
Classifications Based On Race or Ancestry

In recent cases the Supreme Court has held on many 
occasions under a variety of circumstances that racial 
criteria are irrational, irrelevant, odious to our way of life 
and specifically proscribed under the Fourteenth Amend­
ment.9 Whether this proscription against racial classifica­
tions be found in the constitutional concept of equal pro­
tection 10 or is included within the meaning of due process,11 
the result is the same. The only apparent limitation on 
this doctrine appears to be that of a national emergency 
such as the danger of espionage and sabotage in time of 
war which might control the decision of the Court.

In Hirabayashi v. United States,12 the Supreme Court 
had to determine whether a curfew order adopted by the 
West Coast military commander pursuant to Congressional 
authority violated petitioner’s constitutional rights in 
that the curfew applied only to persons of Japanese ances­
try.

The Court said:

‘ ‘ Distinctions between citizens solely because of their 
ancestry are by their nature odious to a free people. 
For that reason, legislative classification or discrim­
ination based on race alone has often been held to be a 
denial of equal protection. ”  320 U. S. 101.

Except for the dangers of war and sabotage the racial 
distinctions there in issue would have been struck down.

9 Shelley v. Kraemer, supra, Oyama v. California, 332 U. S. 214; Taka- 
hashi v. Fish <& Game Commission, —  U. S. — .

10 Shelley v. Kraemer, supra.
11 Hirabayashi v. V. S., 320 U. S. 81.
12 320 U. S. 81.



14

In Korematsu v. United States, 323 U. S. 214, petitioner 
was convicted for remaining in California in violation of the 
Japanese exclusion order. The Court said that “ legal 
restrictions which curtail the civil rights of a single racial 
group are immediately suspect. . . . Pressing public 
necessity may sometimes justify the existence of such re­
strictions; racial antagonism never can.”

In 0 i/ama, v. California, 332 U. S. 633 (1948) the Court 
had before it the constitutionality of the California Alien 
Land Law which forbade aliens ineligible for American 
citizenship from acquiring, owning, occupying, leasing or 
transferring agricultural land.

Said the Court: “ In approaching cases, such as this one, 
in which federal constitutional rights are asserted, it is in­
cumbent on us to inquire not merely whether those rights 
have been denied in express terms, but also whether they 
have been denied in substance and effect. We must re­
view independently both the legal issues and those factual 
matters with which they are commingled. . . .  In our view 
of the case, the State has discriminated against Fred 
Oyama; the discrimination is based solely on his parents’ 
country of origin; and there is absent the compelling justi­
fication which would be needed to sustain discrimination of 
that nature.”

In Shelley v. Kraemer, 92 L. Ed. 845, Adv. Sheets, the 
basic issue was the validity of court enforcement of racial 
restrictive covenants intended to exclude Negroes from 
the ownership or occupancy of real property. The Court 
stated: ‘ ‘ Because of the race or color of these petitioners 
they have been denied rights of ownership or occupancy 
enjoyed as a matter of course by other citizens of different 
race or color.”  . . .  92 L. Ed. 855, Adv. Sheets.

“ The historical context in which the Fourteenth Amend­
ment became a part of the Constitution should not be for­
gotten. Whatever else the framers sought to achieve, it is



15

clear that the matter of primary concern was the establish­
ment of equality in the enjoyment of basic civil and political 
rights and the preservation of those rights from discrimi­
natory action on the part of the States based on considera­
tions of lace or color.”  . . . “ Upon full consideration, 
we have concluded that in these cases the States have acted 
to deny petitioners the equal protection of the laws guaran­
teed by the Fourteenth Amendment.”  (92 L. Ed. 857 Adv. 
Sheets.)

The Supreme Court has also held that union bargaining 
representatives operating under authority of Congress are 
not permitted to discriminate because of race or color.13 
On the other hand state statutes prohibiting racial discrim­
ination by labor unions have been upheld as within the 
spirit of the Fourteenth Amendment.14

It is clear that although states are permitted to make rea­
sonable classifications for governmental purposes, classifi­
cations on the basis of race are unconstitutional violations 
of the Fifth or Fourteenth Amendment depending on 
whether the racial classification is by the federal or state 
government.

0. The Order of the Defendant State Board of Regents 
Requiring the Segregation of the Plaintiff Enforced 
by the Exclusion of the Plaintiff from the Regular 
Classroom Solely Because of Race Is Unconstitutional.

It is clear from the history of the treatment of Negroes 
seeking graduate educational advantages offered by the 
State of Oklahoma that the problem confronting the court 
is one of exclusion. That was true in Sipuel v. Board of 
Regents (92 L. Ed. 256 Adv. Sheets) and it was true in the 
earliest stages of this action, when the plaintiff was excluded

13 Steele v. Louisville & Nashville HR Go., 323 U. S. 192 (1944).
14 Railway Mail Association V. Corsi, 326 U. S. 88 (1945).



16

entirely from the University of Oklahoma. It is true at the 
present time, when the plaintiff, admitted to the campus 
of the University, is still excluded from the classroom in 
which the courses he is taking are given to other students. 
Plaintiff and those other students are, presumably, entitled 
to pursue the same course of instruction, at the same time, 
take the same examinations and will, presumably, if they 
are competent, be awarded the same degree by the Univer­
sity. But during this entire period of study the plaintiff 
will be excluded, physically, from the room in which other 
students undertake the joint enterprise of securing an edu­
cation.

The Supreme Court has dealt on many occasions with 
the efforts of state agencies to exclude racial minorities 
from some aspect of community life. Recently, in Shelley 
v. Kraemer, supra, the Supreme Court found that the state 
courts could not exclude Negroes from residential areas by 
enforcement of racial restrictive covenants entered into by 
white residents. Thirty years earlier the Court had held 
that such exclusion could not be accomplished by the enact­
ment of municipal ordinances fixing the boundaries of white 
and Negro residential areas. Buchanan v. Warley, supra.

If the state may not, through any of its officials enforce 
the exclusion of a Negro from a neighborhood where he 
has “ qualified”  as a resident by purchasing a home from a 
willing seller, by what logic can the state be justified in 
excluding from a classroom a Negro who has qualified and 
been admitted as a student in that class.

The Supreme Court has held that exclusion of Negroes 
from residential areas by state action could not be justified 
by resort to the police power of the state in an effort to 
prevent race conflict (Buchanan v. Warley, supra) nor by 
the sanctity of private contracts (Shelley v. Kraemer, 
supra).



17

It is apparent that the power of the president of a state 
university acting upon an order of an administrative board 
of the state to require a qualified Negro student, duly ad­
mitted to a class in the University, to remain physically 
excluded at all times from the room in which that class is 
conducted must be tested against the same constitutional 
limitations which apply to the power of other state agencies 
to exclude a Negro from a home he has purchased.

As the Supreme Court stated in the Shelley case:

“ Only recently this Court has had occasion to de­
clare that a state law which denied equal enjoyment of 
property rights to a designated class of citizens of 
specified race and ancestry, was not a legitimate exer­
cise of the state’s police power but violated the guar­
anty of the equal protection of the laws. Oyama v. 
California, 332 U. S. 633 (1948)”  92 L. Ed. 856.

The record of this case is barren of any attempt to define 
the source of the extraordinary power claimed by the State 
of Oklahoma. Clearly the trial court was not justified in 
resorting to a vague public policy, not in itself shown to 
be reasonable, for when no basis is shown for a classifica­
tion, the courts may not “ conjure up”  justifications. May­
flower Farms v. Ten Eyck, 297 U. S. 266 (1935).

The two basic considerations used by the Supreme Court 
in the Shelley case (supra) to determine whether the Four­
teenth Amendment had been violated were first whether the 
action was state action and second whether the race of the 
parties was the determining factor in that action. Those 
two questions having been affirmatively answered the pro­
hibitions of the Fourteenth Amendment automatically at­
tached to the action of the state. Thus, the Court stated:

“ It should be observed that these covenants do not 
seek to proscribe any particular use of the affected 
properties. Use of the properties for residential occu­



18

pancy, as such, is not forbidden. The restrictions of 
these agreements, rather, are directed toward a desig­
nated class of persons and seek to determine who may 
and who may not own or make use of the properties for 
residential purposes. The excluded class is defined 
wholly in terms of race or color; ‘ simply that and noth­
ing more.’ . . . (92 L. Ed. 850, Adv. Sheets.)

“ We have noted that freedom from discrimination 
by the States in the enjoyment of property rights was 
among the basic objectives sought to be effectuated by 
the framers of the Fourteenth Amendment. That such 
discrimination has occurred in these cases is clear. 
Because of the race or color of these petitioners they 
have been denied rights of ownership or occupancy 
enjoyed as a matter of course by other citizens, of 
different race or color.”  (92 L. Ed. 855, Adv. Sheets.)

The United States Supreme Court has also given pro­
tection to those substantive rights which it has found to be 
included within the liberty guaranteed by the due process 
clause of the Fourteenth Amendment. Myers v. Nebraska, 
262 U. S. 390 (1922); Pierce v. Society of Sisters, 268 U. S. 
510, (1925). In each of these cases the Court found that the 
state, notwithstanding its power to regulate all schools, had 
interfered with a right belonging to the individuals pro­
tected by this clause and which was beyond the power of 
the state to regulate.

In this case, plaintiff sought to invoke the protection of 
the federal constitution against unequal treatment and also 
against the deprivation of his liberty or right to enjoy 
facilities afforded by the state and open to members of 
another group.

The rights created by the Fourteenth Amendment are, by 
its terms, guaranteed to the individual. The rights estab­
lished are personal rights—personal to the individual not to 
racial groups.

The plaintiff has been seeking to enforce his right to



19

obtain graduate education at the University of Oklahoma 
on the same basis as all other qualified students and sub­
ject only to the same rules and regulations. This right can 
only be enjoyed by his admission to the only class and class­
room where these courses are taught. However, plaintiff 
is still excluded from the classroom and is only permitted 
to participate in the class from another room through an 
open door, thereby being subjected to rules and regula­
tions applicable solely to him because of his race and color. 
Thus the plaintiff’s individual right was qualified on a group 
racial basis, set aside by the State of Oklahoma and thereby 
effectively denied to the plaintiff.

D, The Conflict Between Early and Recent Decisions of the 
Supreme Court Defining the Limits of State Power to 
Make Classifications Based On Race under the Four­
teenth Amendment Should Be Resolved.

In this case the defendants put in no evidence to show 
any basis for the exclusion of the plaintiff , from, the regular 
classroom. They relied solely upon their alleged right to 
do so because of race and color.

In denying the plaintiff the relief requested this Court 
held that the Fourteenth Amendment ‘ ‘ does not authorize us 
to obliterate social or racial distinctions which the State 
has traditionally recognized as a basis for classification for 
purposes of education and other public ministrations. The 
Fourteenth Amendment does not abolish distinctions based 
upon race or color, nor was it intended to enforce social 
equality between classes and races . . . It is the duty 
of this Court to honor the public policy of the State in mat­
ters relating to its internal social affairs quite as much as 
it is our duty to vindicate the supreme law of the land.”  
It is thereby clear that the basic error in the decision in this 
case was the reliance on the theory set forth in the case of



2 0

Plessy v. Ferguson, supra, rather than the basic pronounce­
ments of the United States Supreme Court in the more re­
cent cases.

In the case of Plessy v. Ferguson, 163 U. S. 537 (1896) 
the majority of the Supreme Court, in upholding the validity 
of a state statute requiring segregation of the races in intra­
state transportation, stated:

"T he object of the amendment (Fourteenth) 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 distinctions based 
upon color, or to enforce social, as distinguished from 
political, equality, or a commingling of the two races 
upon terms unsatisfactory to either.”  (163 U. S. 537, 
544)

In the case of Buchanan v. Warley, supra, the Supreme 
Court, in declaring invalid an ordinance requiring resi­
dential segregation, stated:

" I t  is the purpose of such enactments, and it is 
frankly avowed it will be their ultimate effect, to re­
quire by law, at least in residential districts, the com­
pulsory separation of the races on account of color. 
Such action is said to be essential to the maintenance 
of the purity of the races, although it is to be noted in 
the ordinance under consideration that the employment 
of colored servants in white families is permitted, and 
nearby residences of colored persons not coming within 
the blocks, as defined in the ordinance, are not pro­
hibited.

"The case presented does not deal with an attempt 
to prohibit the amalgamation of the races. The right 
which the ordinance annulled was the civil right of a 
white man to dispose of his property if he saw fit to do 
so to a person of color, and of a colored person to make 
such disposition to a white person.

" I t  is urged that this proposed segregation will pro­



2 1

mote the public peace by preventing race conflicts. De­
sirable as this is, and important as is the preservation 
of the public peace, this aim cannot be accomplished by 
laws or ordinances which deny rights created or pro­
tected by the Federal Constitution. ’ ’ 245 U. S. 81.

The rationale of the I’less// case as to classification of 
Negroes has always been in direct conflict not only with 
the principles set forth in the Buchanan ease, supra, as to 
residential segregation but has also been in conflict with 
other decisions of the Supreme Court on the limitations of 
the Fourteenth Amendment on the right of states to make 
classifications.15

More reecnt decisions of the Supreme Court set out above 
have made it clear that the basis for the decision in the 
Plessy case that the Fourteenth Amendment ‘ ‘ could not have 
been intended to abolish distinctions based upon color”  is no 
longer valid.

In this case the right which the plaintiff asserts is a right 
in keeping with these latter decisions of the Supreme Court.

The trial court, again following the doctrines of the 
Plessy ease, upheld the racial classification because it “ rests 
upon a reasonable basis, having its foundation in the pub­
lic policy of the state.”  This ruling is in direct conflict with 
prior decisions of the Supreme Court.

In the Buchanan case the Supreme Court stated “ . . . 
it is equally well established that the police power, broad

15 In order that a classification may meet the prohibitions of the equal 
protection clause, the Supreme Court has required that the state must show: 
first, that the purpose sought to be achieved by the classification is within 
the scope of state power, and second, that the classification bears a reason­
able relationship to the end sought by the legislation.

Skinner v. Oklahoma, 316 U. S. 535 (1942); South Carolina Highway 
Dept. v. Barnwell, 303 U. S. 177 (1938); Great A. & P. Co. v. Grosjean, 
301 U. S. 412 (1937) ; Liggett v. Lee, 288 U. S. 517 (1933) ; Patsone V. 
Pennsylvania, 232 U. S. 138 (1914) ; Rosenthal v. New York, 226 U. S. 
260 (1912) ; Atchison RR  v. Matthews, 174 U. S. 96 (1899).



22

as it is, cannot justify the passage of a law or ordinance 
which runs counter to the limitations of the Federal Con­
stitutions; that principle has been so frequently affirmed 
in this court that we need not stop.to cite the cases.”  (245 
IT. S. 66, 74)

In the Shelley case the Supreme Court stated “ . . . Nor 
may the discriminations imposed by the state courts in these 
cases be justified as proper exercises of state police power”  
(92 L. Ed. Adv. Sheets 845, 856).

In the Plessy case, there was enunciated the now anti­
quated and discarded doctrine which has been relied upon 
by various states to sustain the constitutionality of statutes 
requiring the segregation of the races in public education. 
In the light of morei recent decisions of the United States 
Supreme Court, that case can no longer be used as an 
authority for the type of discrimination here in issue.

The recent cases, standing as they do for the principle that 
racial classification by government is unconstitutional be­
cause “  (d)istinctions between citizens solely because of their 
ancestry are by their nature odious to a free people,”  have 
completely repudiated the doctrine of Plessy v. Ferguson 
that the Fourteenth Amendment ‘ ‘ could not have been in­
tended to abolish distinctions based upon color.”

The important governmental function of public educa­
tion is seriously handicapped by the blind adherence to the 
doctrine set forth in the Plessy case. Just as the conflict 
between the decisions of Grovey v. Townsend, 295 U. S. 45, 
and United States v. Classic, 313 U. S. 299, had to be re­
solved in Smith v. Allwright, 321 U. S. 649, the conflict be­
tween the Plessy case and the latter cases set out above 
must be resolved.

That the questions here presented are substantial is made



23

even clearer by the Fifth recommendation of the Report of 
the President’s Committee on Civil Rights.

“ The separate but equal doctrine has failed in three 
important respects. First, it is inconsistent with the 
fundamental equalitarianism of the American way of 
life in that it marks groups with the brand of inferior 
status. Secondly, where it has been followed, the re­
sults have been separate and unequal facilities for 
minority peoples. Finally, it has kept people apart 
despite incontrovertible evidence that an environment 
favorable to civil rights is fostered whenever groups 
are permitted to live and work together. There is no 
adequate defense of segregation.”  18

Conclusion

Negroes seeking public education in Oklahoma and other 
southern States have always been subjected to varying de­
grees of discrimination—all based on race and color alone. In 
this case the plaintiff is seeking to enforce the right to an 
education by the State of Oklahoma on the same basis as 
other students subject only to rules and regulations ap­
plicable to all. On the other hand, the State of Oklahoma 
has insisted upon determining his right on the basis of a 
racial classification. First it was complete exclusion from 
the university—later it was the exclusion from the class­
room. Plaintiff is still the victim of the same racial classifi­
cation. His individual right is lost in the racial group 
classification pursuant to the alleged State public policy 
derived from statutes heretofore declared unconstitutional. 
The evil complained of is the racial classification which the 
Fourteenth Amendment was intended to abolish. The ques­
tion herein involved is not only substantial within the mean­

18 Report of the President’s Committee on Civil Rights, To Secure These 
Bights, Government Printing Office, Washington, D. C., 1947, p. 166.



24

ing of the jurisdictional statutes but is basic to two of the 
most vital areas of our democratic process—public educa­
tion and the individual’s right to complete equality before 
the law.

Respectfully submitted,

A mos T. H aul,
107Y2 N. Greenwood Avenue,

Tulsa, Oklahoma; 
Thurgood Marshall,

20 West 40th Street,
New York 18, N. Y., 
Attorneys for Plaintiff.

R obert L. Carter,
Constance Baker M otley,
Marian W . Perry,
F ranklin H. W illiams,

20 West 40th Street,
New York 18, N. Y.

Of Counsel.



25

Oklahoma Statutes Involved

70 0.8.1941, Section 455. It shall be unlawful for any per­
son, corporation or association of persons, to maintain or 
operate any college, school or institution of this state where 
persons of both white and colored races are received as 
pupils for instruction, and any person or corporation who 
shall operate or maintain any such college, school or institu­
tion in violation hereof, shall be deemed guilty of a misde­
meanor, and upon conviction thereof shall be fined not less 
than one hundred dollars nor more than five hundred dol­
lars, and each day such school, college or institution shall be 
open and maintained shall be deemed a separate offense. 
(L. 1913, ch. 219, p. 572, art. 15, Section 5.)

70 O.S. 1941, Section 456. Any instructor who shall teach 
in any school, college or institution where members of the 
white race and colored race are received and enrolled as 
pupils for instruction, shall be deemed guilty of a misde­
meanor, and upon conviction thereof shall be fined in any 
sum not less than ten dollars nor more than fifty dollars for 
each offense, and each day any instructor shall continue to 
teach in any such college, school or institution, shall be con­
sidered a separate offense. (L. 1913, ch. 219, p. 572, art. 
15, Section 6.)

70 O.S. 1941, Section 457. It shall be unlawful for any 
white person to attend any school, college or institution, 
where colored persons are received as pupils for instruction, 
and any one so offending shall be fined not less than five 
dollars, nor more than twenty dollars for each offense, and 
each day such person so offends, as herein provided, shall 
be deemed a distinct and separate offense; provided, that 
nothing in this article shall be construed as to prevent any 
private school, college or institution of learning from main­
taining a separate or distinct branch thereof in a different 
locality. (L. 1913, ch. 219, p. 572, art. 15, Section 7.)

APPENDIX “A”



26

Order Involved

From the minutes of a special meeting of the Regents of 
the University of Oklahoma held on Sunday, October 10, 
1948.

Regent Emery: “ I now offer the following motion and 
move its adoption: ‘ That the Board of Regents of the Uni­
versity of Oklahoma authorize and direct the President of 
the University, and the appropriate officials of the Uni­
versity to grant the application for admission to the Grad­
uate College of G. W. McLaurin in time for Mr. McLaurin 
to enroll at the beginning of the term, under such rules and 
regulations as to segregation as the President of the Uni­
versity shall consider to afford to Mr. G. W. McLaurin 
substantially equal educational opportunities as are af­
forded to other persons seeking the same education in the 
Graduate College, and that the President of the University 
promulgate such regulations’.”

A  roll call vote was asked for with the following voting 
Aye:

Regent Emery 
Regent Shepler 
Regent White 
Regent Benedum 
Regent Deacon 
Regent McBride
Absent:
Regent Noble.

APPENDIX “B”



27

No. 4039 (Civil)

G. W. M cLaurin, Plaintiff,

APPENDIX “C”

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA

vs.

Oklahoma State Regents fob H igher E ducation, et al.,
Defendants

Journal Entry

Be it remembered that this cause came on regularly for 
hearing before this duly constituted court on August 23, 
1948. The plaintiff appeared in person and by his attorneys 
Thurgood Marshall and Amos T. Hall. The defendants 
appeared either in person, or by and through the Honorable 
Mac Q. Williamson, Attorney General of the State of Okla­
homa, Fred Hansen and George T. Montgomery, Assistant 
Attorneys General. Testimony was introduced, argument 
was had, and the matter was continued until September 24, 
1948, and was thereafter continued until September 29,1948. 
Further evidence was taken, argument heard, and the cause 
finally submitted.

On this, the 6 day of October, 1948, it is ordered and de­
creed that insofar as Sections 455, 456 and 457, 70 O. S. 1941, 
are sought to be applied and enforced in this particular case, 
they are unconstitutional and unenforceable.

The court refrains at this time, however, from issuing or 
granting any injunctive relief, but jurisdiction over the 
subject matter is reserved for the purpose of entering any 
such further orders as may be deemed proper in the circum­



2 8

stances to secure to the plaintiff the redress he seeks under 
the Constitution and laws of the United States.

Done this 6 day of October, 1948.
(S.) A lfred P. M urrah,

Judge of the U. 8. Court of Appeals. 
(S.) E dgar S. V aught,

U. S. District Judge. 
(S.) B ower Broaddus,

U. S. District Judge.

Endorsed: Filed October 6, 1948. Theodore M. Filson, 
Clerk.

APPENDIX “D”

IN THE UNITED STATES DISTRICT COURT FOR 
THE WESTERN DISTRICT OF OKLAHOMA

No. 4039 (Civil)

G-. W. M cL aurin, Plaintiff,

vs.

Oklahoma State Regents for H igher E ducation, et al.,
Defendants

Findings of Fact and Conclusions of Law

Preliminary Statement
By this suit, we are asked to enjoin the defendants from 

refusing to admit the plaintiff to the University of Okla­
homa, for the purpose of pursuing a postgraduate course 
in education leading toward a doctor’s degree. It is said 
that although having made timely application for admis­
sion, and being morally and scholastically qualified, he has 
been denied admission solely because, as a member of the 
Negro race, the laws of Oklahoma forbid his admission 
under criminal penalty. It is said that in these circum­
stances, refusal to admit the plaintiff to the University of



29

Oklahoma, for the purpose of pursuing the course of study 
he seeks, is a deprivation of his rights to the equal protec­
tion of the laws guaranteed by the Fourteenth Amendment 
to the Constitution of the United States.

Findings of Fact

I
In accordance with the stipulation, the court finds that the 

University of Oklahoma is an educational institution main­
tained by the taxpayers of the State, from funds derived 
from uniform taxation, and that it is the only educational 
institution supported by public taxation in which the plain­
tiff can pursue a postgraduate course leading to a doctor’s 
degree in education.

II
That during the enrollment period for the second semester 

for the 1947-1948 school term, plaintiff applied for admis­
sion to the University for the purpose of taking such courses 
which would entitle him to a doctor’s degree in education, 
and that at the time of his application, he possessed and 
still possesses all of the scholastic and moral qualifications 
prescribed by the University of Oklahoma for admission to 
the courses he seeks to pursue, and that he was denied 
admission to the University on February 2, 1948, solely 
because as a member of the Negro race, the applicable laws 
of Oklahoma (70 0. S. 1941, Sections 455, 456 and 457) make 
it a criminal offense for any person to operate a school or 
college or any educational institution where persons of both 
white and colored races are received as pupils for instruc­
tion, or for any instructors to teach in, or any white person 
to attend, any such school.

Conclusions of Law

I
This suit arises under the Constitution and laws of the 

United States, and seeks redress for the deprivation of civil 
rights guaranteed by the Fourteenth Amendment. The 
court is therefore vested with jurisdiction, regardless of



30

diversity of citizenship or amount in controversy. Hague 
v. C. I. 0., 307 IT. S. 496, 514; Douglas v. Jeannette, 319 U. S. 
157. Since a temporary injunction against the enforcement 
of the State laws on the grounds of their unconstitutionality 
is sought, the subject matter is properly cognizable by a 
three judge court under Section 266 of the Judicial Code, 
28 U. S. C. A. 380.

II
We hold, in conformity with the equal protection clause 

of the Fourteenth Amendment, that the plaintiff is entitled 
to secure a postgraduate course of study in education lead­
ing to a doctor’s degree in this State in a State institution, 
and that he is entitled to secure it as soon as it is afforded 
to any other applicant. Sipuel v. Board of Regents, 332 
U. S. 631; Missouri ex rel Gaines v. Canada, 305 U. S. 337. 
That such educational facilities are now being offered to 
and received by other applicants at the University of Okla­
homa, and that although timely and appropriate application 
has been made therefore, to this time such facilities have 
been denied this plaintiff.

III
The court is of the opinion that insofar as any statute or 

law of the State of Oklahoma denies or deprives this plain­
tiff admission to the University of Oklahoma for the pur­
pose of pursuing the course of study he seeks, it is unconsti­
tutional and unenforceable. This does not mean, however, 
that the segregation laws of Oklahoma are incapable of 
constitutional enforcement. We simply hold that insofar 
as they are sought to be enforced in this particular case, they 
are inoperative.

IV
Our attention has been called to and we have seen a state­

ment of the Governor of this State in which he commits the 
State to a certain course of action, designed to afford equal 
segregated facilities to this plaintiff and members of his 
Race in compliance with the constitutional requirements. 
In that connection, we think it appropriate to state that it 
is not our function to say what the State shall do in order



31

to comply with its acknowledged responsibilities to its 
citizens. Rather it is our function to determine whether 
what has been done and what is being done meets the con­
stitutional mandate.

V
In the performance of this important function, we sit as 

a court of equity, with power to fashion our decree in accord­
ance with right and justice under the law. Accordingly, 
we refrain at this time from issuing or granting any injunc­
tive relief, on the assumption that the law having been 
declared, the State will comply. We retain jurisdiction of 
this case, however, with full power to issue such further 
orders and decrees as may be deemed necessary and proper 
to secure to this plaintiff the equal protection of the laws, 
which, translated into terms of this lawsuit, means equal 
educational facilities.

(S .)  A lfred P. M u erah ,
Judge of the U. IS'. Court of Appeals.

(S.) E dgar S. V au g h t ,
U. S. District Judge.

(S .)  B ower B roaddus,
U. S’. District Judge.

Endorsed: Filed October 6, 1948. Theodore M. Filson, 
Clerk.



32

No. 4039 (Civil)

G. W . M cL aurin , Plaintiff, 
vs.

Oklahoma State Regents foe H igher E ducation, et al.,
Defendants

Journal Entry

Be it remembered that this cause came on for further con­
sideration on the 25th day of October, 1948. The plaintiff, 
McLaurin, appeared in person and by his counsel, Thur- 
good Marshall and Amos T. Hall. The applicant, Mauderie 
Florence Hancock Wilson, appeared in person and by the 
same counsel of record. The defendants appeared either 
in person or by and through the Attorney General of the 
State of Oklahoma, the Honorable Mac Q. Williamson, and 
Assistant Attorneys General Fred Hansen and George T. 
Montgomery. Testimony was heard, and the case was fin­
ally submitted on briefs of the parties.

Upon consideration of the evidence, argument and briefs, 
it is ordered that the relief now sought by the Plaintiff 
McLaurin should be and the same is hereby denied.

It is further ordered that the relief prayed for by the 
applicant, Wilson, should be and the same is thereby denied. 
The complaint as to each of the parties is dismissed and 
judgment is entered for the defendants.

A lfred P. Mure ah . 
E dgar S. V aught. 
B ower Broaddus.

Endorsed: Filed Nov. 22, 1948. Theodore M. Filson, 
Clerk, by Margaret P. Blair, Deputy.

APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA



33

No. 4039 (Civil)

Gr. W. M cLaurin, Plaintiff,

APPENDIX “F”

IN THE UNITED STATES DISTRICT COURT FOR
THE W ESTERN DISTRICT OF OKLAHOMA

vs.

Oklahoma State Regents for H igher E ducation, et al.,
Defendants

Findings of Fact and Conclusions of Law

Preliminary Statement

At a former hearing of this cause, we held the segrega­
tion laws of the State of Oklahoma (70 0. S. 1941, Sections, 
455, 456 and 457) unconstitutional and inoperative insofar 
as they deprived the plaintiff of his constitutional right to 
pursue the course of study he sought at the University of 
Oklahoma. We were careful, however, to confine our decree 
to the particular facts before us, while recognizing the 
power of the State to pursue its own social policies regard­
ing segregation in conformity with the equal protection of 
the laws. We expressly refrained from granting injunc­
tive relief, on the assumption that the State statutory im­
pediments to equal educational facilities having been de­
clared inoperative, the State would provide such facilities 
in obedience to the constitutional mandate.

Now this eause comes on for further consideration on 
complaint of the plaintiff, to the effect that although he has 
been admitted to the University o f  Oklahoma, and to the 
course of study he sought, the segregated conditions under 
which he was admitted, and is required to pursue his course 
of study, continue to deprive him of equal educational facil­
ities in conformity with the Fourteenth Amendment.



34

F indings of F act

I

Tlie undisputed evidence is that subsequent to our decree 
in this case, plaintiff was admitted to the University of 
Oklahoma, and to the same classes as those pursuing the 
same courses. He is required, however, to sit at a desig­
nated desk in or near a v?ide opening into the classroom. 
From this position, he is as near to the instructor as the 
majority of the other students in the classroom, and he can 
see and hear the instructor and the other students in the 
main classroom as well as any other student. His objection 
to these facilities is that to he thus segregated from the 
other students so interferes with his powers of concentra­
tion as to make study difficult, if not impossible, thereby de­
priving him of the equal educational facilities. He says in 
effect that only if he is permitted to choose his seat as any 
other student, can he have equal educational facilities.

II
He is accorded access to and use of the school library as 

other students, except if he remains in the library to study, 
he is required to take his books to a designated desk on the 
mezzanine floor. All other students who use the library 
may choose any available seat in the reading room in the 
library, but a majority find it necessary to study elsewhere 
because of a lack of seating capacity in the library. The 
plaintiff says that this secluded and segregated arrange­
ment tends to set him apart from other students and hence 
to deprive him of equal facilities.

III
He is admitted to the school cafeteria, where he is served 

the same food as other students, but at a different time and 
at a designated table. He does not object to the food, the 
dining facilities, or the hour served, but to the segregated 
conditions under which he is served.

In the language of his counsel, he complains that “ his 
required isolation from all other students, solely because



35

of the accident of birth * * * creates a mental discom­
fiture, which makes concentration and study difficult, if not 
impossible * * * ” ; that the enforcement of these regu­
lations places upon him “ a badge of inferiority which affects 
his relationship, both to his fellow students, and to his pro­
fessors.”

ConcLUSions on Law

I
It is said that since the segregation laws have been declared 

inoperative, the University is without authority to require 
the plaintiff to attend classes under the segregated condi­
tions. But the authority of the University to impose segre­
gation is of concern to this court only if the exercise of that 
authority amounts to a deprivation of a federal right. See 
Screws v. United States, 325 U. S. 91.

The Constitution from which this court derives its juris­
diction does not authorize us to obliterate social or racial 
distinctions which the State has traditionally recognized as 
a basis for classification for purposes of education and other 
public ministrations. The Fourteenth Amendment does not 
abolish distinctions based upon, race or color, nor was it in­
tended to enforce social equality between classes and races. 
Plessy v. Ferguson, 163 U. S. 537 ; Cummings v. United 
States, 175 U. S. 528; Gang Lum v. Rice, 275 U. S. 78; Mis­
souri ex rel Gaines v. Canada, 305 U. S. 37. It is only when 
such distinctions are made the basis for discrimination and 
unequal treatment before the law that the Fourteenth 
Amendment intervenes. Trusts v. Raich, 293 U. S. 33, 42. It 
is the duty of this court to honor the public policy of the 
State in matters relating to its internal social affairs quite as 
much as it is our duty to vindicate the supreme law of the 
land.

I l l
The Oklahoma statutes held unenforceable in the prev­

ious order of this court have not been stripped of their 
vitality to express the public policy of the State in respect 
to matters of social concern. The segregation condemned 
in Westminister School District v. Mendez, 161 F. 2d 774, 
was found to be “  wholly inconsistent ’ ’ with the public policy



36

of the State of California, while in our case the segregation 
based upon racial distinctions is in accord with the deeply 
rooted social policy of the State of Oklahoma.

IY
The plaintiff is now being afforded the same educational 

facilities as other students at the University of Oklahoma. 
And, while conceivably the same facilities might be afforded 
under conditions so odious as to amount to a denial of equal 
protection of the law, we cannot find any justifiably legal 
basis for the mental discomfiture which the plaintiff says 
deprives him of equal educational facilities here. We con­
clude therefore that the classification, based upon racial 
distinctions, as recognized and enforced by the regulations 
of the University of Oklahoma, rests upon a reasonable basis, 
having its foundation in the public policy of the State, and 
does not therefore operate to deprive this plaintiff of the 
equal protection of the laws. The relief he now seeks is 
accordingly denied.

A pplication op M rs. Maude F lorence H ancock W ilson

Mrs. Maude Florence Hancock Wilson, claiming to be a 
member of the same class and similarly situated with the 
plaintiff McLaurin, has renewed her application for entrance 
to the University of Oklahoma to pursue a course of study 
in social work, and upon being denied entrance she comes 
here seeking the same relief sought by McLaurin in his class 
action.

The facts are that Mrs. Wilson applied for admission to 
the University of Oklahoma on January 28, 1948, for the 
purpose of studying for a master’s degree in sociology. She 
was morally and scholastically qualified to pursue this 
course of study, and it was unavailable at any separate 
school within the State of Oklahoma. When her applica­
tion for entrance was denied, solely because the laws of 
Oklahoma forbade it, she filed suit in the District Court of 
Cleveland County, Oklahoma, in May 1948, for a writ of 
mandamus to compel her admission on substantially the 
same grounds now asserted here. Having been denied relief 
in the District Court, she has perfected her appeal to the



37

Supreme Court of Oklahoma, and that appeal is now pending 
and undecided. She did not renew her application for ad­
mission to the University until October 15, 1948, two days 
after registration was closed to any applicant for any 
course of study at the University.

Having elected to pursue an equally adequate remedy in 
the courts of the State for the purpose of securing equal 
protection of the laws, and is now actively pursuing that 
remedy, she is not similarly situated with the plaintiff, Mc- 
Laurin. Moreover, the course of study she now seeks to pur­
sue is not the same as the one originally sought, and not 
having applied for admission until all other persons would 
have been similarly denied admission, she is not within the 
class for which this suit is prosecuted. The relief sought 
by her is, therefore, denied.

A lfred P. Mtjrrah.
E dgar S. Y aught.
B ower B roaddus.

Endorsed: Piled Nov. 22, 1948. Theodore M. Filson, 
Clerk, by Margaret P. Blair, Deputy.

(1390)