United States v. The Board of Education of the City of Bessemer Brief for Appellant
Public Court Documents
April 25, 1966
Cite this item
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Brief Collection, LDF Court Filings. Florida v. Board of Control Brief for the Respondents in Opposition to Petition for Writ of Certiorari to the Supreme Court of Florida, 1957. 549382fd-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3624c35d-85f5-43fe-aa5f-3152d36bb33a/florida-v-board-of-control-brief-for-the-respondents-in-opposition-to-petition-for-writ-of-certiorari-to-the-supreme-court-of-florida. Accessed August 19, 2025.
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IN THE
g>uprrmp ( ta r t uf tl)p Inttrb States
O c to b er T e r m , 1956
No.
T h e S ta te ox? F lo r id a , e x e e l . V ir g il D . H a w k in s ,
Petitioner,
V
T h e B oard o f C o n t r o l , e t a l .,
Respondents.
BRIEF FOR THE RESPONDENTS IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA
R ic h a r d W . E r v in
Attorney General
State of Florida
R a l p h E . O d u m
Assistant Attorney General
State of Florida
J o h n J . B l a ir
Assistant Attorney General
State of Florida
W il s o n W . W r ig h t
Special Assistant Attorney General
State of Florida
IN THE
^uprpmp GLxmtt of tty? Inttefe States
O c to b er T e r m , 1956
No,
T h e S t a t e oe F lo r id a , e x r e l . V ir g il D . H a w k in s ,
Petitioner,
V
T h e B oard o f C o n t r o l , e t a l .,
Respondents.
BRIEF FOR THE RESPONDENTS IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA
R ic h a r d W . E r v in
Attorney General
State of Florida
R a l p h E . O d u m
Assistant Attorney General
State of Florida
J o h n J, B l a ir
Assistant Attorney General
State of Florida
W il s o n W . W r ig h t
Special Assistant Attorney General
State of Florida
INDEX
Opinions Below _______________________________________________ X
Jurisdiction ______
Questions Presented
Statement _______
Argument _____________________________________________________ 24
Part One: The Law ________________________________________ 14
Part Two: Factual Considerations ___________________________ 28
Conclusion ___________________________________________________ 5g
Appendix A
Opinion of U. S. Supreme Court of March 12, 1956, in The State of
Florida, ex rel. Virgil D. Hawkins v. The Board of Control, et al. __ 60
Appendix B
House Concurrent Resolution No. 174 (Florida) _________________ 61
Appendix C
Report of the Florida Legislative Investigation Committee__________ 69
CITATIONS
Cases:
Alexander v. Hillman, 296 U. S. 222, 56 S. Ct. 204, 80 L. ed 192 18
Bowman v. Wathen, 1 How. 189, 11 L. ed 97__________________ 16
Bradenton v. State, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400____ 17
Bruce v. Tobin, 38 S. Ct. 7, 245 U.S. 18, 62 L. ed 1 2 3 __________ 19
Brown v. Board of Education of Topeka, 347 U.S. 483, 98 L. ed
873, 74 S. Ct. 686, 38 A.L.R. 2d 1180; and 349 U.S. 294, 75 S. Ct.
753, 99 L. ed 1083 _____________________________________1; 14) 17
Brown v. Dewell, 131 Fla. 566, 179 So. 695, 115 A.L.R. 857_____1 ’ 15
Burgess v. Seligman, 107 U.S. 20, 2 S. Ct. 10, 27 L. ed 359 ______ 26
Bute v. People of State of III, 68 S. Ct. 763, 333 U.S. 640, 92
L. ed 986 ------------------------------------------------------------------------- 25, 26
City of Safety Harbor v. State ex rel. Smith, 136 Fla. 636, 187 So.
173 ---------------------------------------------------------------------------------- 15
Eccles v. Peoples Bank, 333 U.S. 426, 68 S. Ct. 641, 92 L. ed 784 18
Feldman v. United States, 64 S. Ct. 1082, 322 U.S. 487, 88 L, ed
1408, 154 A.L.R. 982_______________________________________ 25
Fox Film Corp. v. Muller, 55 S. Ct. 444, 294 U.S. 696, 79 L. ed
1234, certiorari dismissed, 56 S. Ct. 183, 296 U.S. 207, 80 L.
ed 1 5 8 ___________________________________________________ ig
Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S. Ct. 618,
51 L. ed 1038 _____________________________________________ 18
Holliday v. Pacific Atlantic S.S. Co., D.C. Del. 1953, 117 F. Supp.
729, affirmed 212 F. 2d 206 ________________________________ 16
Hoxie v. N. Y., 73 A. 754, 82 Conn. 352 ______________________ 23
In re Briley’s Estate, 155 Fla. 798, 21 So. 2d 595 ______________ 25, 26
In re Morris, Ala., 9 Wall. 605, 19 L. ed 799 __________________ 16
In re Opinion of the Justices, 8 N.E. 2d 753, 297 Mass. 567 _______ 25
Page
I
to
b
o
to
Page
Konkel v. State, 170 N.W. 715, 168 Wis. 335 ______________ __ 23
Magwire v. Tyler, 17 Wall. 253, 21 L. ed 576 __________________ 19, 20
Martin v. Hunter’s Lessee, 1 Wheat. 304, 4 L. ed 97 __________19, 20
Mayo v. Polk County, 169 So. 41, affirmed 81 Law ed 376 ______ 44
Miami v. Huttoe, 40 So. 2d 899 _____ _______________________ 17
Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 62 S. Ct. 402, 86
L. ed 363 ______________________________________ ______........ 16
McCulloch v. Maryland, 4 Wheat. 316, 4 L. ed 579 ________ 19, 20, 24
Naim v. Naim 197 Va. 734, 90 S.E. 2d 849; 350 U.S. 985, 76 S.
Ct. 472, 100 L. ed 852 ________________ __________ ___ ____ ___ 14
Nelson v. Lindsey, 151 Fla. 596, 10 So. 2d 131 ______ _________ 17
New Jersey v. New York, 283 U.S. 473, 51 S. Ct. 519, 75 L. ed
1176 ----------------------------------------------------------------------------- --- 18
Parker v. Broom, 63 S. Ct. 307, 317 U.S. 341, 87 L. ed 315 ....... 23
Penn v. Tollison, 26 Ark. 545, 577 _________________ _________ 26
People v. Daly, 105 N.E. 1048, 212 N. Y. 183 ................................... 23
People of the State of New York v. State of New Jersey and Passaic
Valley Sewerage Commissioners, 256 U.S. 296, 41 S. Ct. 492, 65
L. ed 937 ______________________________________ __________ 18
Ryan v. State, 58 S. Ct. 233, 302 U. S. 186, 82 L. ed 187________ 23
Safety Harbor v. State, 136 Fla. 636, 187 So. 1 7 3 _____________ 17
Somlyo v. Schott, 45 So. 2d 502 ______________________ _____ 15
So. Fork Canal Co. v. Gordon, C. C. Cal. 1868, Fed case #13,189,
2 U.S. 479, 8 A.L.R. 279 ____________________________________ 16
Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55
L. ed 619 ________________________________________________ 18
Stanley v. Schwalby, 162 U.S. 255, 40 L. ed 960, 16 S. Ct. 754 ____19, 20
State ex rel American Legion 1941 Convention Corporation of Mil
waukee v. Smith, 293 N.W. 161, 235 Wise. 443 _______________ 25
State ex rel Bottome v. City of St. Petersburg, 126 Fla. 233, 170
So. 730 __________________________________________________ 15
State ex rel. Carson v. Bateman, 131 Fla. 625, 180 So. 2 2 ________ 15
State v. Daytona Beach, 129 Fla. 896, 176 So. 847 _____________ 17
State ex rel Gibbs v. Gordon, 138 Fla. 312, 189 So. 437 ________ 25
State ex rel Gibson v. City of Lakeland, 126 Fla. 342, 171 So.
227 ______________________________________________________ 15
State of Florida, ex rel. Virgil D. Hawkins v. Board of Control of
Florida, et al, 47 So. 2d 608 (1950), 53 So, 2d 116 (1951), 60 So.
2d 162 (1952), 83 So. 2d 20 (1955), 93 So. 2d 354 (1957). 342,
U.S. 877, 72 S. Ct. 166, 96 L. ed 659; 347 U.S. 971, 74 S. Ct.
783, 98 L. ed 1112; 350 U.S. 413, 76 S. Ct. 464, 100 L. ed 486;
reh. den. 351 U.S. 915, 76 S. Ct. 693, 100 L. ed 1449 ____1, 2, 3, 10, 28
State ex rel Long v. Carey, 121 Fla. 515, 164 So. 1 9 9___ 15
State v. Miami, 153 Fla. 90, 13 So. 2d 707 _________ 17
State ex rel Norman v. Holmer, 160 Fla. 434, 35 So. 2d 396 ____ 15
State v. West Palm Beach, 141 Fla. 244, 193 So. 297 ___ 17
State ex rel West Flagler Kennel Club v. Florida State Racing Com
mission, 74 So. 2d 691 ____________________________________ 15
Thornhill v. Kirkman, 62 So. 2d 740 _________________ _______ 44
II
Page
Touchton v. Fort Pierce, 109 F. 2d 3 7 0 ______________________ 17
United Automobile, Aircraft and Agricultural Implement Workers,
et al v. Wisconsin Employment Relations Board, et al., 351 U.S.
266, 76 S. Ct. 794, 100 L. ed 1162__________________________ 21
United Enterprises v. Dubey, 128 Fed. 2d 843, 87 L. ed 537 ___ 45
United States v. American Tobacco Co., 221 U.S. 106, 31 S. Ct.
632, 55 L. ed 663 ___________ _______________________________ 18
United States v. Morgan, 307 U.S. 183, 59 S. Ct. 795, 83 L. ed
1211______________________________________________________ 17
Urie v. Thompson, 69 S. Ct. 1018, 337 U.S. 163, 93 L. ed 1282 19
Westfall v. United States, 47 S. Ct. 629, 274 U.S. 256, 71 L. ed
1036 _______________________________________________________ 25
Williams v. Bruffy, 102 U.S. 248, 26 L. ed 135________________19, 20
Statutes:
United States Code, Title 28 _______________________________ 19
United States Code, Sections 1257(3), 1651(a) and 2106 of
Title 28 _________________________________________________ 2
Miscellaneous:
Congressional Record for 1956, Vol. 102, No. 54, p. 5092 ________ 38
Farewell Address of George Washington _________ _____ _ 24
Federalist P apers_____________________________ 23
First Inaugural Address, Thomas Jefferson _______________________ 23
Injunctions and Other Extraordinary Remedies, Section Edition, by
T. C. Spelling _____________________________________________ 15
Martin, John Bartlow, “The Deep South Says Never,” Saturday
Evening Post of June 15, 1957 _______________________________ 33
Myrdal, Gunnar, “An American Dilemma,” pages 58, 61 ________ 30
III
j^uprottr ( ta r t of tfyr InitrtJ Stairs
O c to b er T e e m , 1956
IN THE
No.
T h e S t a t e oe F lo r id a , e x e e l . V ir g il D. H a w k in s ,
Petitioner,
v.
T h e B oard oe C o n t r o l , e t a l .,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF FLORIDA
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinions of the United States Supreme Court are
reported as follows: State of Florida, ex rel. Virgil D.
Hawkins v. Board of Control of Florida, et al, 342 U.S.
877, 72 S.Ct. 166, 96 L.ed. 659; 347 U.S. 971, 74 S.Ct. 783
98 L.ed. 1112; 350 U.S. 413, 76 S.Ct. 464, 100 L.ed. 486';
reh. den. 351 U.S. 915, 76 S.Ct. 693,100 L.ed. 1449, Brown v.
Board of Education of Topeka, 347 U.S. 483, 98 L.ed. 873,
74 S.Ct. 686, 38 A.L.R. 2d 1180; and 349 U.S. 294, 75 S.Ct.
753, 99 L.ed. 1083. The opinions of the Florida Supreme
Court are reported as follows: State ex rel. Hawkins v.
Board of Control of Florida, et al, 47 So. 2d 608 (1950),
53 So. 2d 116 (1951), 60 So. 2d 162 (1952), 83 So. 2d 20
(1955), 93 So. 2d 354 (1957).
1
JURISDICTION
The jurisdiction of the Court is invoked under Sections
1257(3), 1651(a) and 2106 of Title 28 of the United States
Code.
QUESTIONS PRESENTED
May the Supreme Court of Florida in the exercise of
its discretion delay the issuance of its writ of mandamus
ordering petitioner’s admission to the University of Florida
when such court has before it evidence that to order im
mediate admission of petitioner at this time would work
a serious public mischief and would seriously interefere
with the proper operation of the State University System?
Did the Supreme Court of Florida act in violation of the
instructions issued by this Court on March 12, 1956, when,
predicated upon evidence received subsequent to the issu
ance of such instructions to the effect that immediate
admission of petitioner to the University of Florida would
create havoc in the State University System and cause
serious public mischief, said state court withheld the issu
ance of its writ of mandamus pending the disclosure of
evidence by petitioner that serious harm to the state and
school system would not result thereby?
Should this Court refuse to accept the findings and de
cision of the Florida Supreme Court and enter its own
judgment ordering the immediate admission of petitioner
to the University of Florida?
STATEMENT
The history of this case is found in State ex rel. Hawkins
v. Board of Control, et al, (Fla.) 47 So. 2d 608; (Fla.) 53
So. 2d 116, cert, denied 342 U.S. 877, 72 S.Ct. 166, 96 L,ed.
659; (Fla.) 60 So. 2d 162, cert, granted 347 U.S. 971, 74 S.Ct.
783, 98 L.ed. 1112; (Fla.) 83 So. 2d. 20, cert, denied 350 U.S.
413, 76 S.Ct. 464, 100 L.ed. 486, reh. denied 351 U.S. 915, 76
S.Ct. 693, 100 L.ed. 1449; (Fla.) 93 So. 2d 354.
2
On May 30, 1949, petitioner brought mandamus proceed
ings in the Florida Supreme Court against respondents to
compel his admission to the College of Law at the Uni
versity of Florida. The Court, on August 1, 1950, ruled
that similar facilities in the state for Negroes satisfied the
equal protection requirements of the Fourteenth Amend
ment. The Court did not enter a final order but retained
jurisdiction in order to permit the parties to seek further
relief at some later date. (Fla.) 47 So. 2d 608. On May
15, 1951, petitioner filed a motion again in the Florida
Supreme Court for a peremptory writ of mandamus. The
motion was denied on June 15, 1951, on the grounds that
no showing was made for the issuance of the writ. (Fla.)
53 So. 2d 116. Petitioner then filed a petition for writ of
certiorari in the United States Supreme Court. The petition
was denied on the grounds that no final judgment had
been entered. 342 U.S. 877. The petitioner filed his motion
for a peremptory writ of mandamus in the Florida Supreme
Court again, and it was denied August 1, 1952. (Fla.) 60
So. 2d 162. Reapplication was then made by petitioner to
the United States Supreme Court for a writ of certiorari.
On May 24, 1954, the United States Supreme Court re
manded petitioner’s cause to the Florida Supreme Court
with directions that such cause be reconsidered “ in the
light of the segregation cases decided May 17, 1954, Brown
v. Board of Education, etc., and conditions that now prevail
. . . in order that such proceedings may be had in the said
cause in conformity with the judgment and decree of this
(United States Supreme) Court above stated, as, according
to right and justice and the Constitution and Laws of the
United States, or to be had therein . . . ” State ex rel
Hawkins v. Board of Control, 347 U.S. 971, 74 S.C’t. 783,
98 L.ed. 1112.
Pursuant to the mandate of the Supreme Court of the
United States, the Florida Supreme Court, on July 31, 1954,
3
entered an order directing the petitioner to amend his
original petition in mandamus “ so as to place before this
(Florida Supreme) Court the issues raised by the original
petition ‘in the light of the segregation cases decided May
17, 1954, Brown v. Board of Education etc., and conditions
that now prevail,’ ” and directing the respondents “ to
amend their return so as to present to this Court any
answers they may have to said amended petition which
will enable this Court to carry out the mandate of the
Supreme Court of the United States.”
In due course, and prior to the ‘ ‘ implementation decree ’ ’
of the United States Supreme Court, respondent filed an
amended return which, among other defenses, stated “ the
admission of students of the Negro race to the University
of Florida, as well as to other institutions of higher learn
ing established for white students only, presents grave and
serious problems affecting the welfare of all students and
the institutions themselves and will require adjustments
and changes at the institutions of higher learning; and re
spondents cannot satisfactorily make the necessary changes
and adjustments until all questions as to time and manner
of establishing the new order shall have been decided on
further consideration of the United States Supreme Court.”
On October 19, 1955, the Supreme Court of Florida held,
in essence, that although petitioner may not be constitu
tionally denied admission to the University of Florida be
cause of race, nevertheless the possible threat of mischief
and economic havoc to the public and the state university
system, and the attendant possible need for time to assure
a proper and smooth transition to a new order in the State
University System, lent validity tô the above-mentioned
defense of respondents, which was. designed to establish a
predicate for an understanding of such need. The Supreme
Court of Florida therefore determined that at least a need
existed for intelligence in this regard before it could prop
erly issue its peremptory writ of mandamus. The Supreme
4
Court of Florida considered this determination a fortiori
essential and valid in light of this Court’s decision of May
31, 1955, herein referred to as the “ implementation de
cision,” wherein it was stated:
“ Full implementation of these constitutional principles
may require solution of varied local school problems.
School authorities have the primary responsibility of
elucidating, assessing, and solving these problems;
courts will have to consider whether the action of
school authorities constitutes good faith implementa
tion of the governing constitutional principles. Because
of their proximity to local conditions and the possible
need for further hearings, the courts which originally
heard these cases can best perform this judicial ap
praisal. Accordingly, we believe it appropriate to re
mand the cases to those courts.
“ In fashioning and effectuating the decrees, the courts
will be guided by equitable principles. Traditionally,
equity has been characterized by a practical flexibility
in shaping its remedies and by a facility for adjusting
and reconciling public and private needs. These eases
call for the exercise of these traditional attributes of
equity power.
“ At stake is the personal interest of the plaintiffs in
admission to public schools as soon as practicable on
a non-discriminatory basis. To effectuate this interest
may call for elimination of a variety of obstacles in
making the transition to school systems operated in
accordance with the constitutional principles set forth
in our May 17, 1954, decision. Courts of equity may
properly take into account the public interest in the
elimination of such obstacles in a systematic and effec
tive manner. But it should go without saying that the
vitality of these constitutional principles cannot be
allowed to yield simply because of disagreement with
them.
“ While giving weight to these public and private con
siderations, the courts will require that the defendants
make a prompt and reasonable start toward full com
pliance with our May 17, 1954, ruling. Once such a
5
start has been made, the courts may find that addi
tional time is necessary to carry ont the ruling in an
effective manner. The burden rests upon the defendants
to establish that such time is necessary in the public
interest and is consistent with good faith compliance
at the earliest practicable date. To that end, the courts
may consider problems related to administration, aris
ing from the physical condition of the school plant,
the school and transportation system, personnel, re
vision of school districts and attendance areas into
compact units to achieve a system of determining ad
mission to the public schools on a non-racial basis, and
revision of local laws and regulations which may be
necessary in solving the foregoing problems. They will
also consider the adequacy of any plans the defendants
may propose to meet the problems and to effectuate
a transition to a racially non-discriminatory school
system. During this period of transition, the courts
will retain jurisdiction of these cases.
“ The judgments below, except that in the Delaware
case, are accordingly reversed and remanded to the
district courts to take such proceedings and enter such
orders and decrees consistent with this opinion as are
necessary and proper to admit to public schools on a
racially non-discriminatory basis with all deliberate
speed the parties to these cases. . . .
“ It is so ordered.”
The Supreme Court of Florida further indicated that the
clear import of the “ implementation decision” was that
State Courts shall apply equitable principles in the deter
mination of the time when segregated schools shall become
integrated. Borrowing from the language of the ‘ ‘ implemen
tation decision” the Florida Court said: “ these cases call
for the exercise by the Courts of the traditional powers of
an equity Court with particular reference to ‘its facilities
for adjusting and reconciling public and private needs,’
and the ‘practical flexibility in shaping its remedies.’ ”
The Supreme Court of Florida decided that pursuant to
6
well established principles of equity and the directive of
the “ implementation decision” to the effect that the Court
retain jurisdiction “ during this period of transition,” the
Court “ may properly take into account the public interest”
as well as “ personal interest” of petitioner in the elimina
tion of such obstacles as might impede a systematic and
effective transition to the accomplishment of the results
ordered by the United States Supreme Court.
It was the opinion of the Supreme Court of Florida that,
both under the equitable principles applicable to mandamus
proceedings and the express command of the United States
Supreme Court in its “ implementation decision,” the exer
cise of a sound judicial discretion requires the Court to
withhold, for the present, the issuance of a peremptory writ
of mandamus in this cause pending subsequent determina
tion of law and fact as to the time when the petitioner
should be admitted to the University of Florida School of
Law. The Florida Supreme Court, therefore, appointed
the Honorable John A. H. Murplxree, Circuit Judge, as
Commissioner of the Court, to take testimony from peti
tioner and respondents and such witnesses as they may
produce material to the issues alleged in the defense of the
respondents as follows:
“ That the admission of the students of the Negro race
to the University of Florida, as well as to the other
state institutions of higher learning established for
white students only, presents grave and serious prob
lems affecting the welfare of all students and the
institutions themselves, and will require numerous ad
justments and changes at the institutions of higher
learning; and respondents cannot satisfactorily make
the necessary changes and adjustments until all ques
tions as to time and manner of establishing the new
order shall have been decided on the further considera
tion thereof by the United States Supreme Court, at
which time the necessary adjustments can be made as
a part of one over-all pattern for all levels of education
7
as may be finally determined, and thereby greatly
decrease the danger of serious conflicts, incidents and
disturbances. . . . ”
Judge Murphree was directed to file a transcript of such
testimony, without recommendations or findings of fact,
to this Court within four months from the date of the order,
which was October 19, 1955. (Fla.) 83 So. 2d 20.
On January 23, 1956, respondent requested an extension
of time for the filing of such information by the Commis
sioner for the following reasons:
(1) The assistant attorney general who handled the
cause for respondents in the trial Court and the
Supreme Court died during the pendency of this
cause.
(2) The scope of the survey is so extensive that the
information cannot be available for the Court by
the due date of February 19, 1956, in that:
(a) such survey requires a study of student, faculty
and parent attitudes toward integraton of Ne
groes at the University of Florida Law School;
and
(b) it will require a survey or analysis of the facili
ties, students and faculties at Florida Agri
cultural and Mechanical University (Negro in
stitution), including an accurate estimate, if
possible, as to number of students now attend
ing such university who would seek transfer
to the University of Florida School of Law, or
to another school; and
(c) it will require a determination as to whether
such order would result in an increase or de
crease in the student population at the Univer
sity of Florida which had not been contemplated
by school authorities and for which no adminis
trative planning has been accomplished; and
(d) such study will require consideration of the
phenomenal growth of Florida’s population
8
which is directly related to overcrowded con
ditions of the universities and public schools
of the state and in which population increase,
economic growth and swiftly changing social
structure places Florida in a unique position
and creates problems relating to school segre
gation which do not exist to the same degree
in other southern states; and
(e) the survey will require a thorough study and
analysis to be made of the existing facilities
at the University of Florida with regard to
dormitory space, food and recreational facili
ties, and the adequacy of such facilities to
meet the needs of the present enrollment of a
drastically increased or decreased enrollment
which might result if Negroes are admitted to
the University of Florida Law School at this
time; and
(f) such survey will require a review of available
data relating to known achievement level dis
tinctions between white and Negro high school
and college students in Florida, and a com
parative analysis of the effect of such distinc
tions upon administrative efforts to maintain
and improve scholastic standards at Florida
institutions of higher learning in general and
upon the University of Florida Law School
specifically if Negro students are integrated
into the white universities at this time.
Respondents’ request for extension of time indicated that
surveys and studies were presently being made relating
to such problems and that such surveys and studies could
not be completed and analyzed with any degree of accuracy
prior to the expiration of the present school term. Re
spondents also indicated that petitioner, in any event, would
not be eligible for enrollment at the University of Florida
School of Law until September, 1956, when the regular
school term commences. It has been a long standing policy
at the University of Florida that beginning law students
cannot begin at the Summer Session.
9
The Florida Supreme Court granted respondents until
May 31, 1956, in which to submit the requested information.
Petitioner, on January 16, 1956, rather than avail himself
of the opportunity of presenting evidence before the court
appointed Commissioner, sought in this Court the issuance
of a writ of certiorari or any common law writ which might
possibly be applicable to an interlocutory judgment of this
nature.
On March 12, 1956, this Court denied petitioner’s request
for certiorari, and in the same order vacated its mandate
of May 24, 1954, to the Supreme Court of Florida (347 U.S.
971), and substituted in lieu thereof an order instructing
the Supreme Court to consider as applicable to the instant
case certain other cases decided by this Court prior to
the Brown decision and the “ implementing decision” and
relating to graduate professional schools. 350 U.S. 413
(App. A.)
Respondents requested a rehearing for the purpose of
clarifying the intent of such substituted order, but such
rehearing was denied. 351 U.S. 915.
Pursuant to the directions contained in the October 19,
1955, opinion of the Supreme Court of Florida, the court-
appointed Commissioner, John A. H. Murphree, Circuit
Judge, held testimony on May 21, 1956, on the question
relating to the effect, if any, on the public, and State Uni
versity System, of an immediate admission of petitioner to
the University of Florida. Counsel of record for the re
spective parties were duly notified of the hearing, but
neither the petitioner nor his counsel made an appearance.
As part of the record Judge Murphree made the following
statement:
“ I would say for the record that at a conference last
January, about January 27, between myself as Com
10
missioner in this cause, and Mr. Odom, of the Attorney
General’s office, and Mr. Hill, who represents Hawkins,
that this present hearing was scheduled at 9:30 this
morning, and that I advised the parties at that time
that the Commissioner would expect to receive the
evidence submitted by the Board of Control first and
would then hear from Hawkins. On May 14 I wrote
to counsel for the respective parties in this case and
reminded them of my letter of January 27 which sched
uled this hearing for this morning at 9:30; and when
Hill and Hawkins did not show up at 9:30 this morning
I telephoned Mr. Hill’s office to find out if by chance
he had met with mishap on his way to Gainesville,
and his secretary advised that he did not intend to
attend the hearing. As Commissioner, I, therefore,
assume that nothing will be presented on behalf of
Hawkins. Unless the Board of Control has something
further, this hearing is concluded.”
At this hearing the Commissioner accepted into evidence,
after the proper legal predicate was laid, a survey con
ducted by the State Board of Control. This survey was
instituted in an effort to make a determination as to
whether serious administrative and other problems would
be encountered as a result of the Florida Supreme Court
decree that a member of the Negro race should not be denied
admission to the University of Florida. A factual compila
tion of the attitudes of the students, parents of the students,
faculties, alumni, and health service employees, of the three
State universities toward desegregation, was contained in
such survey, including the attitude of parents of white and
Negro high school seniors toward desegregation.
Being germane to the question, the survey also included
a study made by the Board of Control of the physical facili
ties at the three State universities to determine their current
use, what additional facilities might be available because of
anticipated construction, and whether any shortage might
exist by the fiscal year 1959-60. The study included a
11
survey of classroom, food service, health service, housing,
library, and recreational facilities.
On May 28, 1956, the Commissioner filed a transcript of
the above-mentioned testimony “ without recommendations
or findings of fact” to the Supreme Court of Florida in
accordance with such Court’s directive of October 19, 1955.
83 So. 2d 20.
On June 20, 1956, petitioner applied to the Supreme
Court of Florida for the issuance of a peremptory writ of
mandamus ordering his immediate admission to the Uni
versity of Florida. A hearing was held on such application
before the Supreme Court of Florida on September 4, 1956,
at which time both parties to the cause presented their
respective arguments.
On February 19, 1957, respondents moved the Supreme
Court of Florida to refer this cause to a Commissioner
appointed by the court “ for the purpose of receiving testi
mony from the Petitioner and Respondents and such other
witnesses as either party may produce relative to matters
previously unknown to Respondents, and recently discov
ered evidence affecting the bona fides of this cause, said
evidence having been received by the State of Florida
Legislative Investigating Committee on February 4 through
February 7, 1957, or at times subsequent thereto.”
The motion for referral to a Commissioner for the purpose
of taking testimony on the bona fides of this cause was
denied by the Supreme Court of Florida on February 26,
1957, which order of denial was subsequently corrected on
March 5,1957. On May 31, 1957, subsequent to such denial,
an investigating committee of the Florida Legislature cre
ated for the purpose of investigating groups, both white
and Negro, suspected of functioning for the purpose of
creating racial strife and discord within the State of
12
Florida, submitted a report of its findings and recommen
dations. (App. C.) One of the Committee’s recommenda
tions requested that a copy of the testimony given before
such committee “ be made available to the proper officials
of the Florida Bar and the state attorneys having juris
diction where the hearings were held, with the request
that the same be carefully studied and if violations of law
or ethics have occurred that proper proceedings be insti
tuted against any such offender.” Such testimony included
statements made by Horace E. Hill, the original counsel
of record for petitioner in this cause. On May 27, 1957,
said counsel of record, alleging ill health, requested and
received the permission of the Supreme Court of Florida
to withdraw from this cause.
On March 8, 1957, the Supreme Court of Florida rendered
its decision to defer final judgment in this cause, and to
delay the issuance of its peremptory writ of mandamus in
light of properly presented factual information prompting
the application of principles of equity necessary in the
consideration of the issuance of such writ, and delaying
the issuance of such writ until the facts will permit, or
until the petitioner is prepared to present testimony which
will obviate the necessity of applying such principles.
13
ARGUMENT
P A R T I: THE LAW
Argument of law in response to questions presented in
Petitioner’s brief:
This Court, in its order to the Supreme Court of Florida
of March 12, 1956, said: . . The judgment is vacated
and the case is remanded on the authority of the Segre
gation Cases decided May 17, 1954, Brown v. Board of
Education, 347 U.S. 483. As this case involves the admis
sion of a Negro to a graduate professional school, there is
no reason for delay. He is entitled to prompt admission
under the rules and regulations applicable to other quali
fied candidates.” (Emphasis supplied.) (App. A.) Re
spondents and the Supreme Court of Florida, in light of
sound reason and the necessary employment of legal and
equitable principles, can only logically interpret the lan
guage of this order as having reference to the question of
race. Argumentum ah inconvenienti plurimum valet in lege.
Aside from race, it is manifest that constitutional, legal
and practicable reasons may exist at times to deny or
delay the admission of an applicant to a state university,
whether he be white or Negro. It is also evident that if
petitioner’s interpretation were accepted it would abrogate
the long-established rule which denies to federal courts the
right to regulate or control long-established rules of pro
cedure adopted by the state courts for the administration
of justice therein, cf. Naim v. Naim, 197 Va. 734, 90 S.E. 2d
849; 350 U.S. 985, 76 S.Ct. 472, 100 L.ed. 852.
In the case at bar, the Supreme Court of Florida adhered
to the above-mentioned order of this Court that as to the
issue of race there is no reason for delaying petitioner’s
admission to the University of Florida. However, such
order did not foreclose the authority of the Supreme Court
of Florida to exercise its discretion to determine that it
14
was necessary and essential to consider other issues of
vital importance to the public interest and safety of the
State of Florida before issuing its peremptory writ of
mandamus.
Even in a case where a clear legal right is shown, the
exercise of jurisdiction to grant a writ of mandamus rests,
to a considerable extent, within the sound discretion of the
Court, subject, however, to the well-settled principles which
have been established by the courts or fixed by statute;
and evidence will usually be received, upon request of the
respondent, to show that the writ should not issue. Re
spondents understand of course that such discretion is not
absolute but yet the court may refuse the issuance of such
writ even though warranted by the rules of law, if hardship
or injustice would result to the opposite or to third parties
from granting it. See Injunctions and Other Extraordinary
Remedies, Second Edition, by T. C. Spelling.
The Supreme Court of Florida has held on numerous
occasions that the writ of mandamus is discretionary and
is only granted in the sound discretion of the court, and
will decline its use if to do so would tend to work a serious
mischief. State ex rel Long v. Carey, 121 Fla. 515, 164 So.
199; Brown v. Dewell, 131 Fla. 566, 179 So. 695, 115 A.L.R.
857; State ex rel West Flagler Kennel Club v. Florida State
Racing Commission, 74 So. 2d 691; State ex rel Norman v.
Holmer, 160 Fla. 434, 35 So. 2d 396; Somlyo v. Schott, 45
So. 2d 502; City of Safety Harbor v. State ex rel Smith,
136 Fla. 636, 187 So. 173; State ex rel Carson v. Bateman,
131 Fla. 625, 180 So. 22; State ex rel Gibson v. City of
Lakeland, 126 Fla. 342, 171 So. 227; State ex rel Bottome
v. City of St. Petersburg, 126 Fla. 233, 170 So. 730.
Where a superior court issues its mandate to the lower
court with instructions to accomplish a certain act but
without indicating how such act shall be performed, it has
15
been held that a large measure of discretion exists as to
the manner of performance. Holliday v. Pacific Atlantic
S.S. Co., J3.C. Del. 1953, 117 P.Supp. 729, affirmed 212 F. 2d
206. The duty of the court below to obey and give effect
to the mandate of the Supreme Court is effective only to
the extent practicable. In re Morris, Ala., 9 Wall. 605,
19 L.ed. 799.
The action of the Supreme Court of Florida in delaying
the issuance of its writ of mandamus was not contrary to
the letter or spirit of the mandate of this court issued on
March 12, 1956. Subsequent to such order of this Court
the Supreme Court of Florida obtained evidence indicating
that issues other than race existed which required the
application of equitable principles prompting the delay of
such writ. This action was in harmony with the principle
that the mandate of the Supreme Court must be promptly
and implicitly enforced by the Court below unless modified
or restrained by subsequent evidence. So. Fork Canal Co.
v. Gordon, C.C.Cal. 1868, Fed. case #13,189, 2 TJ.S. 479,
8 A.L.R. 279.
The Florida Supreme Court upon receipt of testimony
received by its Commissioner considered it essential to
apply equitable principles and thereby delay the issuance
of its writ. It is a well-established principle that a court
of equity is never active against conscience or public con
venience. Bowman v. Wathen, 1 How. 189, 11 L.ed. 97.
This Court has always, felt it proper to apply principles of
equity against the enforcement of legal doctrines upon the
disclosure that the public interest might be affected ad
versely by the immediate enforcement of a legal decree.
It is also manifest that courts of equity may appropriately
withhold their aid when the plaintiff is using the writ
asserted in a manner contrary to the public interest. Morton
Salt Co. v. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86
L.ed. 363. Although mandamus is a common-law remedy,
16
the Supreme Court of Florida has consistently held that
the application and enforcement of such writ should be
governed by equitable principles. State v. Daytona Beach,
129 Fla. 896, 176 So. 847; State v. West Palm Beach, 141
Fla. 244,193 So. 297; Miami v. Huttoe, 40 So. 2d 899; Safety
Harbor v. State, 136 Fla. 636, 187 So. 173; Bradenton v.
State, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400: Nelson v.
Lindsey, 151 Fla. 596, 10 So. 2d 131; State v. Miami, 153
Fla. 90, 13 So. 2d 707; State v. Board of Control, 83 So. 2d
20. Such is also true of the federal application of such writ.
Touchton v. Fort Pierce, 109 F. 2d 370.
The Supreme Court of Florida, in light of testimony re
ceived by its Commissioner, considered it necessary to
adopt these long adhered to principles in order to avoid
public mischief and the occurrence of serious administra
tive problems in the operation of the State University
System. These considerations are manifestly essential if
an orderly and peaceful transition to the new order created
by the Brown decision is to be made. The extent to which
a court of equity may grant or withhold its aid and the
manner of molding its remedies may be dictated or effected
by the public interest involved. United States v. Morgan,
307 U.S. 183, 59 S.Ct. 795, 83 L.ed. 1211.
The State of Florida has experienced success in main
taining an emotional equilibrium in the wake of this Court’s
ruling prohibiting segregation in the public schools. This
is attributable to the application of long-established equita
ble principles by the Supreme Court of Florida in dealing
with this problem. Traditionally, equity has been charac
terized by practicable flexibility in shaping its remedies
and by the facilities for adjusting and recognizing public
and private needs. Brown v. Board of Education of Topeka,
349 U.S. 294, 75 S.Ct. 753, 99 L.ed. 1083. In some cases
it is essential that a court apply equitable principles in
17
order to strike a proper balance between the needs of the
plaintiff and the consequence of giving the desired relief.
Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.ed.
784. The necessary flexibility of established forms em
ployed by courts of equity permit proceedings and remedies
to be adapted to the circumstances of each individual case
and their formulation in such a manner as to safeguard,
adjust and enforce the rights of all parties. Alexander v.
Hillman, 296 U.S. 222, 56 S.Ct. 204, 80 L.ed. 192.
The Supreme Court of Florida in its last decision, predi
cated upon the evidence before it, decided that it should
delay the issuance of its writ at this time. Having so
decided, the Supreme Court of Florida deferred final judg
ment and offered petitioners an opportunity to present
evidence before it, at any time, which would indicate that
such a writ could be issued without attendant mischief.
Deferring judgment and permitting time is not novel, this
Court having consistently permitted time in the implemen
tation of decrees involving long-established public policy
which affected the public interest. Recognizing that certain
decrees present an urgent need for adjustment this Court
has permitted time in which to overcome the many prob
lems attendant in such adjustment. United States v. Amer
ican Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.ed. 663;
Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502,
55 L.ed. 619. The need for a period of gradual transition
in some cases has been held by this Court to be a valid and
necessary consideration. Hew Jersey v. New York, 283 U.S.
473, 51 S.Ct. 519,75 L.ed. 1176; Georgia v. Tennessee Copper
Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.ed. 1038; People of the
State of New York v. State of New Jersey and Passaic
Valley Sewerage Commissioners, 256 U.S. 296, 41 S.Ct. 492,
65 L.ed. 937.
The Supreme Court of Florida having deferred judgment,
petitioner’s request for certiorari is premature inasmuch
18
as such writ is applicable to final judgments. Fox Film \
Corp. v. Muller, 55 S.Ct. 444, 294 U.S. 696, 79 L.ed. 1234, j
certiorari dismissed, 56 S.Ct. 183, 296 U.S. 207, 80 L.ed. 158; j
Bruce v. Tobin, 38 S.Ct. 7, 245 U.S. 18, 62 L.ed. 123; Urie v./
Thompson, 69 S.Ct. 1018; 337 U.S. 163, 93 L.ed. 1282.
Petitioner cites five eases in his brief for the proposition
that this Court has authority under Title 28, United States
Code, to enter its own judgment in a case of this nature,
in that “ in the past (it) has issued such judgments, espe
cially in situations where a state court has failed to act in
conformity with a prior mandate of this Court.” The cases
cited for such proposition are: Martin v. Hunter’s Lessee,
1 Wheat. 304, 4 L.ed. 97; McCulloch v. Maryland, 4 Wheat.
316, 4 L.ed. 579; Magwire v. Tyler, 17 Wall. 253, 21 L.ed.
576; Williams v. Bruffy, 102 U.S. 248, 26 L.ed. 135; and
Stanley v. Schwalby, 162 U.S. 255, 40 L.ed. 960,16 S.Ct. 754.
A valid distinction exists between each of the cited cases
and the case at bar. In both Martin v. Hunter’s Lessee,
supra, and Williams v. Bruffy, supra, the cases were ap
pealed to this Court and subsequently reversed and re
manded with directions to the Virginia Court of Appeals.
In both cases the Virginia Court of Appeals questioned
the authority of this Court to issue such mandate. In the
Martin case, the Virginia Court said, “ This Court is unani
mously of the opinion that an appellate power of the Su
preme Court of the United States does not extend to this
Court . . . ” In the Williams case, the same court said,
“ For these reasons this Court, with highest respect and
consideration for the Supreme Court of the United States,
must decline to take any further action with respect to
the mandate of said court.”
In Magwire v. Tyler, supra, the case was remanded by
the United States Supreme Court on second hearing to the
Supreme Court of Missouri with directions. The Supreme
19
Court of Missouri carried out the minority portion of the
mandate and then ignored any authority of this Court in
such regard by dismissing the case. On the third hearing
of this case this Court said, “ The Missouri Supreme Court
has no power to evade or reverse the United States Supreme
Court. ’ ’
It is true that in the case of McCulloch v. Maryland,
supra, this Court entered its own judgment but it is equally
true that such judgment was not the result of the refusal
of a state court to obey a prior mandate of this Court.
Stanley v. Schwalby, supra, is cited by petitioner as a
case wherein this Court remanded a case and ordered its
own judgment (see footnote 1, page 2, Petitioner’s brief).
It is to be noted, however, from a reading of the opinion
of this case, that the judgment was reversed by this Court
and the case was remanded “ with instructions.”
Respondents consider it equally important to point out
that the aforementioned cases cited by petitioner in his
brief range chronologically from 1816 to 1895, and deal
with a variety of subjects, none of which are germane to
the subject at hand: ‘rA treaty and title to land” (Martin
v. Hunter); “ Federal Banks v. State Taxation” (McCulloch
v. Maryland); “ Right to title of real property involving a
Secretary of Interior’s ruling” (Magwire v. Tyler); “ Debts
and rights of citizens of northern and southern states after
the Civil W ar” (Williams v. Bruffy); and “ Right of title
to real property occupied by Federal troops” (Stanley v.
Schwalby).
Not only are the points for which the above cases are
cited distinguishable from the case at bar but the facts
involved and the entire surrounding circumstances in each
of the cases are far afield from the interest at hand. The
above cases are cited by petitioner in his brief for the
20
proposition that this Court should consider that the Su
preme Court of I lorida has disobeyed this Court ’s mandate
of March 12, 1956, and should therefore enter its own judg
ment. A careful study of the proceedings of the Supreme
Court of Florida subsequent to the issue of this Court’s
mandate of March 12, 1956, will show that the actions of
the Supreme Court of Florida have been completely dis
similar to the actions of the inferior courts in the cited
cases. The Supreme Court of Florida has neither disobeyed
nor evaded the mandate of this Court. Such cases did not
involve the public interest and welfare of a sovereign state
to the degree manifest in the case at bar and should there
fore have no applicability or persuasion to the decision of
the Supreme Court of Florida which is predicated entirely
on the grounds that it has the duty, responsibility, and the
inherent authority to act in such a way as to avoid public
mischief in this state. The Supreme Court of Florida has
indicated its willingness to carry out this Court’s mandate
without causing public mischief.
On June 4, 1956, this Court entered an order in the case
of United Automobile, Aircraft and Agricultural Imple
ment Workers, et al v. Wisconsin Employment Relations
Board et al, 351 U.S. 266, 76 S.Ct. 794, 100 L.ed. 1162 and,
where applicable to the instant case, stated: “ the dominant
interest of the state in preventing violence and property
damage cannot be questioned. It is a matter of genuine
local concern. The states are the natural guardians
against public violence. It is the local communities that
suffer most from the fear and loss occasioned by coercion
and destruction. We would not interpret an Act of Congress
to leave them powerless to avert such emergencies without
compelling directions to that effect. We hold that Wis
consin may enjoin the violent Union conduct herein in
volved. The fact that Wisconsin has chosen to entrust its
powers to a Labor Board is of no concern to this Court.”
21
This case clearly recognizes the constitutional powers of
of states to exercise reasonable and proper authority to
avoid disorder, and, in the language of this Court, to act
as “ the natural guardians of the people against violence.”
The only distinction which may be made in the Wisconsin
case, supra, and the case at bar, is that in the Wisconsin
case this Court was considering a conflict between an Act
of Congress and a Wisconsin state statute providing ad
ministrative safeguards. In the case at bar there is no
conflict between Federal and state laws, since Congress
has not enacted any legislation on the subject of state school
segregation, and the only apparent conflict is whether this
Court’s previous pronouncements on the issue of racial
segregation in public institutions of learning should be in
terpreted and enforced in a manner that refuses to recog
nize, and over-rides, the inherent powers of the State of
Florida to safeguard the peace and welfare of its people
through the administrative processes provided by state
constitutional and legislative provisions, and by the appli
cation of equitable principles in the public interest by the
Supreme Court of Florida.
In certain areas of government, States’ rights have been
surrendered to the Federal Government, but in such cases
the avenue by which the United States Supreme Court en
ters the State Judiciary is by certiorari, a privilege granted
to the Supreme Court by the States. In no instance has
the Supreme Court been given the “ right” to reply to cer
tiorari except by “ mandate” and “ direction” to the state
courts. Should the United States Supreme Court issue a
direct order to the Board of Control and by-pass the State
Court, it would not only be usurping its power but it would
deny the people of the State of Florida their rights to the
judicial discretion which might otherwise be exercised by
the Supreme Judiciary of this State, a body which is far
more familiar with the problems of the people of Florida
than any other court in the Union.
22
It is a fundamental principle of law that a state has all
the sovereign powers of an independent nation over all
persons within its territorial limits subject to the restraints
of the Federal Constitution, Ryan v. State, 58 S.Ct. 233,
302 U.S. 186, 82 L.ed. 187; Parker v. Brown, 63 S.Ct. 307,
317 U.S. 341, 87 L.ed. 315.
The dual nature of the American Government, while
simple in theory, frequently presents practical complexities
which are difficult to harmonize. People v. Daly, 105 N.E.
1048, 212 N.Y. 183. No boundary separating the field of
state and federal control can be marked out for the reason
that in many cases they overlap, and for this reason it may
be difficult at first to determine which court has authority
to operate within the state. Konkel v. State, 170 N.W. 715,
168 Wis. 335.
Under the Tenth Amendment, the Constitution recog
nizes the necessary independent existence of the states
within their proper spheres and their attendant indepen
dent authority. Hoxie v. N.Y., 73 A. 754, 82 Conn. 352. In
this regard the Federalist Papers contain the following
statement:
“ The powers delegated by the proposed constitution
to the federal government are few and defined. Those
which are to remain in the state government are nu
merous and indefinite. The former will be exercised
principally upon external objects, as war, peace, nego
tiation, and foreign commerce; with which last the
power of taxation will, for the most part, be connected.
The powers reserved to the several states will extend
to all the objects which, in the ordinary course of
affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement and
prosperity of the state.”
Thomas Jefferson’s first Inaugural Address stressed the
23
importance of permitting the individual states to manage
their internal operations when he stated:
“ I will compress them (said the President) within the
narrowest compass they will bear, stating the general
principle, but not all its limitations. Equal and exact
justice to all men, of whatever state or persuasion, re
ligious or political; peace, commerce, and honest friend
ship with all nations, entangling alliances with none;
the support of the State Governments in all their rights,
as the most competent administrations for our domes
tic concerns and the surest bulwarks against anti
republican tendencies; . . (emphasis supplied)
The importance of this federal-state relationship was
noted by Chief Justice Marshall in McCulloch v. Maryland,
4 Wheat. 316, when he stated:
“ No political dreamer was ever wild enough to think
of breaking down the lines which separate the states
and of compounding the American people into one
common mass.”
George Washington pointed up this important consid
eration when he stated in his Farewell Address:
“ If, in the opinion of the people, the distribution or
modification of the constitutional powers be in any
particular wrong, let it be corrected by an amendment
in the way which the constitution designates. But let
there be no change by usurpation, for, though this, in
one instance, may be the instrument of good, it is the
customary weapon by which free governments are
destroyed. The precedent must always greatly over
balance in permanent evil any partial or transient
benefit which the use may at any time yield.”
Permitting the individual state to handle without inter
ference matters of strictly local concern is in harmony with
the principle that every state as an integral member of the
24
Federal Nation has the duty to aid in the preservation of
the Nation and to that end to do everything within its means
and power. State ex rel American Legion 1941 Convention
Corporation of Milwaukee v. Smith, 293 N.W. 161, 235
Wise. 443.
It is equally true that the Federal Government owes the
same obligation to the states to aid in the preservation
thereof by contributing to the peace and harmony therein.
While there are two distinct sovereignties, federal and
state, they are designed and expected to be adapted to
each other to work together in harmony, the Federal Gov
ernment exercising those powers granted to it by the States,
each mutually and independent of the other. See Feldman
v. United States, 64 S.Ct. 1082, 322 U.S. 487, 88 L.ed. 1408,
154 A.L.R. 982; In re Opinion of the Justices, 8 N.E. 2d
753, 297 Mass. 567; State ex rel Gibbs v. Gordon, 138 Fla.
312, 189 So. 437. State governments possess all the powers
incident to political government and not delegated to the
United States. See Bute v. People of State of 111., 68 S.Ct.
763, 333 U.S. 640, 92 L.ed. 986.
Although the sovereign states have delegated exclusive
jurisdiction in certain enumerated eases, such has not been
done in the field of education and, hence, in this and other
such matters the dual sovereignty of the State and the
United States continue to exist. See Westfall v. United
States, 47 S.Ct. 629, 274 U.S. 256, 71 L.ed. 1036. The line
of operation between the United States and the several
states as to jurisdiction and sovereignty is clear in its
constitutional aspects and, although it is sometimes diffi
cult to define, it is sharply maintained. In re Opinion of
the Justices, supra.
It is and has been established policies of both State
and Federal Governments to treat possible conflicts be
tween their powers in such a manner as to produce as little
25
conflict and friction as possible. Bute v. People of Illinois,
supra. Where two sovereignties operate in the same area,
one with delegated and the other with reserved powers,
if conflicts arise in the exercise of some spheres of power,
they should be resolved in a way that neither sovereignty
will be hampered in the exercise of a power in which the
public welfare requires that it be the supreme exponent.
See In re Briley’s Estate, 155 Fla. 798, 21 So. 2d 595.
The state and federal government should operate in
perfect harmony. Penn v. Tollison, 26 Ark. 545, 577. This
Court considered the importance of this maxim when, in
Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.ed 359,
it stated: “ For the sake of harmony and to avoid confusion,
the Federal Courts will lean towards an agreement of views
with the state courts if the question seems to them balanced
with doubt. Acting on these principles, founded as they
are on comity and good sense, the Courts of the United
States, without sacrificing their own dignity as independent
tribunals, endeavor to avoid, and in most cases do avoid
any unseemly conflict with the well-considered decisions
of the state courts.”
Petitioner would have this Court assume that the Su
preme Court of Florida has arbitrarily flouted its mandate.
This is a subtle but oft-used method of influencing another
to gain an objective by suggesting that such other’s rightful
prerogatives and authority have been flagrantly violated
by the one sought to be worsted. It is an appeal in part
to pride and the attribute of superiority. However, we
do not believe this high Court will be so subtly and psycho
logically digressed from the law to an unwarranted assump
tion that its superiority has been flouted.
This Court will recognize that the Supreme Court of
Florida is conscious of its duty and responsibility in the
case; that the Florida Court after due investigation is
26
seriously concerned with factual conditions other than race;
and that it is not flouting but it is attempting to avoid
untoward events and protect petitioner and others from a
premature and mischief provoking contretemps.
This Court we believe will not arrogantly brush aside
as impertinent a delay by the Supreme Court of Florida
based on factual considerations and local conditions. Courts
do not move on predicates which allow no consideration of
facts or conditions. Equity is not arrogant. It proceeds
cautiously in the light of facts and the public interest.
We sincerely believe that in this dilemma where there
is in process an experimentation in seeking to adjust legal
rights with customs, usages, traditions, prior laws, the high
Court of this Nation will welcome the counsel, the prudence,
and the careful considerations of a state appellate court
unless and until it is shown that the latter is acting in bad
faith. We submit bad faith is not shown on the part of
the Supreme Court of Florida by petitioner, rather peti
tioner in his extreme desire to win his point at all costs
would have this great Court completely disregard and
peremptorily strike down the very moderate, mild and
reasonable determination of the Florida Court that some
delay is expedient for reasons other than race.
27
PART II
FACTUAL CONSIDERATIONS
The question of the immediate admission of a student
of the Negro race to the University of Florida cannot be
considered as isolated from broad general considerations
involving both legal and factual matters which result in
the social dilemma of racial segregation.
The prime issue here is one of fact, not law. The two
should not be confused. This Court overlooked this con
sideration when it stated in its March 12, 1956, opinion
in this case (State of Florida ex rel. Virgil Hawkins vs.
Board of Control, 350 U.S. 413, 100 L.ed. 486, 76 S.Ct.
464), that it had already ordered the admissionfos a matter
of legal right) of negroes to institutions of higher learning
in three other states and that therefore “ there is no reason
for delay” in Florida.
Such an inference assumes without proof of any kind
that the factual situation some years ago in university
integration cases in other states is identical to the factual
situation in Florida in 1956.
To rely on a previous legal ruling as to constitutional
rights in Oklahoma as authority for an assumption as to
factual conditions in Florida is illustrative of the common
fallacy in logic termed “ irrelevant conclusion” or possibly,
if it is blindly adhered to, argmnenhum ad baculum (appeal
to force).
In its opinion in this case filed by the Supreme Court of
Florida on March 8, 1957, the court said:
“ It is unthinkable that the Supreme Court of the
United States would attempt to convert into a writ
of right that which has for centuries at common law
and in this state been considered a discretionary writ;
28
nor can we conceive that that court would hold that
the highest court of a sovereign state does not have
the right to control the effective date of its own dis
cretionary process. Yet, this would be the effect of
the court’s order, under the interpretation contended
for by the Eelator. We will not assume that the court
intended such a result. ’ ’
Speaking further the court said:
“ We cannot assume that the Supreme Court intended
to deprive the highest court of an independent sover
eign state of one of its traditional powers, that is, the
right to exercise a sound judicial discretion as to the
date of the issuance of its process in order to prevent
a serious public mischief.”
In support of these contentions and its findings that the
writ sought by the petitioner in this case should be delayed
in the interest of the public welfare, the Supreme Court of
Florida reviewed briefly the facts developed by a commis
sioner appointed by the court and submitted to it. It took
note of the fact that although the Eelator (petitioner) had
due notice and an opportunity to be heard at all hearings
scheduled by the commissioner, he did not appear nor did
he attempt to present any testimony in support of his right
to immediate admission. The voluminous testimony, sur
veys and factual findings submitted to the Florida Supreme
Court by its commissioner presented an overwhelming case
in favor of caution and delay in the issuance of a writ
which would order the petitioner’s admission to the Uni
versity of Florida. All of this testimony and factual ma
terial were properly presented to the Supreme Court of
Florida through its commissioner and are now a part of
the record of this case and available for the information
and guidance of this Court.
The Supreme Court of Florida reached the conclusion
that its “ study of the results of the survey material to the
29
question here, and other material evidence, leads inevitably
to the conclusion that violence in university communities
and a critical disruption of the university system would
occur if Negro students are permitted to enter the state
white universities at this time, including the Law School of
the University of Florida, of which it is an integral part.
This Court has an opportunity to prevent the incidents of
violence which are, even now, occurring in various parts of
this country as a result of the states’ efforts to enforce the
Supreme Court’s decision in the Brown case.”
The allusion to general conditions prevailing throughout
the country and the realities of the situation are recognized
in a book which has come to be considered authoritative
on racial matters. This book, “ An American Dilemma,”
by Gfunnar Myrdal, page 58, makes the following statement:
‘ ‘ This attitude of refusing to consider amalgamation—
felt and expressed in the entire country—constitutes
the center in the complex of attitudes which can be
described as the ‘common denominator’ in the prob
lem. It defines the Negro group in contradistinction to
all the non-colored minority groups in America and all
other lower class groups. The boundary between Negro
and white is not simply a class line which can be suc
cessfully crossed by education, integration into the na
tional culture, and individual economic advancement.
The boundary is fixed. It is not a temporary expedi
ency during an apprenticeship in the national culture.
It is a bar erected with the intention of permanency.
It is directed against the whole group.” (Emphasis
supplied)
And
“Almost unanimously white Americans have communi
cated to the author the following logic of the case
situation which we shall call the ‘white man’s theory
of color caste.’ (Emphasis supplied)
30
“ (1) The concern for ‘race purity’ is basic in the
whole issue; the primary and essential command
is to prevent amalgamation; the whites are de
termined to utilize every means to this end.
“ (2) Rejection of ‘social equality’ is to be understood
as a precaution to hinder miscegenation and par
ticularly intermarriage.
“ (3) The danger of miscegenation is so tremendous
that the segregation and discrimination inherent
in the refusal of ‘social equality’ must be ex
tended to nearly all spheres of life. There must
be segregation and discrimination in recreation,
in religious service, in education, before the law,
in politics, in housing, in stores and in bread
winning. ’ ’
Myrdal throughout his book clearly evidences a genuine
concern for the plight of the Negro in America but we feel
that the tenor of his book is in sharp contradiction to the
reasoning and arguments of the petitioner in this case who
insists that his right to enter the University of Florida is
personal and present, should be granted immediately, and
no other factors should be considered. In this connection
we agree with Myrdal’s statement on page 61 of his book
cited above:
“ Negroes are in desperate need of jobs and bread, even
more so than of justice in the courts, and of the vote.
These latter needs are, in their turn, more urgent even
than better schools and playgrounds, or, rather they
are primary means of reaching equality in the use of
community facilities. Such facilities are, in turn, more
important than civil courtesies. The marriage matter,
finally, is of rather distant and doubtful interest. ’ ’
The truth of Myrdal’s assertion as to the almost total
opposition of white citizens to an enforced integration of
schools at any level is confirmed by an abundance of reliable
31
evidence dealing specifically with Florida which will be
dealt with subsequently in this brief.
Voicing this opposition as an official expression of the
feelings of the white people of Florida, the Florida Legis
lature adopted a resolution of interposition in its 1957 ses
sion. Said resolution has been made a part of and is at
tached to this brief as Appendix B.
This resolution which is not without historical precedent,
we construe to be the strongest possible form of protest
which can be legally filed by the people of a sovereign state
in opposition to an action of any branch of the Federal
government which the people consider to be inherently
wrong. We do not view this resolution as being an unlawful
defiance of the authority of this Court but we do respect
fully submit that it is an official, sincere expression of the
feelings of a free people which should be given due con
sideration by this Court in determining the wisdom and
authority of the action of the Supreme Court of Florida
in delaying the issuance of its writ of mandamus which
would compel petitioner’s immediate admission to the Uni
versity of Florida.
Further concern because of racial problems in Florida
is reflected in a report of an Investigative Committee of
the Florida Legislature. This report which, was submitted
to the Florida Legislature on May 31, 1957, is made a part
of and attached to this brief as Appendix C.
The report contains the following statement relating to
the bona tides of this case.
“ In the opinion of counsel, the record discloses that
certain attorneys for the NAACP have engaged in un
ethical conduct in violation of the canons of ethics
governing the practice of law in Florida. I t likewise
discloses the very strong possibility that some of the
32
witnesses before this committee committed perjury.
Therefore, it is recommended that a copy of the perti
nent testimony be made available to the proper officials
of the Florida Bar and the state attorneys having
jurisdiction where the hearings were held, with the
request that the same be carefully studied and if viola
tions of law or ethics have occurred that proper pro
ceedings be instituted against any such offender.
“ The Florida State Teachers Association has con
cerned itself with integration law suits. It, together
with the NAACP, has been one of the prime movers in
instigating the filing of the Virgil Hawkins case, to
which the Florida State Teachers Association has been
one of the principal financial contributors. The record
shows that Virgil Hawkins and the other plaintiffs
involved in this case had virtually no control over the
course of this litigation and absolutely no financial
responsibility for the same, the case having been han
dled and controlled entirely by persons and organiza
tions other than the individual plaintiffs.
“ A much more damaging report as to the NAACP’s
activities would undoubtedly be dictated by the record
except for the fact that all records of NAACP have
been secretly removed from the jurisdiction of this
state for the express purpose of preventing this com
mittee from examining the same.”
Overtones of racial unrest, violence and the sincere op
position of law-abiding citizens throughout the country to
the immediate implementation of this Court’s decision in
the Brown case are apparent on every hand and must be
considered in the realm of general knowledge worthy of the
consideration of this Court.
An article in the June 15, 1957, issue of the Saturday
Evening Post written by John Bartlow Martin entitled
“ The Deep South Says Never” appears to be a factual
report of the general attitude toward integration of the
races throughout the South. In this article Mr. Martin says,
33
“ Segregation is not a principle upheld by louts and bullies.
It is viewed as inherently right by virtually every white
person in the four-state South of which we speak.”
Although Mr. Martin’s study did not include Florida
specifically, we know his findings are to a large extent
equally applicable in this state.
Florida’s specific condition in this regard is the subject
of an exhaustive and objective study of sociological, physi
cal and psychological conditions relevant to the University
of Florida and Florida’s system of higher education made
by the State Board of Control. This study which was the
basis of the order of the Supreme Court of Florida which
petitioner seeks to circumvent is too bulky to include in its
entirety in this brief.
We feel, however, that it is important to bring to the
attention of this Court certain portions of said study so
that it may be properly advised as to the difficulties at hand
without having to refer to the record which is voluminous.
This can best be accomplished through statements of wit
nesses at the hearing which summarizes the findings of the
study and their own conclusions.
The sworn testimony of the Honorable Fred H. Kent
(who was chairman of the State Board of Control at the
time of the hearing before the Commissioner appointed
by the Supreme Court of Florida) includes the following
statement:
“ A. The Board of Control, and all of its members, definitely
are of the opinion that we are confronted with a major
problem posed by the decision of the Supreme Court
decreeing what—or rather, I might say, decreeing that
a Negro is entitled to be admitted to the University of
Florida and the Florida State University. Our major
problem at the present time has been to determine
34
what the effect of admitting such a Negro to either of
those institutions would be. We have been trying to
study that problem for the purpose of presenting the
various aspects of it to the Supreme Court of Florida
in this particular proceeding. We haven’t reached that
phase at which we would try and solve the problems,
because we don’t know yet exactly what we are going
to be confronted with, what the Court is going to de
cide. Our study data being limited to what problems
will have to be decided and not what the solution of
them will be.
I might say that I have been on the Board of Control
for three years, Chairman of it for approximately a
year, and that has been unquestionably the biggest
problem that has confronted us during that time.
Q. Could you make a statement to the Court pointing out
what, in your opinion, are the most serious problems
of administration which will be created if Negroes are
admitted to the white universities ?
A. Yes, but before I do, I would like to qualify myself to
the extent of showing that my thinking is controlled
by concern for the welfare of the University of Florida,
Florida State University, and Florida A. & M. Uni
versity, and not by prejudice against members of the
Negro race or because I am trying to avoid having my
children attend the University of Florida as an inte
grated school. I have four children, one girl, and three
boys. My two oldest boys I have sent to the Philips
Exter Academy at Exter, New Hampshire, which is a
preparatory school and does not enforce segregation.
My second son is in his third year there. My oldest
son graduated at Exter and then went to Yale, which
does not enforce segregation, and graduated from that
University. My daughter went to Bryn Mawr College,
Bryn Mawr, Pennsylvania, which does not enforce seg
regation. Therefore, I believe that those facts indicate
that my thinking is not controlled by prejudice towards
integration, but is controlled by what might happen at
the University of Florida if we enforce integration
under existing facts—existing circumstances. I am
35
sure that an examination of every one of the members
of the Board of Control would demonstrate that not
any one of them is any more prejudiced than I am.
At the beginning of my statement I want to say that
copies of these two volumes entitled “ Study on De
segregation, Part I and Part I I ” have been furnished
to me and all members of the Board of Control. I
have studied both volumes carefully and am prepared,
I believe, to stand a rather thorough examination or
cross-examination on them; that is, as to their general
substance and as to the conclusions to be derived from
them. I would not be able to remember the exact figures
appearing in them, because there are too many. I have
studied the summaries which are set forth in the first
33 pages of Vol. I and the first 11 pages of Vol. II, and
wish to state under oath that I believe that they are
correctly and reasonably arrived at and that I concur
in the conclusions and statements of opinions therein
expressed.
I have been authorized by every member of the
Board of Control to make that statement on his behalf.
I further have been directed to state that it is the unani
mous opinion of the Board of Control that the adminis
trative problems summarized on pages 31 and 32, of
Part I of that survey, are very real problems which
our Board fears may create unsolvable problems and
which may result in great injury to the University of
Florida if we are forced to meet them forthwith. Those
problems are so well explained by the summaries and
conclusions set forth in those two volumes which have
been placed in evidence and are, in fact, so self-explan
atory that I will not expand on them, except as they
relate to other thoughts which I will express.
I further want to say that I have listened to Dr.
Culpepper’s explanations of and comments on those
exhibits and Mr. Skelton’s explanations of and com
ments thereon, and I am completely in accord with all
of the statements made by both of them. I do want to
testify under oath further that as Chairman of the
Board of Control that I consider each of the problems
36
listed on pages 31 and 32 as a very real problem and
one which is potentially of great danger to the welfare
of the University of Florida.
I would like to testify to certain other problems
which we on the Board of Control fear most and which
are only indirectly pointed to by the printed surveys
filed in evidence today; yet, they are demonstrated by
that survey to be very real. We on the Board are con
cerned particularly by three additional major prob
lems. First, the safety of the students in our State
supported institutions, and 1 refer to their physical
and moral safety. Second, the financial welfare of our
institutions. And, third, the academic standing or
standard of those universities.
Dealing with the first, I should like to refer to the
safety of the students at our State owned institutions.
The recent incident at the University of Alabama has
shown what can happen where only one Negro enters
a college such as the University of Florida. Those
surveys filed here today show: one, that the parents
of Negro high school seniors, if given the opportunity
to do so, next year would send 369 Negro children to
the University of Florida and 205 to Florida State
University; second, that of the Negro students now at
Florida A. & M. approximately 250 would transfer to
F. S. U. and 310 to the University of Florida if per
mitted to do so. That means that we could anticipate
an influx of from 450 to 500 Negroes at Florida State
University and from 675 to 700 Negroes at the Univer
sity of Florida. We fear that the influx of so many
Negroes would multiply the chance of disorder, fights,
riots, and attendant trouble.
This morning’s paper describes an incident at Del
ray Beach which shows that the same thing which hap
pened at the University of Alabama can happen in
Florida. It points out that last week the municipal
authorities in Delray provided that the Negroes could
use the beaches at Delray along with the white people.
On yesterday the Police Department at Delray Beach
is reported as having had to disperse a riot or dis-
37
turbance caused by white teen age children who tried
to make the Negroes leave the beach. So if teen-agers
do that at Delray Beach it appears to be reasonable
to expect that they might do the same thing at the
University of Florida. Further, the surveys filed here
show that a substantial number of students and a sub
stantial number of parents of students state that they
expect to take action, which apparently is positive ac
tion, to persuade Negro students to leave the Univer
sity or make it so unpleasant for them that they will
move out of a dormitory room or out of a class or out of
a cafeteria or otherwise stop using the facilities of the
University of Florida. The only assumption that we
can reach is that by making it so unpleasant for them
that they would have to move they mean to resort to
violence or some equally irritating action which would
undoubtedly result in disorder.
Next, we cannot overlook another unpleasant danger.
On March 27, 1956, Congressman Williams of Missis
sippi filed in the Congressional Record for 1956, Vol.
102, No. 54, at page 5092 certain statistics compiled
from the official records of the United States Depart
ment of Justice and the District of Columbia Police
Department and the Department of Public Health,
which demonstrates conclusively that integration of
the races poses a real problem of public safety, public
health, and danger to public morals of our State stu
dents. I believe that the Court will take judicial notice
of the contents of the Congressional Record, so I don’t
offer it in evidence; but I do respectfully ask that it be
studied.
If I may, I would like to illustrate the difference in
morals between the students in the white and colored
institutions by giving an example of an occurrence that
is unpleasant but I think it should be considered here.
We don’t have here a record of the total number of
cases in which this has happened, but I feel that they
are certain facts which illustrate the different moral
standards of the two races which are known to mem
bers of the Board because they come before us for
38
consideration. We have had a few isolated instances
at both of the white institutions in which unmarried
girls have left school either voluntarily or have been
asked to leave because they became pregnant.
Let me emphasize that with a total enrollment of
approximately 15,000 the two white universities have
had only isolated occurrences of that sort. Contrasted
with the situation at the white colleges we have had a
very substantial number of young, unmarried Negro
women who have left school for that reason at Florida
A. & M. University, which is much smaller, having an
enrollment of only about 2600.
Regarding the plaintiff Hawkins, we have had affi
davits furnished to our Board which indicate that
Hawkins is the possessor of a violent and apparently
ungovernable temper, as was indicated by instance in
which he is alleged to have inflicted severe physical
punishment on a student under his tutelage. We believe
that such a man if admitted to Florida University
under existing conditions would be apt to create
trouble.
Concerning the second point which I raised, that is,
the financial welfare of our Universities, we have sev
eral reasons for fear. First, the surveys filed in evi
dence today demonstrate that we could expect that,
first, 41% of the parents of students now in our white
universities would cause them to drop out of those
schools or transfer to another school; and that 62% of
the white 1956 high school graduates would send their
children elsewhere than to the University of Florida
or Florida State University if we have enforced inte
gration. That prospective loss of revenue speaks for
itself.
Second, there are other prospective losses of reve
nue. For instance, we receive six million dollars, or
about 25% annually, of our operating revenue at the
University of Florida from grants made to that insti
tution for the performance of work for which it is
exceptionally well equipped. Those grants come be
cause we have exceptional students and exceptional
professors. If we lose the indicated number of stu-
39
dents, plus the 7% of professors who say that they
will leave, and if our revenue is reduced so substan
tially that we won’t be able to pay prices for salaries
so as to keep our present most highly paid professors,
we might very well lose a big percentage of that per
sonnel and of those grants.
Third, we have built at the University of Florida
several dormitories, which are being paid for from
revenue certificates. We are about to build others that
will cost three million dollars. If Negroes move into
them it seems clear from our surveys that the whites
intend to move out. It appears that those who say they
won’t move probably will be subjected to such ridicule
and teasing that they, too, will move ultimately. The
history of Negroes moving into white living areas
demonstrates that that action is to be expected, for
experience shows that when a Negro moves into an
area the property values fall and the whites move out.
If that happens to our dormitories we will face ruin
financially. That is the only way we have found to
finance the building of them. If we default on the ones
that we have built, we will not be able to finance any
more.
Next, this Court and the Supreme Court of Florida
know—in fact, it is a matter of general public knowl
edge—that the State supported universities in the
South have had a desperately hard time surviving
financially up until the past ten years. That has been
true in Florida. Legislators, generally, simply have
been disinclined to appropriate funds for higher edu
cation. During the past decade, and possibly the past
two decades, the tide has turned and has begun to flow
slowly in the opposite direction. We now appear to be
on the threshhold of real progress in building more
and better colleges and being able to provide better
salaries for our heretofore underpaid professors and
administrative personnel. With enforced racial inte
gration the tide will, I am afraid, turn the other way
once more—and with a vengeance.
Indicative of the thinking of the politicians of this
State is our very recent primary in which we nom-
40
mated a candidate for Governor. Almost the only issue
in that campaign was the maintenance of segregation.
Each candidate tried to outdo the other in insisting
that he could and would best maintain segregation.
Each pledged himself to maintain it. That shows two
things: one, each realized how intensely the white peo
ple want to maintain segregation; and, two, each
agreed to try to do his best to do so. Assuming that
those persons elected to the legislature feel the _same
way, it seems rather evident that the legislature is not
going to appropriate much money for integrated uni
versities.
We have had a hard time before. We will really be
in trouble if we have integration in our universities,
for then those who have fought us in the past will have
reenforcement on their side so great that we fear that
we won’t be able to overcome it. I am afraid that we
will be given only niggardly financial support; that
we will lose our top instructors because we won’t be
able to pay what they must earn in order to stay here;
and that our universities will face dry rot and ruin.
This should be considered along with that problem. In
the past our alumni have been our greatest help in
getting funds from the legislature.
The survey filed today indicates that we will lose
the support of 52% of those alumni if we have inte
gration. Without them we will be impotent when we
appear before the legislature asking for funds.
The third point which I have suggested that we are
particularly concerned with is the academic standing
or standards in the University of Florida in the event
of enforced integration. I call your attention again to
Table 4, on page 29 of Vol I, filed with you today, but
I am not going to testify at length regarding it because
Dr. Culpepper has already covered that point so ably.
I do want to point out, however, that it shows by indis
putable statistics how poorly prepared and how ill
qualified the Negro high school graduates are when
compared with the white high school graduates. For
the past several years we have set a standard of ad
missions at the University of Florida based on the
41
admission of only those students in the top 75% of
their classes. That was not by rule of the Board of
Control, but was handled on an advisory basis by ad
ministrative officers at the University. This past year
the Board of Control, for the first time, recognized the
need for such a restriction and at both the University
of Florida and Florida State University approved en
trance requirements which limited attendance, except
in exceptional cases, to high school graduates who
would be in the top 60% of their class.
Negroes are admitted at Florida A. & M. University
if they have a high school diploma. If they had to
comply with the present entrance requirements at the
University of Florida only about eight percent of the
Negro high school graduates could meet those require
ments. It might be said that such entrance require
ments, therefore, would protect the University of Flor
ida and Florida State University from having a decline
in their academic standards because of an influx of
poorly prepared Negroes; and it should.
But the question then arises, “ What will be done
about Florida A. & M. University?” First, will the
State of Florida continue to run a university for Ne
groes who cannot pass entrance exams at the Univer
sity of Florida and Florida State University, but pro
vide no school for whites who cannot pass such an
exam. That would be a clearcut case of discrimination
in favor of Negro students and against white students.
Second, will we have two firstclass universities and
one admittedly sub-standard one. What value will a
degree from such a sub-standard university be? For
how long could we get instructors and students to at
tend such an admittedly sub-standard university?
Our Board, after considering those questions, con
cluded that if any one of the three universities is forced
to have racial integration that we immediately would
put all three of them on the same basis as to admis
sions. Either all three will have the same high admis
sion standards and consequent high academic stand
ards, or all three will have no admission requirements
and a correspondingly low academic standard. We
42
have left it up to the State Board of Education to
approve or disapprove of our action. If it approves it,
we then would set admission standards. I believe that
they will be set on the same level at all state univer
sities and that they will be set at about the level now
maintained at the University of Florida.
That would be very bad for the prospective Negro
student and would probably result in Florida A. & M.
University either going out of existence entirely or
becoming a college in which about 90% of the students
would be white. Integration unquestionably would re
sult in the abandonment of substantially all of the
graduate work now being offered at Florida A. & M.
University because it would be an unnecessary dupli
cation of the same courses offered at the University of
Florida or at Florida State University.
There are a few other points I would like to make.
The first is this. The United States is being outstripped
today in its race to educate and develop scientists,
engineers, doctors, etc., by the Soviet—for two reasons:
first, the Soviet not only subsidizes their bright young
students, they make them go to college. We, in this
country, don’t subsidize ours. We don’t even allow the
child’s parents an income tax deduction for educating
his children; and we certainly don’t make them go to
college. Consequently, we find that we are losing a sur
prisingly large percentage of our most brilliant high
school graduates, who simply don’t go to college at all.
We even now are looking for ways and means to get
him in college.
I discussed that problem with Dr. Allen, Vice-Presi
dent of the University of Florida, only last week. I
find that we are trying to make college attractive. We
are trying to make them—that is, those high school
graduates and their parents realize that a college edu
cation is a must. If instead of having a State Univer
sity which is a glamorous and attractive place we have
one that bears a stigma, such as is indicated it will bear
in the minds of so many parents of high school grad
uates by these statistics filed today, we will lose more
and more of these fine students—with a consequent loss
to our Country.
43
Secondly, I want to emphasize the very important
part that our Agricultural and Engineering Schools at
the University of Florida have played in economic de
velopment of Florida. Our farmers, cattlemen, citrus
growers, businessmen all recognize that fact. The loss
of such a great asset, or even the severe crippling of it,
as might be occasioned by integration as indicated by
these surveys, would be a blow which would create
irreparable harm to the economy of our State.
Third, I don’t know how important it is, but if Ne
groes are admitted to the University of Florida I
assume that they will be eligible to participate in inter
collegiate athletics. Florida is a member of the South
eastern Conference. Many of the colleges which are
members of that group prohibit games with colleges
which permit Negroes to play on their team. Consid
erable confusion and monetary loss, therefore, would
be occasioned from that source.
Briefly, our Board’s position, as I understand it,
is this: the Supreme Court of the United States in the
case of Hawkins v. The Board of Control, found that
“ a Negro has a right under the Constitution of the
United States to attend a graduate school of the Uni
versity of Florida.” The gist of that decision is that
that right cannot be denied him solely because of his
being a member of the Negro race. That, however, does
not mean that he must be allowed to attend that Uni
versity.
The Supreme Court of Florida, in the case of Thorn
hill v. Kirkman, 62 So. 2d 740, held that “ liberties
guaranteed by the Bill of Rights are not absolute, but
must be regulated in the public interest.”
The Supreme Court of the United States has recog
nized and approved a decision of the Supreme Court
of Florida which held that “ all personal and property
rights are held subject to the police power of that
State, and that neither provision of the State nor the
Federal Constitution will intercept regular and lawful
exercise of such power. ’ ’ That was in the case of Mayo
v. Polk County, 169 So. 41, affirmed by the Supreme
Court of the United States, 81 Law Ed. 376. In it the
44
Supreme Court of Florida said, “ All personal and
property rights are held subject to the police power of
the State, and neither the Fourteenth Amendment nor
corresponding provisions of the State Constitution will
intercept the regular and lawful exercise of this
power.”
The Supreme Court of the United States indicated
its approval of the decision in another case which arose
in Florida, but this time in the District Court of the
United States for the Northern District of Florida,
and affirmed by the Fifth Circuit Court of Appeals, in
which the Court described the broad police power
vested in a State. That is the case of United Enter
prises v. Dubey, 128 Fed. 2d 843, 87 Law Ed. 537. In
that case the Court said that “ a State, by legislature
under its police power, may provide for the protection
of the public health, the public morals, and the public
safety, unless Congress has preempted the particular
field in question, or unless the State transcends its le
gitimate authority and undertakes the regulation of
Interstate Commerce by imposing burdens upon it.”
The States of the Union have never relinquished
their sovereign power so as to protect their citizens by
appropriate legislation. It appears to me, therefore,
that it would neither be unreasonably arbitrary or
capricious for the State, represented by our Board, in
the exercise of its police power, to forbid racial inte
gration in the University of Florida or the other insti
tutions under our control, in view of the evident threat
to the public safety, to the public morals, and to the
public health. And the Board of Control expects to
continue to follow that policy until directed to do other
wise by the Supreme Court of Florida. ’ ’
At the same hearing, Dr. J. B. Culpepper, Executive
Secretary for the State Board of Control, who had the
responsibility for making the survey on the subject of
desegregation at the University of Florida which is a part
of this record, testified:
“ Q. Please state your name.
45
A. My name is J. B. Culpepper. I am serving presently
as Executive Secretary for the State Board of Control
of Institutions of Higher Learning.
Q. In that capacity, Dr. Culpepper, have you had the re
sponsibility for making a survey or study on the subject
of desegregation at the University of Florida?
A. Yes, I have, and we have applied it not only to the
University of Florida but also to the Florida State
University and to the Florida A. & M. University.
Q. Will you amplify as to your reasons for including the
other two State Universities in this study!
A. The reason that we have included all of the State Insti
tutions under the direction of the Board of Control is
that we wanted to make a study which was approached
objectively and which would reveal to the Board
clearly and conclusively precisely what problems, if
any, would be encountered in moving toward desegre
gation. We felt that the study ought to be as broad a
study as was necessary to bring together those con
clusions which would be helpful to the Board and to
the Court. Consequently, in making plans it seemed
to us wise to make the following studies. We did a
study of the facilities of the three institutions with
regard to housing, with regard to class rooms, the
health services, the library facilities, food services, and
recreation. We felt that we ought to take a look at the
present admission policy with regard, particularly, to
the impact of the policy upon the growth of the Insti
tutions and what would be the effect in relation to pos
sible additional students that would come because of
desegregation. We felt that we ought to project the
anticipated enrollments through to 1960, thereby get
ting some idea as to what problems we would encounter
with an ever increasing enrollment. We felt that we
ought to survey the students of the Universities, the
faculties of the Universities, the parents of the Uni
versities, and the alumni of the Universities to find
out what their attitudes are toward desegregation. In
order to project the study to the future and to get as
much additional information as possible to show prob
lems that might be involved, we also surveyed parents
46
of high school seniors, both Negro and white, through
out the State. Those are the studies that were made
and we attempted to get at them as fairly and as forth
rightly and as honestly as we knew how so that infor
mation would be available to all concerned.
Q. Dr. Culpepper, the immediate question before the
Court has to do with the admission of one colored man
named Hawkins, who is seeking admission to the Col
lege of Law at the University of Florida. Could an
objective study and an accurate study be made of just
the University of Florida College of Law without tak
ing into consideration the other Colleges at the Uni
versity of Florida and of the other two State Univer
sities ?
A. We think that you would have to study all of the insti
tutions and all of the schools within the institutions,
because we feel that it is a broad problem and pre
sumably if admission is allowed to the College of Law
under the rulings that would be made, it follows that
they would be eligible, presumably, under the same
circumstances for admission to other parts of the insti
tution and to the other institutions. Therefore, we
made our study comprehensive in taking that position.
Q. Do you consider that the three State Universities are
so inter-related from administrative standpoint that
what affects one would necessarily affect the others?
A. Yes, I do. I can give an illustration that might be
pertinent at this point. When we made the study of
the parents of high school seniors we sent out to the
Negro parents 4,464 questionnaires. In other words,
there were that many Negro parents involved. We
received from those Negro parents of high school sen
iors 1295 replies; and of these 1295, 1115 indicated
that they would send their children to one of the three
State Universities. Now we feel that the percentages
being what they are, that we got very nearly every
Negro parent who planned to have his or her child
attend a State University. Now, here is the interesting
thing about that set of returns. Of these 1115 returns—
The Court: Was that to the exclusion of Florida
A. & M.?
47
A. No, the data I ’m about to give will relate to A. & M.,
F. S. U., and the University of Florida. These Negro
parents, now—
The Court: You will permit me to ask this ques
tion: you say 1115 said they would send their
children to “ a State University.”
A. “ A State University.”
The Court: Embracing A. & M., F. S. U., and the
University of Florida?
A. That is right.
The Court: But they didn’t attempt to say whether
they would send them to F. S. U. or University of
Florida, or—•
A. Well, that is what I ’m coming to, Judge Murphee. Of
that total number 581 said they would send their chil
dren to Florida A. & M.—that is, of the 1115. 205 said
they would send their children to the Florida State
University, and 369 said they would send their children
to the University of Florida. So, roughly half of them,
of the total 1155, said they would send their children
to either F. S. U. or the University of Florida. Now
to return to the point. The point that I want to make
is that if this is allowed, then you can see, Mr. Odom,
that the problem not only is one with relation to Law,
but it also is one with relation to any other part of
either of the two white institutions.
Q. Would these figures indicate a shift in enrollment from
A. & M. to the white universities?
A. I think that the answer is “ yes.” Now there is related
to it another problem, and that is that in the projection
of enrollment, which is shown in the study, we have a
tremendous number of students who are desirous of
attending each of the institutions and if all these stu
dents come—and they will, because we have projected
it on a pretty solid base—we will have more students
in each of the institutions than we have facilities to
take care of them.
Q. I understand, then, that your survey has indicated that
all three of the State Universities are already over-
48
taxed as to facilities to take care of the present enroll
ment under the present dual system of education. Is
that correct?
A. That is correct. The study of this is shown on page 33
of the Study. It shows under projection of enrollment
that beginning in the school year of 1959-1960—and
this is a very conservative projection—there will be
8,448 students at the Florida State University, as com
pared with 6400 at the beginning of this current aca
demic year just ending. There will be 14,784 students
at the University of Florida, as compared with 10,868
at the beginning of this year. There will be 3,658 stu
dents at Florida A. & M., as compared with 2,649 at
the present time. Now our studies of facilities and
housing, which Mr. Skelton may elaborate upon a little
later, will show you that we presently do not have
adequate facilities for the present enrollment; so, un
questionably, we are confronted with rather serious
problems.
Q. Dr. Culpepper, would a shift on the part of Negro
students from Florida A. & M. to the two State white
universities further complicate the administrative
problems which you now have which are caused by this
over-crowded situation?
A. Yes, we think so. We attempted to summarize the vari
ous administrative problems which may be encountered
by the white universities in the event of desegregation.
If you like, I would be glad to run through those, or
we can hold it until later when Mr. Skelton, who was
the director for the study, may bring it in.
Q, I would like for you to comment in more detail on your
observation which I believe you made that a study was
made in distinction of achievement levels between the
two races.
A. Yes, we have done that. The summary of the com
parisons of percentile ranks for white and Negro exam
inees in the Florida state-vride twelfth grade testing
program is given on page 29 of the Study. This is a
very interesting study and comparison and bears the
careful est examination by those who have authority
49
with regard to admission of students to institutions.
We took the test results from 105,000 white high school
seniors over a period of years and we took the results
from 16,743 Negro high school students, and we ran
the white percentile rank as the students fall in relation
to how they scored on this high school test. It is a test
which is a psychological test to get at general ability.
We test the knowledge and ability of the individual
to perform with regard to English, with regard to
Social Studies, with regard to Natural Science, and
with regard to Mathematics. What we did was to take
the scores of the Negroes and compare those with the
scores of the white, and we found—and I won’t go
into all the detail of it—that 92.4% of the Negro stu
dents who were tested—and this is a very representa
tive group—92.4% of the Negroes tested fell below the
40 percentile of the white students tested, and this,
usually, we find is the cut-off point or the point at which
white students succeed or fail in college work. We
took all of the tests, because that’s the way to get at
it, that were involved and ran an average and the
average shows that on the Psychological test and the
four subject areas 91.14% of the Negroes fall in the
lower 40% of the white students who took the test.
If you applied it at the 50 percentile, then 94.44% of
the Negroes will fall in the lower half on the scores
that whites made. Now what that indicates on the
basis of experience is that some better than 90% of
the Negroes would be in difficulty academically when
they come to the white institutions under present stand
ards. If it operated any other way, then, obviously,
there would have to be a lowering of standards in terms
of instruction and grade procedure in the white insti
tutions. And we must not let that happen, because we
have to maintain our academic standards in the insti
tutions.
Q. Under the present system operating in the institutions
of higher learning Negroes do not have to compete
against white students. Is that correct!
A. That is right.
Q. And your study there on these tests indicate that some
50
90% could not compete. Is that a fair conclusion!
A. That appears to be the circumstances on the basis of
that study. Of course, we are very interested in our
program of higher education and in the public schools,
for that matter, to assist the Negroes as rapidly as
possible to improve their level in knowledge and under
standing in the subject areas and in general ability;
but that is a time procedure.
Q. Dr. Culpepper, if the University systems were inte
grated and the Florida A. & M. University admission
standards were identical with those of the white uni
versities, would you care to comment upon the reason
ably anticipated effect that that would have on Florida
A. & M.!
A. Well, in my judgment it would be disastrous; that is,
to the Negro students who presently are attending or
who would desire to attend. If the same admission re
quirements were applied with some 4500 Negro seniors
in the State today and if only 10% of them could go
above and would go above, as shown by test results,
the 40 percentile which might well be the cut-off point,
then 450 Negroes of the total number of high school
seniors would be eligible under the admission policy
to go to college. If you took, say, half of those—the
other half not being able to go or not desiring to go
for some reason or other—that would be 225, and if
you took half of those who might go to the State Insti
tution, then you would come out somewhere in the
neighborhood of about 100 young people who would
be eligible for admission to the Florida A. & M. Uni
versity. Now with ordinary attrition and drop-out, if
you projected that over a period of four years, be
ginning with roughly a 100 students in the Freshman
year, you could see that in a period of four years the
present institution of some 2600 students would have
fallen to less than 400 students. * * *
Q. Dr. Culpepper, would you like to comment further upon
any administrative problems which have been revealed
by this study which you consider of great importance!
A. Well, we have summarized what we consider to be the
51
chief administrative problems and I assume that Mr.
Skelton will go into those later. However, there are one
or two observations which I should like to make, if I
may.
The over-all tabulation showing the summary of
the white groups with regard to questions concerning
whether or not we should admit Negroes to the insti
tutions immediately, and variations thereof, appears
to me to be quite significant and I think is somewhat
indicative of problems that might emerge. The stu
dents at the Florida State University and at the Uni
versity of Florida indicated these replies. These are
summaries. This is shown on Table 2, page 2, in the
Study. Better than 20%-20.44% of the students said
“ admit immediately.” Of the parents of these students
7.79% said “ admit them immediately.” Of the alumni
12.43% said ‘ ‘ admit them immediately. ’ ’ Of the faculty
37.04% said “ admit them immediately.” Now that
ranges from “ admit them immediately” down through
to “ not admit them under any circumstances.”
The second classification was “ admit them after a
reasonable period of preparation for integration. ’ ’ The
students on that particular classification, 43.21% said
“ admit them after a reasonable period.” So roughly
64% of the students said “ admit them immediately
or after a reasonable period of preparation for integra
tion.” Of the parents 22.45% said “ admit them after
a reasonable period.” And so you have something like
30% of the parents saying “ admit them either now or
within a reasonable period.” The alumni, 31.05% said
“ after a reasonable period,” or roughly 43% of them.
And the faculties, 44.46% said “ admit them after a
reasonable period,” or roughly about 81 or 82%—
about 82% said “ admit them now or after a reasonable
period.
Now look at the variation as between parents on
the one hand, students on the other, and then a third
variation would be the faculty reaction. And as you
interplay those reactions you can get all sorts of com
plexities in terms of reactions. You can go over to
the other side and show that those who say “ delay
admitting them as long as we legally can,” 14% of the
52
students, roughly, said “ delay as long as we can,” and
24%, roughly, of the parents said “ delay as long as
we can.” Twenty-three per cent of the alumni said
“ delay as long as we can.” And about 12]/2% of the
faculty said “ delay as long as we can.” Of the stu
dents, 21%, roughly, said “ don’t admit them under
any circumstances.” So there are roughly 35% of the
students who have very serious doubt about admitting
the Negroes and who want to delay as long as they
legally can or not admit them under any circumstances.
The parents, 44.06% say “ do not admit them under
any circumstances.” So you have some 68%, or a sub
stantial majority of the parents, who are very doubtful
about this process of admission of Negroes to the
institutions.
And the alumni, 31.46% say “ admit them under no
circumstances,” which means that roughly 55% of
them take the same position as that group of parents.
Anri of the faculty 3.66% say “ under no circumstances
admit them,” or roughly 16%. So, if you will look at
that and see that a substantial majority of the parents
are gravely concerned about this and feel they should
not be admitted, a majority of the alumni feel the
same way, a substantial group of students, some 35%,
a little better than a third, feel the same way, it is
reasonable to suppose that out of that complexity of
point of view in this matter of social change you could
expect reactions and repercussions that would be dis
ruptive.
Q. Did you find the same attitudes expressed to a greater
or lesser degree on the part of the parents of high school
seniors who will be coming to the State universities
next year?
A. The attitude of high school seniors or the parents of
high school seniors, 5.32% of them said (this is shown
under Table 4, page 2, Part II of the Study), that they
felt they should be admitted at once. This is in com
parison with 7.79% of the parents whose youngsters
are in college. 16.09% said that they felt that they
should be admitted after a reasonable period of prep
aration, in comparison with 22.45% of the parents
whose children are in college.
53
You see these percentages are running lower in the
high schools. 16.66% said that we should delay as
long as we legally can, in comparison with 24.28% of
the parents of children in college who said we should
delay as long as we legally can. And 60.18% of the
parents of high school seniors said we should not admit
them under any circumstances. So if you add the 60%,
roughly, and the 16.66% you come up with about 77%,
roughly, of the parents of high school seniors who are
very doubtful about this process. Of the parents of
college students that percentage is about 68%. ”
The above excerpts from the testimony given on these
matters and other quoted material are by no means com
prehensive. An examination of the complete record of facts
and testimony considered by the Supreme Court of Florida
in this case is necessary to a full understanding of the mag
nitude of the problem at hand.
We submit that an objective study of these factual
considerations will reveal that the Supreme Court of
Florida was correct in its conclusion that it could not
at this time order the petitioner to be admitted to the
University of Florida without causing public mischief.
SUMMARY FROM THE SURVEY REPORT OF
ADMINISTRATIVE PROBLEMS WHICH MAY BE ENCOUNTERED
1. Provision for housing of Negro students
2. Administration of an increased number of course drops
by students indicating that they would not be in the
same class with a Negro (The magnitude of this prob
lem will depend on the number of Negroes admitted
and the influence of the parents on the students.)
3. Need for additional time and personnel to administer
the program of more rigid entrance requirements
4. Vigilance on the part of administrators and counsellors
to prevent racial incidents which may occur because of
the admission of Negroes.
54
5. Restriction of campus food service facilities to students,
parents, faculty, out of town guests, and residents of
the communities who come as guests of individuals asso
ciated with the universities
6. Inspection of off-campus housing to protect the health
and welfare of all students
7. Replacement of the faculty and staff who would resign
because of integration
8. Arrangement for chaperones for university social events
who would not object to attending such affairs where
Negroes are present
9. Development of understandings on the part of alumni
of the universities to insure continued loyal and enthu
siastic support
10. Adjustments in food service operations to prevent de
ficits resulting from loss of student patrons refusing to
eat where Negroes are permitted
11. Counseling of students to prevent them from engaging
in activities to discourage Negroes from attending
classes (Faculties may have to assume more responsi
bility in maintaining order in classrooms and be ever
alert to possible disturbances on campus.)
12. Provision for care of Negroes in the student health
services
13. Modification of regulations governing swimming class
es and other sports
14. Review of present offerings at the Florida A. & M.
University to eliminate unnecessary and uneconomical
offerings (e.g., Law, Pharmacy, Nursing Education,
Graduate Agriculture.)
55
CONCLUSION
We know that the petitioner in this ease, his legal
counsel and the organization for whose objectives he serves
as a symbol, sincerely and deeply feel that the Brown de
cision was right as a matter of law and that racial integra
tion of public education is desirable.
We know that they feel these things so strongly that
they are either unable or unwilling to accept the fact that
an overwhelming majority of white citizens in Florida who
are equally sincere do not agree but rather are convinced
that a legally coerced association between the races is evil
and that their own constitutional rights in this respect have
been violated by the Brown decision.
The real difficulty is grounded in the fact that the Brown
decision has contradicted the sincere beliefs of a majority
of Florida citizens as to their basic rights and freedom.
They therefore dissent.
It is true that freedom of association or the inherent
right to choose one’s associates is not spelled out in the
Federal constitution. We think the reason for this omission
is obvious. There has never been a question as to this right
in the minds of free men. The right is so apparent that the
necessity for spelling it out would no more occur to a con
stitutional draftsman than the need for writing in a guar
antee of the right to have children.
Although the Federal constitution is silent on this sub
ject, we can understand this Court’s ruling in effect that
the right of freedom of association is so inherent that any
law, state or federal, which abridges this right is contrary
to the basic precepts of our form of government which is
58
designed above all else to preserve the dignity, importance
and freedom of its individual citizens.
Such a ruling theorizes that a law which forbids two
men from talking together, working together or studying
together if they want to do so is clearly repugnant to the
culture, philosophy and law which has slowly evolved
through the centuries in western Europe and culminated
in western civilization as we know it today in this land.
But the Siamese twin of such a law, a court order which
compels association of persons against their wishes, in
schools and colleges and which ignores their intense oppo
sition, is equally repugnant and possibly even more dis
astrous to human dignity.
The foundation of the human right to enjoy the associa
tion of other human beings is the mutual respect and affec
tion of both parties to the contract.
Without this mutuality of feelings in an association com
pelled by law, friendship is dethroned by hatred—respect
erodes into contempt and the individual’s freedom of choice
is usurped by the state. Our American system of education
both in public schools and universities inescapably involves
social intercourse, friendship, free and voluntary associa
tion in every area of school life of persons unencumbered
by cumpulsive antagonisms. It involves both psychological
and philosophical considerations which should be freed of
this element of compulsion either for or against association.
In short, the ruling of this Court which seeks to preserve
the right of individual citizens to choose their friends and
associates in public schools and colleges by striking down
laws which enforce a cleavage between races must not, if we
are to avoid disaster, be turned into a two-edged sword
which seeks to compel an association by law which is un
wanted and strongly resisted by either or both races.
57
This, we think, is the sword which the petitioner is asking
this Court to place in his hands. Hawkins’ legal rights as a
Negro have already been established by this Court but the
Supreme Court of Florida is asked to go a step farther and
direct the petitioner’s immediate admission to the Uni
versity of Florida despite conditions which now prevail in
this state. This we believe is unrealistic and will not result
in a successful implementation of his legal rights.
The factual problem now confronting us is properly one
of administration, not of law. The law cannot alter the
minds or mores of men in a free nation and the dilemma
is concerned with the conflict between the law and mental
attitudes. We know that these conflicts exist and believe
that we have given this Court abundant evidence of a solid
wall of opposition to integration in Florida schools and
colleges which justifies the Supreme Court of Florida in
delaying its writ in the interest of the general peace and
welfare of this state.
We respectfully request that this Court take realistic
notice of the compelling factual reasons which require the
Supreme Court of Florida to withhold its writ of mandamus
in this case at this time and that this Court will continue
to recognize, as it has done in the past, the historic right
of the highest court of an independent sovereign state to
exercise a sound judicial discretion as to the date of the
issuance of its process in order to prevent a serious public
mischief.
For these reasons, we respectfully request this Court to
deny petitioner’s request for a writ of certiorari and a
58
direct order of this Court compelling his admission to the
University of Florida.
R ic h a r d W . E r v in
Attorney General
State of Florida
R a l p h E . O d u m
Assistant Attorney General
State of Florida
J o h n J . B l a ir
Assistant Attorney General
State of Florida
"Wil s o n W . W r ig h t
Special Assistant Attorney General
State of Florida
CERTIFICATE OF SERVICE
I do hereby certify that copies hereof have been sea
sonably furnished by registered mail to Robert L. Carter,
Esq., Thurgood Marshall, Esq., and William L. Taylor,
Esq., 20 West 40th Street, New York City, New York,
Attorneys for Petitioner.
J o h n J . B l a ir
Assistant Attorney General
State of Florida
59
APPENDIX A
SUPREME COURT OF THE UNITED STATES
No. 624.—October Term, 1955.
T h e S t a t e oe F lo r id a , ex rel.
V ir g il D. H a w k in s ,
Petitioner
v .
T h e B oard oe C o n t r o l , et al.
On Petition for Writ
of Certiorari to the
Supreme Court of
Florida.
(March 12, 1956.)
Per Curiam.
The petition for certiorari is denied.
On May 24, 1954, we issued a mandate in this case to
the Supreme Court of Florida. 347 U. S. 971. We directed
that the ease be reconsidered in light of our decision in
the Segregation Cases decided May 17, 1954, Brown v.
Board of Education, 347 U. S. 483. In doing so, we did
not imply that decrees involving graduate study present
the problems of public elementary and secondary schools.
We had theretofore, in three cases, ordered the admission
of Negro applicants to graduate schools without discrimi
nation because of color. Sweatt v. Painter, 339 U. S. 629;
Sipuel v. Board of Regents of the University of Oklahoma,
332 U. S. 631; cf. McLaurin v. Oklahoma State Regents for
Higher Education, 339 U. S. 637. Thus, our second deci
sion in the Brown case, 349 U. S. 294, which implemented
the earlier one, had no application to a case involving a
Negro applying for admission to a state law school. Ac
cordingly, the mandate of May 24, 1954, is recalled and
is vacated. In lieu thereof, the following order is entered:
60
Per Curiam: The petition for writ of certiorari is
granted. The judgment is vacated and the case is remanded
on the authority of the Segregation Cases decided May 17,
1954, Brown v. Board of Education, 347 U. S. 483. As this
case involves the admission of a Negro to a graduate pro
fessional school, there is no reason for delay. He is en
titled to prompt admission under the rules and regulations
applicable to other qualified candidates. Sweatt v. Painter,
339 IT. S. 629; Sipuel v. Board of Regents of the University
of Oklahoma, 332 IT. S. 631; cf. McLaurin v. Oklahoma State
Regents for Higher Education, 339 U. S. 637.
APPENDIX B
HOUSE CONCURRENT RESOLUTION NO. 174
A RESOLUTION to declare the United States Supreme
Court decisions usurping the powers reserved to the
states and relating to education, labor, criminal pro
cedure, treason and subversion to be null, void and of
no effect; to declare that a contest of powers has arisen
between the State of Florida and the Supreme Court
of the United States; to invoke the doctrine of inter
position ; and for other purposes.
Be It Resolved by the House of Representatives of the of
the State of Florida, the Senate Concurring:
That the Legislature of Florida doth hereby unequivo
cally express a firm and determined resolution to maintain
and defend the Constitution of the United States, and the
Constitution of this State against every attempt, whether
foreign or domestic, to undermine and destroy the funda
mental principles, embodied in our basic law, by which the
liberty of the people and the sovereignty of the States,
in their proper spheres, have been long protected and
assured;
61
That the Legislature of Florida doth explicitly and pre-
emptorily declare that it views the powers of the Federal
Government as resulting solely from the compact, to which
the States are parties, as limited by the plain sense and
intention of the instrument creating that compact;
That the Legislature of Florida asserts that the powers
of the Federal Government are valid only to the extent
that these powers have been enumerated in the compact
to which the various States assented originally and to
which the States have assented in subsequent amendments
validly adopted and ratified;
That the very nature of this basic compact, apparent
upon its face, is that the ratifying States, parties thereto,
have agreed voluntarily to surrender certain of their sover
eign rights, but only certain of these sovereign rights, to a
Federal Government thus constituted; and that all powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, have been reserved to the
States respectively, or to the people;
That the State of Florida has at no time surrendered to
the General Government its right to exercise its powers in
the field of labor, criminal procedure, and public education,
and to maintain racially separate public schools and other
public facilities;
That the State of Florida, in ratifying the Fourteenth
Amendment to the Constitution, did not agree, nor did the
other States ratifying the Fourteenth Amendment agree,
that the power to regulate labor, criminal proceedings, pub
lic education, and to operate racially separate public schools
and other facilities was to be prohibited to them thereby;
And as evidence of such understanding as to the inherent
power and authority of the States to regulate public edu
cation and the maintenance of racially separate public
62
schools, the Legislature of Florida notes that the very
Congress that submitted the Fourteenth Amendment for
ratification established separate schools in the District of
Columbia and that in more than one instance the same
State Legislatures that ratified the Fourteenth Amend
ment also provided for systems of racially separate public
schools;
That the Legislature of Florida denies that the Supreme
Court of the United States had the right which it asserted
in the school cases decided by it on May 17, 1954, the labor
union case decided on May 21, 1956, the cases relating to
criminal proceedings decided on April 23, 1956, and Janu
ary 16, 1956, the anti-sedition case decided on April 2,
1956, and the case relating to teacher requirements de
cided on April 9,1956, to enlarge the language and meaning
of the compact by the States in an effort to withdraw from
the States powers reserved to them and as daily exercised
by them for almost a century;
That a question of contested power has arisen; the Su
preme Court of the United States asserts, for its part, that
the States did in fact prohibit unto themselves the power to
regulate labor matters, criminal proceedings and public
education and to maintain racially separate public institu
tions and the State of Florida, for its part, asserts that
it and its sister States have never surrendered such rights;
That these assertions upon the part of the Supreme
Court of the United States, accompanied by threats of co
ercion and compulsion against the sovereign States of this
Union, constitute a deliberate, palpable, and dangerous
attempt by the Court to prohibit to the States certain rights
and powers never surrendered by them;
That the Legislature of Florida asserts that whenever
the General Government attempts to engage in the deliber
ate, palpable and dangerous exercise of powers not granted
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to it, the States who are parties to the compact have the
right, and are in duty bound, to interpose for arresting the
progress of the evil, and for maintaining, within their
respective limits, the authorities, rights and liberties ap
pertaining to them;
That failure on the part of this State thus to assert its
clear rights would be construed as acquiescence in the
surrender thereof; and that such submissive acquiescence
to the seizure of one right would in the end lead to the sur
render of all rights, and inevitably to the consolidation
of the States into one sovereignty, contrary to the sacred
compact by which this Union of States was created;
That the question of contested power asserted in this
resolution is not within the province of the Court to de
termine because the Court itself seeks to usurp the powers
which have been reserved to the States, and, therefore,
under these circumstances, the judgment of all the parties
to the compact must be sought to resolve the question. The
Supreme Court is not a party to the compact, but a creature
of the compact and the question of contested power should
not be settled by the creature seeking to usurp the power,
but by the parties to the compact who are the people of
the respective states in whom ultimate sovereignty finally
reposes;
That the Constitution of the State of Florida provides for
full benefits to all its citizens with reference to educational
facilities and under the Laws of Florida enacted by the
Legislature through the Minimum Foundation Program its
citizens under states’ rights, all are being educated under
the same general law and all teachers are being employed
under identical educational qualifications and all are certi
fied by the State Board of Education alike, which enables
the people, themselves, in Florida to provide an educational
establishment serviceable and satisfactory and in keeping
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with the social structure of the state. The people of Florida
do not consent to changing state precedents and their rights
by having doctrines thrust upon them by naked force alone,
as promulgated in the school cases of May 17, 1954, and
May 31, 1955;
That the doctrines of said decisions and other decisions
denying to the States the right to have laws of their own
dealing with subversion or espionage, and criminal pro
ceedings, and denying the States the right to dismiss indi
viduals from public employment who refuse to answer
questions concerning their connections with communism
by invoking the Fifth Amendment, and denying the States
the right to provide for protective “ right to work” laws,
should not be forced upon the citizens of this State for the
Court was without jurisdiction, power or authority to in
terfere with the sovereign powers of the State in such
spheres of activity.
That the Court in its decisions relating to public educa
tion was without jurisdiction because (1) the jurisdiction
of the Court granted by the Constitution is limited to ju
dicial cases in law and equity, and said cases were not of a
judicial nature and character, nor did they involve contro
versies in law or equity, but, on the contrary, the great
subjects of the controversy are of a legislative character,
and not a judicial character, and are determinable only by
the people themselves speaking through their legislative
bodies; (2) the essential nature and effect of the pro
ceedings relating exclusively to public schools operated by
and under the authority of States, and pursuant to State
laws and regulations, said cases were suits against the
States, and the Supreme Court was without power or au
thority to try said cases, brought by individuals against
States, because the Constitution forbids the Court to enter
tain suits by individuals against a State unless the State
has consented to be sued;
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That if said Court had had jurisdiction and authority to
try and determine said cases, it was powerless to interfere
with the operation of the public schools of States, because
the Constitution of the United States does not confer upon
the General Government any power or authority over such
schools or over the subject of education, jurisdiction over
these matters being reserved to the States, nor did the
States by the Fourteenth Amendment authorize any inter
ference on the part of the Judicial Department or any
other department of the Federal Government with the
operation by the States of such public schools as they
might in their discretion see fit to establish and operate;
That by said cases the Court announces its power to
adjudge State laws unconstitutional upon the basis of the
Court’s opinion of such laws as tested by rules of the in
exact and speculative theories of psychological knowledge,
which power and authority is beyond the jurisdiction of
said Court;
That if the Court is permitted to exercise the power to
judge the nature and effect of a law by supposed principles
of psychological theory, and to hold the statute or Con
stitution of a State unconstitutional because of the opinions
of the Judges as to its suitability, the States will have been
destroyed, and the indestructible Union of Indestructible
States established by the Constitution of the United States
will have ceased to exist, and in its stead the Court will
have created, without jurisdiction or authority from the
people, one central government of total power;
That implementing its decision relating to public edu
cation of May 17, 1954, said Court on May 31, 1955 upon
further consideration of said cases, said: “ All provisions
of Federal, State, or local la w __ must yield” to said
decision of May 17, 1954; said Court thereby presuming
arrogantly to give orders to the State of Florida;
66
That it is clear that said Court has deliberately resolved
to disobey the Constitution of the United States, and to
flout and defy the Supreme Law of the Land;
That the State of Florida, as is also true of the other
sovereign states of the Union, has the right to enact laws
relating to subversion or espionage, criminal proceedings,
dismissing public employees who refuse to answer ques
tions concerning their connections with communism and
“ right to work” protection, and has the right to operate
and maintain a public school system utilizing such educa
tional methods therein as in her judgment are conducive
to the welfare of those to be educated and the people of the
State generally, this being a govermental responsiblity
which the State has assumed lawfully, and her rights in
this respect have not in any wise been delegated to the
Central Government, but, on the contrary, she and the other
States have reserved such matters to themselves by the
terms of the Tenth Amendment. Being possessed of this
lawful right, the State of Florida is possessed of power
to repel every unlawful interference therewith;
That the duty and responsibility of protecting life, prop
erty and the priceless possessions of freedom rests upon
the Government of Florida as to all those within her terri
torial limits. The State alone has this responsibility. La
boring under this high obligation she is possessed of the
means to effectuate it. It is the duty of the State in flagrant
cases such as this to interpose its powers between its people
and the effort of said Court to assert an unlawful dominion
over them; THEREFORE,
Be It Further Resolved by the House of Representatives
of the State of Florida, the Senate Concurring:
Section 1. That said decisions and orders of the Su
preme Court of the United States denying the individual
sovereign states the power to enact laws relating to espio-
67
nage or subversion, criminal proceedings, the dismissal of
public employees for refusal to answer questions concern
ing their connections with communism, “ right to work”
protection, and relating to separation of the races in the
public institutions of a State are null, void and of no force
or effect.
Section 2. That the elected representatives of the peo
ple of Florida do now seriously declare that it is the intent
and duty of all officials, state and local, to observe, honor
ably, legally and constitutionally, all appropriate measures
available to resist these illegal encroachments upon the
sovereign powers of this State.
Section 3. That we urge firm and deliberate efforts to
check these and further encroachments on the part of the
Federal Government, and on the part of said Court through
judicial legislation, upon the reserved powers of all the
States’ powers never surrendered by the remotest impli
cation but expressly reserved and vitally essential to the
separate and independent autonomy of the States in order
that by united efforts the States may be preserved.
Section 4. That a copy of this Resolution be transmitted
by His Excellency The Governor to the Governor and Legis
lature of each of the other States, to the President of the
United States, to each of the Houses of Congress, to Flor
ida’s Representatives and Senators in the Congress, and
to the Supreme Court of the United States for its infor
mation.
Filed in Office Secretary of State May 2,1957.
APPENDIX C
REPORT OF THE FLORIDA LEGISLATIVE
INVESTIGATION COMMITTEE
This report covers the investigations and findings of the
above committee, under authority of Chapter 31498, Acts
of the 1956 Special Session of the Legislature.
The committee staff began functioning October 22, 1956,
gathering documentary and other evidence. The committee
held a series of four public hearings. A total of 69 wit
nesses were heard under oath, and 115 documentary exhi
bits, all properly identified and authenticated by the various
witnesses, were received in evidence. The entire testimony
before the committee has been transcribed and consists
of 2,087 pages of testimony under oath.
The committee’s investigations included a rather large
number of organizations, including the National Associa
tion for the Advancement of Colored People, the Seaboard
White Citizens Council, the Inter Civic Council, Inc., and
the Dade County Property Owners Association. Sworn
testimony was taken on all of the above and a rather large
number of other organizations came to the attention of the
committee, but due to the lack of time and restricted per
sonnel, it was impossible to make anything approaching a
reasonably thorough investigation sufficient to prepare a
hearing on.
NAACP AND NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
The record shows the NAACP to be a corporation, organ
ized under the laws of the State of New York, having four
organizational levels. The top level maintains permanent
offices in New York City and has a board of directors of
approximately 50 people. Directly under this organization
are seven regional offices among which are divided the
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various states and territorial possessions of the United
States. Florida lies within the fifth region, which is com
posed of the states of Alabama, Florida, Georgia, Missis
sippi, North Carolina, South Carolina, and Tennessee. This
region is known as the Southeast Region. Directly under
the regional offices is a state level office called the state
conference of branches. Under the state conference of
branches are the various local branches which consist of
the local membership in the various cities and counties of
the state. All branches are chartered by the national office
in New York.
Prior to 1942, all of the activities of the NAACP were
carried on under one corporate entity. Since that time,
it has been carried on under two separate corporate entities,
the second one being the NAACP Legal Defense and Edu
cational Fund, Inc., organized under the laws of the State
of New York. This corporation is set up in such a manner
that donations to it are deductible on the income tax returns
of the donor. Although these two corporations are separate
legal entities, they act with such perfect concert that there
can be no doubt that the NAACP Legal Defense and Edu
cational Fund, Inc. is in fact the mere alter ego of the
NAACP.
The NAACP has formulated a plan calling for the full,
complete and absolute integration of the races in this
country in every phase of American life by 1963. This
includes the removal of all legal prohibitions against inter
marriage of the races.
The NAACP is directly responsible for securing the de
cisions of the United States Supreme Court holding separate
but equal facilities in education, both elementary and at
the higher levels, to be in violation of the United States
Constitution. Having secured these decisions, the NAACP
has set itself up as a sort of executive arm of the federal
70
courts to execute the integration decrees of federal courts
which, standing alone, are not self-executing under the law.
In order to accomplish its aim of complete integration,
the NAACP has promulgated a very concrete and highly
effective set of plans. A national legal department is main
tained in the New York offices of the Legal Defense and
Educational Fund, Inc. A legal staff is likewise maintained
at the regional, state conference, and branch levels. It is
the primary duty of the various legal staffs to accomplish
the aims of the NAACP by carrying on integration litiga
tion in the cases furnished by the various local branches
of the NAACP.
The national office maintains a very rigid and strict disci
pline over the paid employees of the NAACP and likewise
over the various local and state offices and branches. A
highly effective chain of command and communication has
been maintained throughout all levels of the organization
with the national office. Directives from the national office
are sent periodically to all local branches outlining in detail
the steps to be taken in the various phases of American
life to accomplish the ends of the NAACP. A carefully
planned program of attack, legally, legislatively, and pub
licity-wise, is being executed in the following areas:
1. In public education
2. In public recreation
3. In public transportation
4. In public health
5. In public and private housing
6. In all fields of employment, both private and public
7. In all governmental agencies
At the present time, the main emphasis is being placed
on public school facilities. Directives, sent to all branches
in the south, outline in detail the steps to be taken by the
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local brandies to effectively integrate the public schools
of the south. The steps are as follows:
1. File at once a petition with each school hoard for in
tegration. (Sample petitions are sent with this direc
tive.)
2. Follow up the petitions with periodic inquiries to the
board to determine the results.
3. Begin educational meetings on desegregation with em
phasis on the fact that the matter is in the hands of
the federal courts.
4. Organize the parents of the community and prepare
them, and their children to become plaintiffs in law
suits seeking integration of the schools.
5. Seek support of individuals and community groups,
p a rticu la rly in the w hite community, through
churches, labor organizations, civic organizations, and
personal contacts.
6. “ When announcement is made of plans adopted by
the school board, get the exact text of the school
board’s announcement and notify the state conference
and the national office at once so that you will have
the benefit of their views as to whether the plan is
one to provide for effective desegregation. It is very
important that branches not proceed at this stage
without consultation with the state and national
offices.”
7. If no plans are announced or no steps toward deseg
regation taken, the time for a law suit has arrived.
At this stage, court action is essential because only
in this way does the mandate of the Supreme Court
that a prompt and reasonable compliance become fully
operative upon the school boards in question.
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8. At this stage, the matter will be turned over to the
legal department, and they will proceed with the
matter.
Plaintiffs are solicited and, in some cases, people’s names
are used as plaintiffs without their knowledge. The NAACP
finances the litigation in its entirety, the plaintiff having
no financial responsibility to the case whatsoever. The
financing of these cases is undertaken hv the NAACP with
out regard to the individual plaintiff’s ability to pay. Some
plaintiff’s are people of substantial means, wThich bears out
the testimony of some of the NAACP attorneys that the
NAACP is not a legal aid society to render legal assistance
to the poverty-stricken. Cases are filed where no proper
authorization from the plaintiff is ever executed to the
attorney who actually handles the case.
The association directs that no local branch is to enter
into any sort of compromise agreement with local author
ities for anything short of full integration. In Sarasota, a
perfectly agreeable solution to the majority of the colored
citizens of that city was offered by the county commissioners
for a separate segregated beach. The NAACP would not
agree to the separate beach and stopped the proposed settle
ment which concerned only local citizens of Sarasota.
Pleadings in integration cases are sent to the national
legal department for revision and approval before filing, as
are briefs. The individual plaintiffs are not allowed to
select counsel of their choosing but must accept the NAACP
counsel designated by the local branch. The policy of the
national office requires that the NAACP have absolute con
trol over all law suits in which the NAACP participates.
This effectively shuts off the possibility of compromise on
a local level.
In fine, the NAACP is engaged in a gigantic law practice
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with the NAACP running up and financing eases and the
legal department operating under the NAACP Legal De
fense and Educational Fund prosecuting the same. An
audit of the NAACP Legal Defense and Educational Fund,
Inc. from its inception in 1942 through 1955 discloses that
the association made a pecuniary profit on the litigation
undertaken by it in every year except the first, when it took
a small loss of approximately $1,100.00. At the end of 1955,
the audit reveals an ending surplus of $126,689.22.
The funds for supporting these cases are secured from
the membership and from soliciting the public at large and
other organizations.
Although the NAACP has done business in Florida for
many years, the charter of the national association was
never placed on record with the Secretary of State, as
required by law, until after the enactment of the authority
under which this committee was created. No permit has
ever been received by any branch of the NAACP or any
other part of the NAACP to solicit funds in Florida, al
though such solicitations have been made for a long number
of years.
The record shows five petitions for desegregation of
public schools have been filed in Florida pursuant to the
directive of the national office of the NAACP above set
out. The Dade County petition has been followed up by
the filing of a law suit in the Federal District Court by the
NAACP on behalf of five plaintiffs. The record shows that
all five of said plaintiffs executed the same contract with
the NAACP attorney handling the case. Under the terms
of that agreement, the plaintiffs are not liable for any costs
or attorneys’ fees. The attorney bears no responsibility to
the five individual plaintiffs. The plaintiffs have absolutely
no control over their causes. They cannot even stop their
law suit or discharge their attorney. The agreement stipu-
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lates that the Miami branch of the NAACP has all those
rights and that the attorney can be replaced only by the
branch and is responsible to it alone.
The great bulk of the NAACP’s activities, above de
scribed, are in the opinion of counsel contrary to the spirit
and letter of the canons of ethics and general laws govern
ing the conduct and practice of law; and amount to an
abuse of the judicial processes of the courts in which these
cases are carried on.
The NAACP, in conjunction with the Inter Civic Council,
Inc., whose officers happen to be the local officers of the
Tallahassee Branch of the NAACP, maintained financially
and supplied the leadership for the boycott movement in
Tallahassee. The boycott movement drew heavy financial
and moral backing from certain individuals on the faculty
at the Florida A&M University. This support included the
use of their automobiles in the car pool operation, which
the Municipal Court of Tallahassee held to be unlawful and
illegal operation in the trial of the Inter Civic Council, Inc.
and the 21 individual defendants. Some faculty members
were convicted in that case.
Dr. Gore, in September 1956, called the entire staff of the
Florida A&M University together and cautioned them
against participating in this, boycott movement. Certain
members of the faculty still persisted in their participation
to the extent that Dr. Gore called them, in for personal and
private conversations regarding their activities in the boy
cott. In this class, among others, were: I. W. Elliott, Henry
W. Warner, Dr. Emmett Bashful, Dr. 0. V. Smith, E. D.
Irons, Irene Mandexter, M. G. Miles, James Hudson, Dr.
H. E. Cobb, Dr. S. S. Lewis, and Paul Lewis. Edwin F.
Norwood, Sr. was also active in the boycott.
, In the opinion of counsel, the record discloses that certain
75
attorneys for the NAACP have engaged in unethical conduct
in violation of the canons of ethics governing the practice
of law in Florida. It likewise discloses the very strong
possibility that some of the witnesses before this committee
committed perjury. Therefore, it is recommended that a
copy of the pertinent testimony be made available to the
proper officials of the Florida Bar and the state attorneys
having jurisdiction where the hearings were held, with the
recprest that the same be carefully studied and if violations
of law or ethics have occurred that proper proceedings be
instituted against any such offender.
The Florida State Teachers Association has concerned
itself with integration law suits. It, together with the
NAACP, has been one of the prime movers in instigating
the filing of the Virgil Hawkins case, to which the Florida
State Teachers Association has been one of the principal
financial contributors. The record shows that Virgil
Hawkins and the other plaintiffs involved in this case
had virtually no control over the course of this litigation
and absolutely no financial responsibility for the same, the
case having been handled and controlled entirely by persons
and organizations other than the individual plaintiffs.
A much more damaging report as to the NAACP’s activ
ities would undoubtedly be dictated by the record except
for the fact that all records of NAACP have been secretly
removed from the jurisdiction of this state for the express
purpose of preventing this committee from examining the
same.
SEABORAD WHITE CITIZENS COUNCIL
The Seaboard White Citizens Council was organized
under the laws of Washington, D. C. It has been in Florida
only a very short time. The only illegal activity which
could be attributed to it, which has come to the attention
of the committee, is the attempted burning of a cross by
four members of said organization in Miami, all of whom
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have been convicted for said act. The executive secretary
for the council, Federick John Kasper, was interrogated
at length. It is the opinion of committee counsel that
Kasper is either an opportunist, or an unstable personality
craving the spotlight of public attention, or else he is a
“ plant”, or a “ guided missile”, as it were, of some other
person or organization. His own testimony discloses him
to be a violent anti-semitic disciple of the mad poet and
treasonist Ezra Pound. This young man has never been a
success in any enterprise or undertaking in his entire life
time until he formed the Seaboard White Citizens Council.
Prior to his association with the council, his testimony
shows he flitted from temporary employment in one field of
endeavor to temporary employment in other fields of en
deavor without any indication of any stability or steadi
ness of purpose whatsoever. His two bookstore operations
were financed on monies he succeeded in extracting from
two or more women. Each store stocked an amazing quan
tity of anti-semitic and outright fascist literature. They
appear to have been a sort of gathering place for people
of fascist leanings, all of whom appear to have been close
friends and disciples of the mad poet Ezra Pound. In
addition to serving as a gathering place for the above
described people and as a dispensary of fascist literature,
Kasper’s bookstores seem mainly to have served as places
for intermixing of the white and Negro races. This peren
nial business failure has come closer to supporting himself
financially through his Seaboard White Citizens Council
operation than in any other endeavor in his lifetime.
It is impossible to imagine how this man’s ideas, actions
and conduct can redound to the benefit of any segment of
the people of Florida or the entire south for that matter.
In fine, Kasper discloses himself to be an outside inter
meddler in the racial problems of Florida and the south,
whose motives are highly questionable and whose presence
and activities the State of Florida can very well do without.
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DADE COUNTY PROPERTY OWNERS
ASSOCIATION
An examination of the entire records, as well as the
president and several members of the Dade Comity Property
Owners Association, fails to disclose any unlawful or
dangerous conduct on its behalf.
All of the above is supported by the committee’s public
record. There is, in the files of this committee, a great deal
of substantial evidence which, due to the limitations of
time, has not been placed in the record. Nor has the staff
had sufficient time to conduct the thorough type of inves
tigation which should really be conducted on the organiza
tions above referred to. This evidence embraces a con
siderable number of organizations to which no reference is
made in this report.
Within the last few days, information and sources of
information have become available to the staff which tend
to show the Communist Party and certain other subversive
organizations have made plans to use the racial tensions in
the south to set one segment of the population against the
other in this country and to thereby help accomplish their
aim of world domination. Evidence now available to the
staff strongly indicates that the Communist Party has
sought to, and to some degree may have actually, infil
trated the NAACP and sought to use it for this purpose.
Unfortunately it is impossible to conduct the type of inves
tigation and to hold the necessary hearings to determine the
true nature and extent of this situation within the lifetime
of this committee.
We regret to report that on February 27, 1957, in a public
committee hearing in Miami, Florida, one Allen H. Neuharth
of 19220 Northwest Fifth Avenue, Miami, Florida, repeat
edly stood in wilful, open, and continued defiance of this
78
committee and of the Legislature of Florida. He repeatedly
declined the lawful instructions of the acting chairman of
the committee to answer relevant and lawful questions
propounded to him without assigning any lawful excuse
for his failure to answer. His testimony appears on pages
1382 through 1420 of the record, inclusive. We feel that the
citation and punishment of this witness for contempt of
the Legislature is essential to the preservation of the Legis
lature’s right to compel witnesses to appear and testify.
We, therefore, are reluctantly driven to recommend that
this witness be cited for contempt.
We further recommend that copies of this committee’s
report be mailed to the Attorneys General of each of the
forty-eight states.
Respectfully,
/s / H e n r y W. L a n d , Chairman
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