Pearson v. Murray Appellants' Brief

    R aymond  A . P earson, Presi­
dent, W. M. H illegeist, 
Registrar, and G eorge M. 
S hriver, J ohn  M . D en n is , 
W illiam  P . C ole, H enry 
H o l z a p f e l , J ohn  E. 
R aine , D e . W. W. S k in ­
ner, M es. J ohn  L. W h ite - >- 
HURST AND J . MlLTON P aT- 
teeson, Members of the 
Board of Regents of the 
University of Maryland,

vs.
D onald G. M urray.

I n T he

Court of Appeals
O f M aryland .

O ctober T erm , 1935.

G eneral D ocket No. 53.

APPELLANTS’ BRIEF.

HERBERT R. O ’CONOR,
Attorney General,

WM. L. HENDERSON,
Asst. Attorney General,

CHARLES T. LeYINESS, 3rd, 
Asst. Attorney General,
Attorneys for Appellants.

The Daily Record Co. Print, Baltimore.



R aymond A. P earson, Presi­
dent, W . M. H illegeist, 
Registrar, and G eorge M. 
S hriver, J ohn  M. D en n is , 
W illiam  P . Cole, H enry 
H o l z a p e e l , J ohn  E. 
R aine , D r . W . W . S k in ­
ner, M rs. J ohn  L. W h ite ­
hurst  and J . M ilton  P at­
terson, Members of the 
Board of Regents of the 
University of Maryland,

vs.
D onald G. M urray.

I n T he

Court of Appeals
Op M aryland .

O ctober T erm , 1935.

General D ocket N o. 53.

APPELLANTS’ BRIEF.

STATEM EN T OF TH E CASE.

This is an appeal from the Baltimore City Court in 
which the appellee (petitioner below), who is a colored 
man, sued for a writ of mandamus to require the defend­
ants, the Regents of the University of Maryland, to admit 
him as a student in the law school of the University. The 
lower court granted the writ.



2

QUESTION ON A PP E A L AND A PPELLAN TS’ 

CONCLUSIONS THEREON.

Are the defendants compellable in mandamus to admit 
a negro to the law school? The lower court ruled they 
were so compellable.

The defendants contend that the trial court erred, for 
the following reasons:

I.

M ANDAM US IS NOT THE PROPER REM EDY IN THIS CASE.

1. Petitioner Has No Right to Sue in Mandamus to Com pel the 
University Officials to Adm it Him. His Rem edy, If A ny, Is by  A p ­
propriate A ction  to Require the Proper State Officials to Supply a 
Law School for  Negroes.

II.
TH E EXCLUSION OF THE APPELLEE DOES NOT V IO L A T E  HIS 

CO N STITU TION AL RIGH TS.

1. Since education is exclusively a State matter, he has no right 
to admission m erely because he is a citizen o f  the United States.

2. The equal protection  o f  the laws does not prevent classifica­
tion on the basis o f  race.

III.
TH E L A W  SCH OOL OF TH E U N IVER SITY OF M ARYLAN D  IS 

NOT AM ENABLE T O  C O N STITU TION AL 
LIM ITATION S.

1. The University o f  Maryland Is in the Nature o f  a Private 
Corporation.

2. Private Institutions M ay Select Their Students Arbitrarily, 
W ithout Regard to the Fourteenth Am endm ent.

3. The Law School o f  the University Derives Its M aintenance 
Principally From Tuition Charges to Students.



3

EVEN IF TH E L A W  SCH OOL IS A  PUBLIC IN STITU TION  AM EN­
ABLE T O  TH E FOURTEENTH AM ENDM ENT, IT IS NOT 

REQUIRED T O  A D M IT NEGROES BECAUSE TH E ST A TE  
PROVIDES SCHOLARSHIPS FOR THEIR 

EXCLUSIVE USE.

X. The Policy  o f  This State Is to Separate the Races.

(a) In railway coaches

(b) In private and public educational institutions, at 
scholastic, collegiate and professional levels.

2. Separation o f  the Races in Educational Institutions Has Been 
Upheld by  the Highest Authority.

3. This State A ffords Its Colored Citizens Substantially Equal 
Facilities fo r  Public Education.

(a) It has a dual and practically identical system of 
secondary education for the two races.

(b) It affords substantially equal opportunities at col­
legiate levels: at Princess Anne Academy, at Mor­
gan College, and by scholarships.

(c) At professional levels it affords no colored schools 
because heretofore there has been no sufficient de­
mand therefor; but the scholarship system offers 
its negro citizens opportunities and advantages 
substantially equal to those given its white citizens.

STATEM EN T OF TH E FACTS.

The petitioner is a Negro (E. 23); he is twenty-two 
years old; has lived in Baltimore all his life; has attend­
ed colored Public School No. 103, on Division Street, 
Douglas High School and Amherst College, Amherst, 
Massachusetts (E. 45). He intends to practice law in the

IV.



4

City of Baltimore and desires to enter the Law School of 
the University of Maryland, because it is convenient and 
less expensive for him, and because he would be able to 
observe the Maryland courts and become acquainted with 
other practitioners. Also he is a citizen of this State 
and thinks he “ should have a right to go there”  (R. 45).

In December, 1934, he addressed a letter to the Dean 
of the Law School in which he stated that he was a grad­
uate of Amherst College of the Class of 1934 and de­
sired to secure admittance to the school. He also stated 
he could secure necessary high school records from 
Douglas High School “ the only Negro High School in 
this City”  (R. 29). He received a reply from Defendant 
Pearson, the President of the University, in which he 
was referred to Princess Anne Academy which is main­
tained as a separate institution of higher learning for 
the education of Negroes (R. 30). Later his applica­
tion form and $2.00 money order for an entrance fee 
were returned to him (R. 32).

In March, 1935, petitioner addressed a letter to the 
Board of Regents of the University of Maryland. He as­
serted he was a citizen of the State and fully qualified 
to become a student of the University of Maryland Law 
School. He stated that there is no other State institu­
tion which offers a legal education. He said that the 
arbitrary action of the. officials of the University of 
Maryland in returning his application was unjust and 
unreasonable and contrary to the Constitution of the 
United States and the Constitution and laws of this 
State. He appealed to the Regents to accept his appli­
cation and, finding him qualified, to admit him to the 
school (R. 32). In reply to this letter he received an­
other communication from President Pearson in which



5

lie was referred to the exceptional facilities open to him 
for the study of law at Howard University, in Washing­
ton. President Pearson pointed out that Howard Law 
School was rated as “ Class A ”  and was fully approved 
by the American Bar Association and is a member of 
the Association of American Law Schools. The Presi­
dent further stated that the tuition at Howard Law 
School was $135.00 per year, in contrast to $203.00 per 
year in the day school and $153.00 per year in the night 
school of the University of Maryland Law School (B. 
34).

On April 18, 1935, petitioner filed in the Baltimore 
City Court his petition for a writ of mandamus, requir­
ing the Board of Begents to accept his application and, 
upon finding him qualified, to admit him in the regular 
manner as a first-year student in the day school of the 
University of Maryland School of Law for the academic 
year 1935-1936. In his petition he asserted that the Uni­
versity of Maryland is an administrative department of 
the State and performs as essential governmental func­
tion, supported and maintained principally by funds 
from the General Treasury of the State. He further 
pointed out that the charter of the University provides 
that it shall be founded and maintained “ upon the 
most liberal plan, for the benefit of students of 
every country and every foreign denomination, who 
shall be freely admitted to equal privileges and 
advantages of education, and to all the honors of the 
University, according to their merit, without requiring 
or enforcing any religious or civil test, upon any parti­
cular plan of religious worship or service”  (B. 4). He 
further asserted that the action of the Begents in refus­
ing him admittance violated the Fourteenth Amendment



6

of the United States Constitution in that it denied him 
the equal protection of the laws and deprived him of 
liberty and property without due process of law (R. 
7, 8).

In their answer the Regents pointed out that the Bal­
timore Schools of the University of Maryland, of which 
the Law School is a part, do not derive their mainten­
ance funds principally from the General Treasury of the 
State, but are supported principally by tuition fees paid 
by students in said schools (R. 17).

The Regents further pointed out that this State has 
provided separate institutions of learning for the ex­
clusive use of colored persons, listing the acts of the 
Legislature setting up their separate system (R. 19) ; 
also they called attention to the scholarship statutes 
provided by the General Assembly at its 1933 and 1935 
regular sessions which were open to the petitioner as a 
substitute for legal education in this State; and that un­
der the 1935 Scholarship Act a commission on Higher 
Education of Negroes was established to administer the 
sum of $10,000 for scholarships to Negroes to attend col­
lege out of the State, expressly providing that the schol­
arships are for “ college, medical, law or other profes­
sional courses * * # for the colored youth of the State 
who do not have facilities in the State for such courses”  
(R. 20).

However, petitioner did not desire one of these schol- 
orships (R. 48) and took no action to obtain one (R. 50).

Up to June 18th, 1935 (the time of the trial below) 
three hundred and eighty (380) colored persons had ob­
tained application blanks, and one hundred and thirteen



7

(113) had returned these forms properly tilled out, for 
scholarships under this Act (E. 109).

Under the plan worked out for the issue of these schol­
arships it was decided by the Commission to award schol­
arships both to undergraduate students and to graduate 
or professional students. About one-half of the scholar­
ships would go to undergraduates and one-half to grad­
uates (E. 112-113). Of the number of application blanks 
requested three hundred and sixty four (364) were for 
undergraduate work and sixteen were for graduate 
work. Of these sixteen only one applied for law study 
(E. 109-110). Petitioner would have been eligible for one 
of these scholarships if he had applied (E. 113). The 
scholarships are to cover tuition only and, dividing the 
$10,000 per year equally between graduate study and 
undergraduate study, it may be possible to give more 
than twenty-five scholarships for each group (E. 112); 
no one applicant may receive more than $200.00 under 
one of these scholarships (E. 113).

If petitioner had applied for a scholarship for How­
ard University, in Washington, he would be able to com­
mute daily from his home in Baltimore, but he “ wouldn’t 
want to ’ ’. He can get from Baltimore to Washington 
in one hour (E. 49). He stated that if he attends Mary­
land Law School he will not have to pay for his room 
and board, whereas if he attended school in Washing­
ton and did not commute, he would have to pay for his 
room and board (E. 50).

Operating under statutory direction (Code, Article 
77, Section 200, et seq.) this State has established a dual 
system of public education, one administered for its 
white and one administered for its colored citizens. The



8

two systems offer approximately equal, and in most 
cases identical, opportunities for learning.

In the counties of the State there are twenty-eight 
colored high schools and five hundred and ten colored 
elementary schools, all of which compare “ very favor­
ably ’ ’ with the schools operated for white children. The 
courses offered students in each are identical and the 
curriculum offered in the small colored high school is the 
same as in the small white high school (R. 88). Mary­
land requires sixteen units of high school work for grad­
uation and even the small colored high schools offer the 
full sixteen units; their graduates are admitted into such 
colleges as Morgan, in the State, and such universities as 
Howard and Lincoln out of the State (R. 88).

Ninety-eight per cent of the teachers in the colored 
elementary schools hold a first grade certificate, which 
is the same percentage as the white teachers in the white 
elementary schools (R. 89).

As to the distribution of these colored schools through­
out the State they are found in every county except 
Garrett, where the population is sparse. In a county 
like Prince George’s where the colored population is 
densest, there are forty-four colored schools in the coun­
ty and seventy elementary teachers. No colored child 
'is required to go more than one and a half miies to reach 
a school; and, on the average, colored children in the 
State live about three-fourths of a mile from a colored 
school house (R. 90).

In the majority of the counties of the State the school 
term for colored and white children is identical (R. 91); 
in certain counties on the Eastern Shore where there is



9

trucking, colored schools run eight months instead of 
nine. This is because of the strawberry season, the 
colored children being needed by their parents to pick 
strawberries (R. 90). In these schools which are open 
only eight months a year, the same subjects are taught 
as in the full-term schools, and upon completion the stu­
dent receives the same number of credits and is as well 
prepared to go to college as the full-term students 
(R. 91).

As to the question of school attendance, the State 
provides one attendance officer for each county. How­
ever, the attendance records show a result “ slightly less 
for Negroes than White, not very much less”  (R. 92).

In regard to school transportation there are more 
white children transported to school than colored chil­
dren, but there is a gradual increase in the number of 
colored children transported and for the scholastic year 
1935-1936, about ten one-room schools will be closed and 
the colored children will be transported to other schools 
(R. 92). A school for colored children is opened in any 
community where it seems there are sufficient number 
of children to run a school and employ a teacher. In 
some cases in this State schools are operated for as few 
as seven colored children (Anne Arundel County); one 
school in Dorchester County is operated for fewer than 
ten children (R. 93).

Colored and white teachers do not receive the same 
salaries, but this does not “ interfere with the equality 
of education” . A Negro teacher having the same quali­
fications as a white teacher “ would not slight the mem­
bers of his own group because he was not paid as much 
as the white teacher (R. 99).



10

County education for Negroes, all in all, is substan­
tially equal to the education for whites. There are some 
items where it is not (R. 93).

In Baltimore City the Douglas High School for Ne­
groes is reputed to be as good as any white school in the 
City (R. 101).

At college levels there are available for Negroes in 
this State teachers training schools set up by the Pub­
lic Education Law (R. 19); Morgan College, a private 
institution in Baltimore City for Negroes, and Princess 
Anne Academy, which is the Eastern Branch of the Uni­
versity of Maryland. Morgan College receives a sub­
stantial money grant from the State of Maryland and is 
exclusively a Negro liberal arts college. The present 
student body comprises about six hundred Negroes. For 
the scholastic year 1934-1935, the State appropriated the 
sum of $23,000 thereto, and for the scholastic year 1935- 
1936, it has appropriated the sum of $35,000 (R. 105, 
106). It is a co-educational college specializing in liberal 
arts and courses in education, particularly for high 
school teachers. It awards degrees of Bachelor of Arts, 
Bachelor of Science and Education, Bachelor of Science 
and Home Economics. It does not maintain a law school 
or any other professional school (R. 104).

To Princess Anne Academy the State appropriated 
for the scholastic year 1934-1935 the sum of $15,000. 
There are about thirty-three colored students there who 
therefore cost the State approximately $468.00 each. 
Compared to the appropriation for white students at the 
University of Maryland and its several schools, the col­
ored student at Princess Anne receives from the State 
almost three times as much. The appropriation for the



11

University of Maryland, college department, for the 
scholastic year 1934-1935 was $230,000 for fifteen hun­
dred students, about $153.00 per student; for the entire 
University, including the college department and the 
professional schools, the appropriation was $318,000.00 
for thirty-six hundred students, or about $88.00 per year 
per student (R. 67, 83). These figures do not include the 
appropriation to the University of Maryland Hospital 
(R. 82-83).

The appropriation for the present year is between 
$30,000 and $40,000 less than for the scholastic year 
1934-1935 (R. 84).

The Princess Anne Academy seven or eight years ago 
was “ just a school for Negro children, some of them 
were in the lower grader some in the high school”  (R. 
72). During the last few years the lower grades and 
high school grades have been abandoned, and it is now 
operated as a Junior College (R. 51, 72). The rating as 
a Junior College is obtained by students who finish at 
Princess Anne Academy and enter other colleges, where 
they are given credit for two years of college work and 
are accredited as juniors, or third year students (R. 51). 
Graduates from Princess Anne Academy enter the third 
year of Morgan College, Virginia State College at 
Petersburg, or Hampton Institute in Virginia (R. 74, 
75). Although there are but approximately thirty-three 
students at Princess Anne Academy, the school is 
equipped to take care of more than one hundred stu­
dents. The dormitories for men and women can accomo­
date as many as one hundred and seventy-five persons 
and the same number can be handled in the class-room. 
Class-room facilities are almost unlimited (R. 74). The 
Princess Anne Academy offers a training especially de­



12

signed to prepare colored boys for country life. For 
this reason the school is not better attended, according 
to President Pearson, because “ the importance and at­
tractiveness and value of that type of education is not 
well understood by the leaders in the negro race. ’ ’ By 
that he meant farming and home economics (R. 75-76). 
Also the Academy is not as attractive as the older in­
stitutions with more years behind them and more money 
to spend, according to Dr. Pearson (R. 76). In addition 
to the facilities at Princess Anne Academy there has 
been made available money for scholarships for students 
to go elsewhere and finish their college education, the 
amount of the scholarship granted to any one student 
depending upon the difference between the cost of tui­
tion at Princess Anne Academy and the cost of tuition 
at the college to which the student might desire to go. 
The policy was to equalize things so that “ it is just as 
cheap to go outside the State as to stay in the State”  
(R. 71).

No colored students have been admitted to the Balti­
more Schools of the University of Maryland since the 
early nineties when two negroes were admitted as an ex­
periment. The practice was discontinued thereafter (R. 
86, 107). Out of a faculty of eighteen instructors at the 
Law School, twelve are in general practice in Maryland 
or on the bench (R. 85).



13

ARGUMENT.
I.

M ANDAM U S IS N O T TH E PROPER REM EDY IN TH IS CASE.

1. Petitioner Has No Right to Sue in Mandamus to Com pel the 
University Officials to A dm it Him. His Rem edy, If Any, Is by A p ­
propriate A ction  to  Require the Proper State Officials to Supply a Law 
School fo r  Negroes.

In Cumming vs. County Board of Education, 175 U. 
S. 528, 44 L. ed. 262, certain negroes sued a Georgia board 
of education to enjoin it from maintaining a high school 
for white children without providing a similar school for 
colored children which had existed and had been discon­
tinued. The Supreme Court of Georgia upheld the denial 
of the writ. The Supreme Court of the United States af­
firmed this judgment. In discussing the remedy sought 
the Supreme Court said, at page 266, law edition:

“ If, in some appropriate proceeding instituted di­
rectly for that purpose, the plaintiffs had sought to 
compel the Board of Education, out of the funds in 
its hands or under its control, to establish and main­
tain a high school for colored children, and if it ap­
peared that the Board’s refusal to maintain such a 
school was in fact an abuse of its discretion and in 
hostility to the colored population because of their 
race, different questions might have arisen in the 
state court. ’ ’

The basis of mandamus is a right in the petitioner and 
a corresponding duty in the defendant. No duty arises in 
the officials of the University of Maryland to admit a col­
ored man to its law schools merely because the State has 
not provided a separate law school for colored persons. 
The duty, if any, is upon the proper state officials to pro­
vide such a separate institution; and not upon the law



14

school to admit a negro contrary to long established pre­
cedent and contrary to the public policy of this State 
founded in tradition and in statute law.

To require the University to admit a negro, in the ab­
sence of any legislative authority so to do, and contrary 
to the settled policy of this State, would be to enlarge the 
functions of the University by judicial mandate. The 
State has established an elaborate system of separate ed- 
ucation for its colored citizens. If it be found that this sys­
tem is not adequate in every respect, the remedy certainly 
is not to pick out the University of Maryland and to seek 
by judicial action to compel it to supply the missing 
link.

Suppose there were a men’s college and a women’s col­
lege as part of the University and suppose that fire de­
stroyed the men’s college. Is it conceivable that man­
damus would lie to require the women’s college to admit 
men students merely because the men thus were left with­
out facilities for education! If the proper authorities did 
not rebuild the men’s college their remedy, if any, doubt­
less would be against these authorities. Their remedy cer­
tainly would not be, by mandamus, to compel the women’s 
college to take them in.

In Martin vs. Board of Education, 42 W. Ya. 514, 26 S. 
E. 348 (1896) a negro citizen, resident of a district which 
provided white schools but no colored schools, sued to 
have his children admitted to a white school. The Court 
said, at page 349 :

‘ ‘ Petitioner’s counsel insists that * * * because the 
legislature and the board of education had failed to 
make proper provision to afford equal facilities to



15

colored children, that they are entitled to attend the 
school provided for white children, on equal terms. 
Such a determination would be, in effect, permitting 
the neglect of the legislature or board of education 
to abrogate the Constitution, while it is the para­
mount duty of this Court to see that they obey it. 
Therefore the circuit court could not do otherwise 
than refuse the prayer of the petition.”

It is apparent that the courts cannot remedy the lack 
of school facilities by enlarging the powers of existing 
schools contrary to the public policy of a state as ex­
pressed in its laws and in its practice.

Also it is well settled that mandamus will not lie to 
compel the performance of a discretionary act. Woods 
vs. Simpson, 146 Md. 547. Petitioner cannot point to any 
statutory or charter provision requiring the University 
to admit colored persons. It is clear that the University’s 
rights to determine what class or what individual may be 
admitted or barred from its cloisters is a matter within 
its discretion, to be exercised in its best judgment and 
in accordance with public policy. Therefore its exercise 
of this discretion is not within the control of the courts.

In Clark vs. Board of Directors, 24 Iowa 266 (1868) it 
was held that where a discretion is thus left to the board 
of directors it cannot be controlled by mandamus even 
though the discretion be unwisely exercised.

In State vs. School District, 154 Ark. 176 (1922) it was 
held that the action of a school board in classifying pupils 
on the basis of color is discretionary and no right of man­
damus will issue unless it can be shown that the Board 
acted arbitrarily.



16

In Guthrie vs. Board, 86 Old. 24 (1922) it was held in a 
similar case that mandamus will not lie where its issu­
ance would work injustice or introduce confusion and 
disorder, citing 26 Cyc. 287.

Therefore it is urged that mandamus against the Uni­
versity is not open to the petitioner in this case.

II.
TH E EXCLUSION OF TH E APPELLEE DOES N O T V IO L A T E  HIS 

C O N ST ITU T IO N A L R IG H TS.

1. Since education  is exclusively a State matter, he has no right 
to adm ission m erely because he is a citizen o f  the United States.

At the outset of a constitutional inquiry it is pertinent 
to consider the nature of the right claimed to be im­
paired and the protection of that right asserted to be 
given by the federal constitution. In the sixteenth para­
graph of the complaint in this case it is asserted that 
the actions of the respondents “ violate the Fourteenth 
Amendment to the Constitution of the United States in 
that they amount to a denial to Petitioner, a citizen of the 
United States and of the State of Maryland, by the State 
of Maryland or an administrative department thereof, of 
the equal protection and benefits of the laws, as secured 
to him by the said Fourteenth Amendment and the law 
of the land; and in that such acts were unequal, oppres­
sive and discriminatory and deprived the said Donald 
G. Murray, Petitioner, of his liberty and property with­
out due process of law as guaranteed him by the Four­
teenth Amendment and the law of the land aforesaid.”  
(R. 7,8).



17

No violation of the Constitution of Maryland is alleged
in this case.

It is submitted that education is purely a matter of 
State concern and does not affect a person as a citizen 
of the United States.

As was said by the Supreme Court in the Slaughter 
House Cases, 16 Wall. 36, 21 L. ed. 394 (1873), the privi­
leges and immunities of citizens of the United States are 
those which arise out of the nature and character of the 
national government, the provisions of its constitution or 
its laws and treaties made in pursuance thereof; and it 
is those which are placed under the protection of Con­
gress by this clause of the Fourteenth Amendment. Fur­
ther it said:

“ The Fourteenth Amendment recognizes a dis­
tinction between citizenship of a state and citizen­
ship of the United States * * * It is quite clear then 
that there is a citizenship of the United States and 
a citizenship of a State which are distinctive from 
each other and which depend upon different charac­
teristics or circumstances in the individual.”

This decision has been commonly regarded as having 
established a dual citizenship in an individual, a state 
citizenship and a United States citizenship. Education 
has been consistently held one of those matters pertain­
ing to an individual as a citizen of a state and not as a 
citizen of the United States. As was said in Lehew vs. 
Brummell, 103 Mo. 546, 550, 15 S. W. 765 (1890) :

“ The common-school sysem of this state is a 
creature of the state constitution and the laws passed 
pursuant to its command. The right of children to at­
tend the public schools and of parents to send their 
children to them is not a privilege or immunity be­



18

longing to a citizen of the United States as such. It 
is a right created by the state, and a right belonging 
to citizens of this state, as such.”

In Piper vs. Big Pine, 193 Cal. 664, 669 (1924), it was 
said:

“ The privilege of receiving an education out of 
the expense of the state is not one belonging to those 
upon whom it is conferred as citizens of the United 
States. The federal constitution does not provide 
for any general system of education to be conducted 
or controlled by the national government. It is dis­
tinctly a state affair.”

In Gumming vs. County Board of Education, supra, 
where there was under review a state court decision de­
nying an injunction against the maintenance of a white 
high school while failing to maintain a colored one, the 
Supreme Court, in denying the right of negro petition­
ers, said:

“ Under the circumstances disclosed, we cannot 
say that this action of the state court was, within the 
meaning of the Fourteenth Amendment, a denial by 
the state to the ■ plaintiffs and to those associated 
with them of the equal protection of the laws or of 
any privileges belonging to them as citizens of the 
United States. We may add that while all admit that 
the benefits and burdens of public taxation must be 
shared by citizens without discrimination against 
any class on account of their race, the education of 
the people in schools maintained by state taxation is 
a matter belonging to the respective states, and any 
interference on the part of Federal authority with 
the management of such schools cannot be justified 
except in the case of a clear and unmistakable dis­
regard of rights secured by the supreme law of the 
land. We have here no such case to be determined;



19

and as this view disposes of the only question which 
this court has jurisdiction to review and decide, the 
judgment is affirmed.”

In a Kentucky case it was held that the benefits of 
negroes in the school-fund of Kentucky must be received 
“ as a citizen of this commonwealth and not as a citizen 
of the United States. ’ ’

Marshall vs. Donovan, 73 Ky. 681 (1874).

Further, the Kentucky Court said, at p. 688:

“ These interests and benefits are privileges and 
immunities pertaining to the citizenship of the State 
owning the school fund and maintaining the school- 
system, and they must be secured and protected by 
the state government. They do not fall within that 
class of fundamental rights which, according to the 
opinion of the Supreme Court in the Slaughter 
House cases, are under the special care of the Fed­
eral government. ’ ’

In Cory vs. Carter, 48 Ind. 327 (1874) a negro sued in 
mandamus on behalf of his children and grandchildren 
to compel admittance to a white school. It was held, in 
denying the right, that the legislature had not provided 
for the admission of colored children into the same 
schools as white children; and even if the Fourteenth 
Amendment required their admission the courts cannot, 
in the absence of legislative authority, confer the right 
upon them.

In People vs. Gallagher, 93 N. Y. 438 (1883) suit was 
brought on behalf of a colored girl to require her admis­
sion into a white school. The Court of Appeals of New 
York, through Chief Justice Ruger, held that the Four­



20

teenth Amendment does not operate on school classifica­
tions. Reviewing the history of this amendment and cit­
ing the Slaughter House Cases, supra, the Court said, at 
page 447:

“ It would seem to be a plain deduction from the 
rule in that case that the privilege of receiving an 
education at the expense of the state, being created 
and conferred solely by the laws of the state, and al­
ways subject to its discretionary^ regulation, might 
be granted or refused to any individual or class at 
the pleasure of the state. This view of the question is 
also taken in State vs. McCann, 21 Oh. St. 210, and 
Cory vs. Carter 48 Ind. 337. The judgment appealed 
from might, therefore, very well be affirmed upon 
the authority of these cases.”

This case also distinguishes “ social rights”  from civil 
rights guaranteed by the Fourteenth Amendment.

In Gong Lum vs. Rice, 275 U. S. 78, 72 L. ed. 172 (1927) 
it was held that no right of a Chinese citizen of the United 
States under the Federal constitution is infringed by 
classifying her for purposes of education with colored 
children and denying her the right to attend schools es­
tablished for the white race. The Court said:

“ The decision (to bar the Chinese person from its 
white schools) is within the discretion of the state 
in regulating its public schools and does not conflict 
with the Fourteenth Amendment.”

In Hamilton vs. University of California, 79 L. ed. 159, 
(1934) where it was held that military training might be 
made compulsory for all students of the University, the 
Supreme Court said, at page 166:

“ The privileges and immunities protected are 
only those that belong t o . citizens of the United



21

States as distinguished from citizens of the state— 
those that arise from the constitution and laws of the 
United States as contrasted with those that spring 
from other sources.”

As was held in Gong Lum vs. Rice, supra, classification 
of students on the basis of race and color is a matter ex­
clusively of state policy and does not conflict with any 
provisions of the Federal constitution.

It is submitted that there is no violation of any Fed­
eral constitutional privilege or immunity in the action of 
the Eegents in denying admission to petitioner on the 
grounds that he is a negro.

2. The equal protection  o f  the laws does not prevent classifica­
tion on the basis o f  race.

As pointed out above, classification of students is a 
matter of internal State policy. If it were unconstitu­
tional to classify on the basis of race, it also would be im­
proper to classify on the basis of studies, or on the basis 
of sex. Certainly it cannot be contended that if a state 
provided a law school for its citizens it also must provide 
a medical school, or an engineering school. The University 
of Maryland includes among its Baltimore Schools a law 
school and a medical school. It does not include an en­
gineering school. And yet this is a discrimination in fa­
vor of those desiring to study law or medicine and against 
those desiring to study engineering. Similarly a state 
might provide, without encountering constitutional ob­
jections, a certain school for men without a correspond­
ing school for women. Distinctions on the basis of sex 
uniformly have been upheld by the courts.



22

In Quong Wing vs. Kirkendall, 223 U. S. 59, 56 L. ed. 
350, the Supreme Court, speaking through Mr. Justice 
Holmes, upheld such distinctions in these words:

“ If the State sees fit to encourage steam laundries 
and discourage hand laundries, that is its own affair. 
And if, again, it finds a ground of distinction in sex, 
that is not without precedent. It has been recog­
nized with regard to hours of work. Muller vs. Ore­
gon, 208 IT. S. 412, 52 L. ed 551, 28 Sup. Ct. Hep. 324, 
13 A. & E. Ann. Cas. 957. It is recognized in the re­
spective rights of husband and wife in land during 
life, in the inheritance after the death of the spouse. 
Often it is expressed in the time for the coming of 
age. If Montana deems it advisable to put a lighter 
burden on women than upon men with regard to an 
employment that our people commonly regard as 
more appropriate for the former, the Fourteenth 
Amendment does not interfere by creating a ficti­
tious equality where there is a real difference. The 
particular points at which that difference shall be 
emphasized by legislation are largely in the power 
of the state.”

Certain discriminations, either against persons, or 
classes, or occupations are found in our tax laws, our 
license laws and even in the classification of what work 
may be performed on Sundays. As this Court said in 
Ness vs. Supervisors, 162 Md. 529, at page 537:

“ Discriminations in the ordinance between activi­
ties to be permitted and those not to be permitted on 
Sundays are objected to as unconstitutional because 
of the inequality of treatment of citizens engaged 
in the activities of the one group and the other, and 
because of supposed deprivation of the liberty and 
property of those whose activities are excluded, with­
out due process of law. * * * And that there are dis­
criminations which cannot be explained or justified



23

by reasons is possibly true. But what is tolerable and 
what intolerable in Sunday observance seems to be 
a question which cannot be fully answered by a pro­
cess of reason. * * * But the mere fact of inequality 
is not enough to invalidate a law, and the legislative 
body must be allowed a wide field of choice in deter­
mining what shall come within the class of permit­
ted activities and what shall be excluded” .

This Court found no such “ obviously arbitrary and 
grievous discrimination”  as would make the ordinance 
unconstitutional (page 538).

And again, in Jones vs. Gordy, 180 Atl. 272, this Court 
held that the Legislature had a wide discretion in fram­
ing excise laws.

“ And unless the distinctions it makes” , the Court 
said, “ are obviously without reasonable foundations 
in conditions to be dealt with, there is no departure 
from constitutional powers, and the courts have no 
function to fulfill.”  (page 277).

In Great House vs. Board of School Commissioners, 
198 Ind. 95, 151 N. E. 411 (1926) it was held at page 105:

‘ ‘ The classification of scholars on the basis of race 
or color, and their education in separate schools, in­
volve questions of domestic policy which are within 
the legislative discretion and control, and do not 
amount to an exclusion of either class. The Legisla­
ture has the power to provide for either separate or 
mixed schools.”

Also see Ilayman vs. Galveston, 273 U. S. 414.
It is submitted that the “ equal protection”  clause does 

not require a State to build a school for Negroes, just be­
cause it builds one for whites. Appellees cannot point to



24

any decision of this Court, or any decision of the Supreme 
Court, which requires equality of treatment or which 
forbids classification on the basis of race or color.

III.
TH E L A W  SCH OOL OF TH E U N IVER SITY O F M A R Y LA N D  IS 

NOT AM ENABLE T O  CO N ST ITU T IO N A L 
LIM ITATIO N S.

1. The University o f  Maryland Is in the Nature o f  a Private 
Corporation.

In the third paragraph of the petition it is asserted 
that the University is an administrative department of 
the State of Maryland and that it performs “ an essential 
governmental function” , with funds derived principally 
from the general treasury of the State. The regents in 
their answer admitted the “ allegation of fact”  of this 
paragraph, denying however that the Baltimore Schools 
derive their maintenance funds principally from the gen­
eral treasury (R. 4, 17).

The admissions of fact, of course, admit no conclusion 
of law; and it is submitted that whether the University 
of Maryland is a State Department or is in the nature 
of a private institution for the purposes of this case, is a 
question of law which by the pleadings is left open for 
the determination of this Court.

As pointed out by this Court in University of Maryland 
vs. Coale, 165 Md. 224, 231:

‘ ‘ The present University of Maryland is a con­
solidation of the University of Maryland, as incor­
porated by the Acts of 1812, chapter 159, and the 
Maryland State College of Agriculture, incorporated 
under the Acts of 1916, Chapter 372. The act of con­
solidation was passed by the Legislature of 1920, 
chapter 480.”



25

There is nothing in the consolidation Act which strips 
the University of Maryland, and its separate component 
schools, of its status as a private corporation. This Act 
(chapter 480, Acts of 1920) provides that the consoli­
dated University should possess, in addition to the 
powers of the Maryland State College of Agriculture, 
“ the powers, rights and privileges heretofore possessed 
by the Regents of the University of Maryland, under the 
charter of the University of Maryland, and may exer­
cise such of them as they shall from time to time deem 
judicious ’

The specific question as to whether or not the Uni­
versity of Maryland, as organized by the Acts of 1812, 
is a public or private corporation, was passed upon by 
this Court in 1838. There it was held that the University 
of Maryland was a private corporation. After a full dis­
cussion of the organization of the University, which itself 
was a consolidation of separate schools and colleges, 
this Court said:

“ The corporation of the University has none of 
the characteristics of a public corporation. It is not 
a municipal corporation. It was not created for 
political purposes, and is invested with no political 
powers. It is not an instrument of the government 
created for its own uses, nor are its members of­
ficers of the government or subject to its control in 
the due management of its affairs, and none of its 
property or funds belong to the government. The 
State was not the founder, in the sense of that term 
as applied to corporations. It was the creator only, 
by means of the act of incorporation, and may be 
called the incipient, not the perficient founder.

< i * * * it appears from the statement of the 
evidence, that it has been endowed to a small amount



26

by private donations, and no donations that it can 
derive from the bounty of the State would change 
its character, and convert it into a public corpora­
tion. ”

University of Maryland vs. Williams, 9 6 . & 
J. 365, 397-400.

In the re-organization plan of the State Government 
in 1922 the University retained its corporate status and 
the power to determine policies under which it should 
operate to the best public interest.

It is true that the Attorney General has consistently 
taken the position that the University of Maryland is a 
department of the State Government, for certain pur­
poses, such as immunity from suit.

Volume 16 of the Official Opinions of the At­
torney General, page 386.

The property of the University is owned by the State, 
and for general administrative purposes, it is treated 
like any other department.

Volume 9 of the Official Opinions of the At­
torney General, page 273.

The Attorney General advises and represents the Uni­
versity in legal matters, and its funds are disbursed 
through the State Comptroller.

However, in the matter of admitting students, the 
Board of Regents acts in the exercise of a charter power. 
The mere fact that it has been treated as a State Depart­
ment for some purposes, does not affect the question. As 
was said in the Williams case, supra, page 398:



27

“ It is said there have been subsequent endowments 
by the State. If it be so, that cannot affect the char­
acter of this corporation. If eleemosynary and pri­
vate at first, no subsequent endowment of it by the 
State, could change its character, and make it pub­
lic. ’ ’

It may also be noted that this question was not raised 
or discussed in the Coale case, supra. It may be signifi­
cant, however, that the Supreme Court dismissed the ap­
peal in that case, for want of a substantial Federal ques­
tion, whereas in the Hamilton case, supra, it assumed 
jurisdiction, commenting on the fact that by express Con­
stitutional provision and court decision, the University 
of California was part of the State Government.

2. Private Institutions May Select Their Students Arbitrarily, 
W ithout Regard to the Fourteenth Am endm ent.

It is well settled that the provisions of the Fourteenth 
Amendment refer to the action of the States exclusively 
and not to the action of individuals and private corpora­
tions.

In Clark vs. Maryland Institute, 87 Md. 643 (1898), 
there was under consideration a similar question raised 
by a colored citizen who was attempting to force his ad­
mittance into the Maryland Institute. This Court pointed 
out that the school is a private corporation, not created 
for political purposes nor endowed with political powers. 
It held:

“ It has none of the faculties, functions or features 
of a public corporation as they are designated in the 
Regents’ case, 9 Gill & Johnson, 365, and the many 
other cases which have followed that celebrated 
decision.”  Page 658.



28

In the Maryland Institute case there was a precedent 
of four colored persons who had been admitted prior to 
the refusal of this applicant. Commenting upon this the 
Court said:

“ It (the Maryland Institute) was established for 
the benefit of white pupils, and has never admitted 
any other kind with the exception of the four in­
stances already mentioned. When it found that the 
admission of these pupils had a very injurious effect 
on its interest, and seriously diminished its useful­
ness, it certainly had the right to refuse to continue 
such a disastrous departure from the scheme of ad­
ministration on which it was organized. It would 
have been mere folly to persevere in the experiment 
under the existing circumstances. We suppose that 
it could hardly be maintained that the constituted 
authorities of the corporation did not have the right 
to conduct its affairs according to the plan and policy 
on which it was founded. # * *”  Page 658.

Referring to the constitutional question the Court held 
that the Maryland Institute, in denying admittance to 
the negro, impaired no constitutional right. It said, at 
page 661:

“  * * * The Constitution of this State requires 
the General Assembly to establish and maintain a 
thorough and efficient system of free public schools. 
This means that the schools must be open to all with­
out expense. The right is given to the whole body of 
the people. It is justly held by the authorities that 
‘ to single out a certain portion of the people by the 
arbitrary standard of color, and say that these shall 
not have rights which are possessed by others, denies 
them the equal protection of the laws’. Cooley on 
Torts, page 287, where a large number of cases are 
cited. Such a course would be manifestly in vio­
lation of the Fourteenth Amendment, because it 
would deprive a class of persons of a right, which the



29

Constitution of the State had declared that they 
should possess. Excellent public schools have been 
provided for the education of colored pupils in the 
city of Baltimore. But the Maryland Institute is 
not a part of the public school system. This has 
been solemnly adjudged by this Court. St. Mary’s 
School v. Brown, 45 Maryland 310. The appellant 
has no natural, statutory or constitutional right to 
be received there as a pupil, either gratuitously or 
for compensation. He has the same rights, which 
he has in respect to any other private institution; 
and none other or greater. * * * ”

Just as Maryland Institute is not a part of the public 
school system, neither is the University of Maryland.

In Booker vs. Grand Rapids Medical College, 156 Mich. 
95 (1909), two negroes were taken into the school and the 
school attempted to bar them from returning the second 
year. It was held that the Medical College was a private 
institution which “ may select those whom they will re­
ceive as. students” . The Court further said:

“ The arbitrary refusal to receive any student 
would not violate any privilege or immunity resting 
in the positive law, protected or granted by the 
Federal or State Constitution. ’ ’

Also see note in 24 L. R. A. (N. S.) 447.

3. The Law School o f  the University Derives Its Maintenance 
Principally From Tuition Charges to Students.

As asserted by the Regents’ in their answer, and un­
controverted in the testimony, ‘ ‘ the Baltimore schools of 
the University of Maryland, of which the Law School is 
a part, do not derive their maintenance funds principally 
from the general treasury of the State but are supported 
principally by tuition fees paid by students in Siaid 
school”  (R. 17).



30

For all these reasons it is submitted that the University 
of Maryland and its school of law are not subject to the 
provisions of the Fourteenth Amendment, and that they 
may choose such students as they desire to admit.

IV.
EVEN IF TH E L A W  SCH O O L IS A  PUBLIC IN STITU TION  AM EN ­

ABLE TO  TH E FOU RTEEN TH  AM ENDM ENT, IT IS NOT 
REQUIRED T O  A D M IT NEGROES BECAUSE TH E S T A T E  

PRO VID ES SCH OLARSHIPS FOR TH EIR 
EXCLU SIVE USE.

1. The P olicy  o f  This State Is to Separate the Races.

(a) In railway coaches.

It has long been the policy of this State to provide sepa­
rate facilities for the two races in railway coaches and 
on steamboats. Article 27 of the Code, Sections 432 to 
448 inclusive, is statutory authority for the separation 
of white and colored passengers in these mediums of 
public transportation.

This segregation statute has been upheld by this Court, 
as to intra-state commerce, in Hart vs. State, 100 Md. 
595, in which the Court of Appeals quoted with approval 
from West Chester and Philadelphia Railroad Com­
pany vs. Miles, 55 Pa. St. 209 (1867) where it was said, 
prior to a legislative Act prohibiting segregation, at 
page 212:

“ It is much easier to prevent difficulties among 
passengers by regulations for their proper separa­
tion, than it is to quell them. The danger to the 
peace engendered by the feeling of aversion between 
individuals of the different races cannot be denied. 
It is the fact with which the company must deal. If a 
negro takes his seat beside a white man or his wife 
or daughter, the law cannot repress the anger, or



31

conquer the aversion which some will feel. However 
unwise it may be to indulge the feeling, human in­
firmity is not always proof against it. It is much 
wiser to avert the consequences of this repulsion of 
race by separation than to punish afterwards the 
breach of peace it may have caused * * *.”

The Pennsylvania Court likened the race classification 
to the separation of the sexes:

“ The ladies’ car is known upon every well-regu­
lated railroad, implies no loss of equal right on the 
part of the excluded sex, and its propriety is doubted 
by none.”  Page 211.

The power of the State to separate the races in railway 
coaches has been upheld by the Supreme Court in Plessy 
vs. Ferguson, 163 IJ. S. 537 (1895).

Discussing the applicability of the Fourteenth Amend­
ment the Supreme Court held that it was not intended to 
abolish distinctions based on color and pointed to the 
“ most common instance”  of separation in schools. It 
said, at page 544 :

“ The object of the amendment was undoubtedly 
to enforce the absolute equality of the two races be­
fore the law, but in the nature of things it could not 
have been intended to abolish distinctions based upon 
color, or to enforce social, as distinguished from polit­
ical equality, or a commingling of the two races upon 
terms unsatisfactory to either. Laws permitting, 
and even requiring their separation in places where 
they are liable to be brought into contact do not nec­
essarily imply the inferiority of either race to the 
other, and have been generally, if not universally, 
recognized as within the competency of the state 
legislatures in the exercise of their police power. 
The most common instance of this is connected with



32

the establishment of separate schools for white and 
colored children, which have been held to be a valid 
exercise of the legislative power even by courts of 
states where the political rights of the colored race 
have been longest and most earnestly enforced.”  
(Italics supplied).

Commenting upon the Plessy case, Freund in his work 
on the Police Power, Sec. 699c, says

“ The following seems to be the strongest argu­
ment in favor of the legality of compulsory separa­
tion: it is legitimate for transportation companies 
to provide separate accommodations for the two 
races, just as it may provide ladies’ waiting rooms 
or cars for smokers, as conducive to the comfort 
of the parties thus separately accommodated. Trans­
portation companies may be subjected to public con­
trol in the interest of public convenience and com­
fort, and if separate accommodation is generally de­
manded, and not unreasonably burdensome it may 
be compelled by law. It then follows also that the 
failure to provide it or the failure to maintain it 
on the part of the railroad company, may be visited 
with penalties, and a passenger who intrudes him­
self into a compartment in which he is not wanted 
may likewise be punished. The facts in Plessy vs. 
Ferguson did not call for more than a recognition of 
these principles.”

Also see Article 27, Section 365 of the Code, which for­
bids intermarriage of white and colored persons in Mary­
land. And also Article 27, Section 415.

(b) In private and public educational institutions, at 
scholastic, collegiate and professional levels.

It is a matter of general knowledge that there is no 
mixture of the races in educational institutions in the 
State of Maryland. As to private institutions the case of



33

Clark vs. Maryland Institute, 87 Md. 643, exemplifies the 
policy of this State on the question.

Public Schools.
In public education, the State has erected a dual sys­

tem giving practically identical instruction to each race.

In 1872 by Chapter 377, sub-chapter 18 (now codified 
as Section 200 of Article 77 of the Code of Public Gen­
eral Laws 1924 Edition), the Legislature of Maryland 
established and provided a system of separate public 
schools for the exclusive use of the colored children of 
the State. This Section of the Code reads as follows:

“ 200. It shall be the duty of the county board of 
education to establish one or more public schools in 
each election district for all colored youths, between 
six and twenty years of age, to which admission 
shall be free, and which shall be kept open not less 
than one hundred and sixty (160) actual school days 
or eight months in each year; provided, that the col­
ored population of any such district shall, in the 
judgment of the county board of education, warrant 
the establishment of such a school or schools.”

Furthering this policy of separate education, our Leg­
islature has provided for the establishment of colored 
industrial schools in each county of the State where there 
is need of one, in which the colored youths of the State 
are given instruction in domestic science and the indus­
trial arts. (Code, article 77, section 211).

The State also provides a State Normal School for 
the instruction and practice of colored teachers in the 
science of education. (Code, Article 77, Section 256).

As to the character of the public education furnished 
the colored children in public schools of the State, Doug­



34

las High School, an all-Negro institution, is reputed to 
be as good as any in Baltimore City (R. 101); whereas 
in the county schools the colored children study the same 
curriculum and the facilities of both races are substan­
tially the same. (R. 87-100).

College Education.

At college levels the demand for education by the ne­
gro population of the State is much less1, but the State 
has met this demand insofar as it exists by the creation 
of an “ eastern branch”  of the University of Maryland, 
known as Princess Anne Academy and situated at Prin­
cess Anne, Somerset County. This institution is devoted 
exclusively to the higher education of colored boys and 
girls of the State and has a rating of a junior college. 
(R. 51).

While this college has in the past accommodated more 
than one hundred students there are at the present time 
only thirty-three students at the school. Thus the supply 
is greater than the demand for this type of education, 
which is largely agriculture and home economics.

For those negro students who wish a four year liberal 
arts college, the State annually appropriates a sum of 
money to Morgan College (R. 105).

Post-Graduate Education.

Up to the present time there has been no demand for 
professional or postgraduate education. As far as the law 
school is concerned, there have been but nine negro ap­
plicants for admission for the years 1933, 1934 and 1935 
and before that there were none (R. 107).



35

It is a settled policy of the University not to accept 
negroes except at its eastern branch at Princess Anne, 
as shown by the minutes of the Board of Regents (R. 60- 
61).

2. Separation o f  the Races in Educational Institutions Has Been 
Upheld by  the Highest Authority.

There is no doubt of the power of a State to segregate 
the races in schools.

Gong Lum vs. Rice, Supra; 11 Corpus Juris, 806 (Civil 
Rights, Section 11) and cases there cited.

In the case of Wall vs. Oyster, 31 Appeals of D. C. 180 
(1910) a federal court held that “ Congress may consti­
tutionally provide for the separation of white and col­
ored children in the public schools of the District of Co­
lumbia. ’ ’

In this State there is statutory authority for separation.

In Maryland we have not only a public policy of sepa­
ration of the races in educational institutions but statutes 
authorizing and requiring it. At professional levels the 
Acts of 1933, Chapter 234 and the Acts of 1935, Chapter 
577 clearly point out the State policy in this respect.

Even without statutory authority to separate the races 
it appears that the State, or any corporation organized 
under the State laws, has a right to separate the races. 
As this Court said in Hart vs. State, supra, speaking of 
segregation in railway coaches:

“ It seems to be well settled that a common carrier 
has the power, in the absence of statutory provision,



36

to adopt regulations providing separate accommoda­
tions for white and colored passengers, provided, of 
course, no discrimination is made.”  Page 601.

If common carriers may segregate the races without 
statutory authority it follows that private schools and 
public institutions operating under charter from the 
State may do likewise.

One of the earliest cases on segregation of white and 
colored children in schools is Roberts vs. Boston, 5 Cush. 
198 (1849). A colored girl brought action against the 
school authorities of Boston because they excluded her 
from a white school and required her to attend a school 
maintained exclusively for colored children. The State 
of Massachusetts had neither authorized nor forbidden 
race segregation in the schools, but there was a State 
constitutional injunction of equal protection, the same as 
the Fourteenth Amendment (see Gong Lum vs. Rice, 
supra at page 87). It had been the public policy of Bos­
ton to segregate the races for at least fifty years. It was 
held by the Supreme Court of Massachusetts that the 
school board had the power to segregate the races with­
out specific statutory authority upon the subject.

“ The great principle,”  said Chief Justice Shaw, 
“ advanced by the learned and eloquent advocate of 
the plaintiff (Mr. Charles Sumner) is, that by the 
Constitution and laws of Massachusetts, all persons 
without distinction of age or sex, birth or color, 
origin or condition, are equal before the law. * * * 
But, when this great principle comes to be applied 
to the actual and various conditions of persons in 
society, it will not warrant the assertion that men 
and women are legally clothed with the same civil 
and political powers, and that children and adults 
are legally to have the same functions and be sub­



37

ject to the same treatment; but only that the rights 
of all, as they are settled and regulated by law, are 
equally entitled to the paternal consideration and 
protection of the law for their maintenance and se­
curity. ’ ’

It was held that the powers of the school board extended 
to the establishment of separate schools for children of 
difference ages, sexes, and colors, and that they might 
also establish special schools for poor and neglected 
children, who have become too old to attend the primary 
school, and yet have not acquired the rudiments of learn­
ing, to enable them to enter the ordinary schools.

The cases heretofore cited have concerned: schools. One 
of the few college cases we have found is Berea College 
vs. Kentucky, 211 U. S. 45 (1908)—affirming 123 Ky. 209, 
94 S. W. 623. In this case the State of Kentucky passed a 
law in 1904 prohibiting the teaching of white and negro 
pupils in the same institution. It was held that in this 
case the State statute, when applied to a corporation as 
to which the State has reserved the power to alter, amend 
or repeal its charter, does not deny due process of law 
or otherwise violate the Federal constitution.

Thus it is clear that separation of the races is not pro­
hibited by the Fourteenth Amendment. While some cases 
from other states have held that, in order to justify sepa­
ration, substantially equal facilities must be granted each 
race, it should be pointed out that neither the Supreme 
Court of the United States nor this Court has imposed 
the test of “ substantial equality” .

The segregation of the races, by statute or otherwise, 
long has been recognized by this Court. As was said by 
Judge Sloan, speaking for the Court in Lee vs. State, 
164 Md. 550, at 553:



38

“ Wliite and colored alike are entitled to the equal 
protection of the laws, yet states have not been de­
nied the right to pass and enforce many segregation 
statutes. Railways and other means of transporta­
tion have been required by states, and lawfully, to 
provide separate compartments for whites and col­
ored. Innkeepers, in the conduct of their business, 
are not required to throw their houses open to whom­
soever chooses to be their guests. Hall v. De Guir, 
95 U. S. 485, 24 L. ed. 547, 553; Chiles v. G. & 0. R. 
Go., 218 U. S. 71, 30 S. Ct. 667, 54 L. ed. 936. If the 
defendant’s contention is sound or logical, then so 
long as this State has separate schools' for white 
and colored children, he could not be brought to trial, 
for nowhere is the separation more marked than 
there. Yet it has been frequently held that separate 
schools do not violate the provisions of the Four­
teenth Amendment. Gumming v. Board of Educa­
tion of Richmond County, 175 U. S. 528, 20 S. Ct. 197, 
44 L. ed. 262, and note. In all of the cases the right 
to make such regulations in public places and institu­
tions is recognized, provided equal advantages and 
comforts are afforded both races, and there is no 
suggestion here that this has not been done. ’ ’

3. This State A ffords Its C olored Citizens Substantially Equal 
Facilities fo r  Public Education.

(a) It has a dual and practically identical system of 
secondary education for the two races.

As pointed out above, this State maintains a dual 
system of public education in the lower schools, sub­
stantially equal and in most respects identical. Huffing- 
ton, (R. 93; 87-100); Cook (R. 102). It not only fur­
nishes an adequate system of separate education for its 
colored youth but it provides substantially more than 
other Southern states.



39

Maryland spends more money on negro education per 
capita in the lower schools than any other Southern 
State. In the scholastic year 1929-30 Maryland spent 
$43.16 on each colored child enrolled in its schools. In 
other states the figure ranged from $5.45 in Mississippi 
to $34.25 in Oklahoma. No Southern state spends as 
much on its colored education as it does on its white but 
in Maryland the ratio is more favorable to the negro 
than in the other states.

See McCuistion’s “ Financing Schools in the South,”  
published in 1930 by State Directors of Educational Re­
search in the Southern States, 502 Cotton States Build­
ing, Nashville, Tenn.

In considering this publication it must be borne in 
mind that money spent is by no means an exact criterion 
of equality, since colored children get more for their 
school dollar than do whites. See testimony of Huffing- 
ton (R. 99) where it is stated that colored teachers’ sal­
aries are lower than whites but this does not affect the 
equality of education received. In like manner, colored 
schoolhouses ordinarily do not cost as much as those of 
white children, but this would not affect the quality of 
education received. The above figures are cited merely 
to show that Maryland spends more on colored education 
than any other Southern state.

(b) It affords substantially equal opportunities at 
collegiate levels at Princess Anne Academy, at Morgan 
College and by scholarships.

As pointed out above, Maryland maintains the Prin­
cess Anne Academy as the eastern branch of the Univer­
sity of Maryland. Here the enrollment at the present



40

time is only thirty-three students, although more than 
one hundred may be accommodated (E. 74). Graduates 
of this institution, which is a junior college, may go into 
the third or junior year of Morgan College in the State, 
or of other colleges out of the State. The educational ad­
vantages afforded are approximately the same as at 
other junior colleges. The State appropriation for Prin­
cess Anne is $15,000 a year; on the present basis of the 
student enrollment it is $468. per student (E. 67).

On the basis of money spent by the State on white and 
colored college work, the following comparisons gleaned 
from the testimony are pertinent (E. 67, 83, 84,105):

Colored
Morgan

Student
enrollment

State
appropriation

Amt. 
spent per 
Student 
enrolled

1934-35 600 $23,400. $39.
1935-36

Princess
Anne

600 $35,000. $58.

1934-35 
White 

Un. of Md.

33 $15,000. $468.

1934-35 3,600 $318,000. $88.
1935-36 3,600 $288,000. $80.

It will be noted from the above that the State appro­
priation for the year 1935-36 is greater than the preced­
ing year in the case of Morgan College, the colored in­
stitution, and less than the preceding year in the case of 
the University of Maryland, the white institution.



41

(c) At professional levels it affords no colored 
schools because heretofore there has been no sufficient 
demand therefor; but the scholarship system offers its 
negro citizens opportunities and advantages substan­
tially equal to those given its white citizens.

It is apparent at this early stage of the call for pro­
fessional education for negroes that there are not enough 
students to form separate professional schools for each 
group, even if there were money with which to finance 
them. There were only nine colored persons who applied 
for admission to the School of Law in the years 1933, 
1934 and 1935 and none before that (R. 108).

While preserving Maryland’s traditional policy of 
separation of the races, the State has met the demand of 
the negroes for higher education by establishing a sys­
tem of scholarships to institutions out of the State for 
the exclusive use and benefit of colored students. This 
scholarship policy was launched by the Legislature of 
1933, which provided that the Board of Regents of the 
University of Maryland might set apart a portion of the 
State appropriation for Princess Anne Academy and 
establish scholarships for negro students who might wish 
to take professional courses or other work not offered in 
Princess Anne but which were offered white students at 
the University of Maryland. Chapter 234, Acts of 1933.

No special appropriation was made by the Legislature 
to finance these scholarships and since the University 
budget was severely cut there was no practical benefit to 
the colored race from this Act (R. 34-36, 61-64). The 
case before us is not affected by this circumstance, how­
ever, since Petitioner applied for admissioner to the Law 
School for the year 1935-36.



42

The General Assembly at its regular session in 1935 
set up a new scholarship statute and appropriated the 
sum of $10,000. annually to be set aside for the higher 
education of negroes. This Act, after establishing a 
“ Maryland Commission on Higher Education of Ne­
groes,”  of which Judge Morris A. Soper was named 
chairman, provided:

“ Sec. 2. And Be It Further Enacted, That it 
shall be the duty of said Commission to administer 
the sum of Ten Thousand Dollars ($10,000) included 
in the Budget for the years 1935-36 and 1936-37 for 
scholarships to Negroes to attend college outside 
the State of Maryland, it being the main purpose of 
these scholarships to give the benefit of such col­
lege, medical, law, or other professional courses to 
the colored youth of the State who do not have facili­
ties in the state for such courses, but the said com­
mission may in its judgment award any of said 
scholarships to Morgan College. Each of said schol­
arships shall be of the value of not over Two Hun­
dred Dollars ($200). Each candidate awarded such 
scholarship must be a bona fide resident of Mary­
land, must maintain a satisfactory standard in de­
portment, scholarship and health after the award is 
made, and must meet all additional charges beyond 
the amount of the scholarship to enable him to pur­
sue his studies.”

Chapter 577, Acts of 1935.

This Act went into effect on June 1st, 1935. At the time 
of the trial below, on June 18th, 1935, three hundred and 
eighty colored persons had applied for application 
blanks for these scholarships and one hundred and thir­
teen completed applications had been turned in. There 
were twelve days left in which to file applications (R. 
111) .



43

Only sixteen of these completed applications were for 
graduate work; and, of these, only one was for law work 
(R. 109-110).

It will be noted that from the scholarship Act above 
quoted that the maximum available for any one student 
is $200 and that the scholarship covers tuition only. Since 
it is the policy of the scholarship commission to divide 
the appropriation about equally between undergraduate 
applicants and graduate applicants (R. 112-113), it will 
be seen that there will be at least twenty-five scholar­
ships for graduate study (R. 112).

As only sixteen had applied for graduate scholarships, 
with but twelve days to go, it is a fair inference that 
there were enough scholarships to gratify all graduate 
or professional demands for the current year.

The petitioner in this case would have been eligible 
for one of these scholarships if he had applied (R. 113); 
and since he did not apply, he cannot be heard to deny 
the adequacy of the scholarship provision, assuming that 
he can be required to accept a fair substitute for con­
solidated instruction.

Howard University, in the City of Washington, main­
tains the nearest negro law school to Baltimore. There 
the tuition is $135.00 per year compared to $203.00 
in the day school of the University of Maryland Law 
School (R. 34).

In effect the State, by paying petitioner’s tuition at 
another school, relieves him from the payment of the 
$203.00 he would have to pay as tuition here, which sum 
he can apply to his transportation to Howard Law School 
or some other school of his choice.



44

A number of authorities have held that where the 
State furnishes or pays for transportation of colored 
persons to and from a school which is farther away from 
their homes than a white school, there is no discrimi­
nation or inequality.

In Wright vs. Board of Education, 129 Kan. 852, 284 
Pac. 363 (1930) an injunction was sought to prevent the 
school board from removing the Wright girl from a 
white school to a colored school twenty blocks farther 
away. The State agreed to furnish transportation. In 
holding that there was no inequality here, the Court 
said:

“ Plaintiff lives within a few blocks of Randolph 
School (white) and it is convenient for her to at­
tend school there. Buchanan school (colored) is 
some twenty blocks from plaintiff’s residence and 
to attend school there would require her to cross 
numerous intersections, where there is much auto­
mobile traffic, in going to and from school. No con­
tention is made that the Buchanan school is not as 
good a school and as well equipped in every way as , 
is the Randolph school. The sole contention made 
by appellant here is that defendant’s order that 
plaintiff attend school at the Buchanan school is 
unreasonable in view of distance she would have 
to go and the street intersections she would be com­
pelled to cross. * * * This contention is taken out of 
the case when we examine the pleadings, for plaintiff 
alleged that defendant furnishes transportation by 
automobile bus for plaintiff to and from the Buchan­
an school without expense to her or to her parents, 
and the answer of defendant admitted that it does 
so. There is no contention that this transportation 
is not adequate, appropriate or sufficient.”

In Riecks vs. Banbury, 257 N. W. 546, 219 Iowa— 
(1934) it was held that, under a statute, a school may



45

provide transportation or may make a money allowance 
to parents or children living two miles from the school.

In Lehew vs. Brummell, 103 Mo. 546 (1890), the ques­
tion was whether a statute of segregation of the races 
in schools was unconstitutional because, in the individ­
ual case, certain colored children had to go three and 
one-half miles to reach a colored school whereas no white 
child lived farther away from the white school than 
two miles. Upon this question the Court said, at page 
552:

“ It is true Brummell’s children must go three and 
one-half miles to reach a colored school, while no 
white child in district is required to gô  further than 
two miles. The distance which these children must 
go to reach a colored school is a matter of incon­
venience to them, but it is an inconvenience which 
must arise in any school system. The law does not 
undertake to establish a school within a given dis­
tance of anyone, white or black. The inequality in 
distances to be travelled by the children of differ­
ent families is but an incident to any classification 
and furnishes no substantial ground of complaint” .

To its negro citizens who desire to take up law work, 
Maryland says substantially this: “ under our policy of 
separate schools for both races it is permissible and 
proper for the University of Maryland Law School to 
deny your admittance. If you were admitted you would 
have to pay the tuition fee of $203. a year. We cannot 
yet give you a separate law school in the State: there 
is no sufficient demand for it, nor sufficient money avail­
able to start it. However, to even things up, we will 
pay your tuition at some law school of your own selec­
tion out of the State. You will save the $203. tuition 
fee at Maryland and you may apply this money to your 
maintenance at the law school of your choice.”



46

It cannot be too strongly urged that by this schol­
arship plan the colored youth of the State receive more 
real and practical benefit than if there were a law school 
for them in connection with the University of Maryland.

Obviously Petitioner would have no complaint what­
soever if there were maintained a law school at Prin­
cess Anne Academy; yet he, a resident of Baltimore City, 
would have to pay his maintenance charges, travelling 
expenses and tuition. He could not commute daily, since 
Princess Anne is three or four times farther from Bal­
timore than is Washington.

From Baltimore he could commute daily to Washing­
ton if he chose to go to Howard Law School; and it is 
stated as a matter of common knowledge that the $203. 
tuition fee he would save by accepting a scholarship is 
sufficient to cover his commutation charges. Or he could 
live in Washington, if he preferred not to commute, and 
the $203. thus saved would go far towards his mainte­
nance. In either event he would be better off financially 
than if he were required to go to Princess Anne; and bet­
ter off than a white boy from the Eastern Shore who 
comes to Baltimore to study law. The white boy must 
provide his own maintenance in Baltimore and in addi­
tion pay the tuition.

If a negro lives in Prince George’s County where the 
colored population is densest (B. 90), he could com­
mute to Washington at a negligible cost and save con­
siderable money by the scholarship arrangement. If 
a negro lives on the Eastern Shore or in Southern Mary­
land, he would be just as close to Washington as to Bal­
timore and could live as reasonably in either City. And 
he would save the $203. tuition at Maryland.



4 7

Certainly a great advantage of the scholarship system 
is that the colored boy may choose his own school and 
no matter where he goes, whether it is Harvard, Howard, 
Columbia or some other school, the State of Maryland 
will pay his tuition charges.

It is earnestly suggested that these scholarships are 
eminently more practicable and more desirable from 
the point of view of the colored race itself than would 
be a separate law school established in the State.

No Demand for Negro Professional Study.

We urge upon this Court consideration of the fact 
that there has been no demand by the negro citizens of 
this State for the establishment of separate professional 
schools; and in the absence of a sufficient demand to jus­
tify the expenditure of the money involved, courts will 
not require such schools established.

In Trustees vs. Board of Education, 115 Miss. 117 
(1917) it was held that trustees need not establish a 
separate school for colored persons if their numbers did 
not warrant it, even if there is no other school provided 
for them.

Also see
Black vs. Lenderman, 156 Ark. 476 (1923).

It has not been shown in this ease that there is any 
demand for professional schools for negroes in this 
State. If the State were required to establish separate 
professional schools for negroes there is no doubt but 
that they would be far from satisfactory. A school set 
up for half a dozen persons either would be entirely in­
adequate to their needs or would require an appropri­



48

ation per student far in excess of the appropriation by 
the State for white professional students. Unlike an 
elementary school, a professional school requires ex­
pensive equipment: a law school requires an elaborate 
library, a pharmacy school requires a laboratory, a med­
ical school requires both library and laboratory and, in 
addition, hospital facilities. Such courses are entirely 
unsuited to treatment in small groups and the tendency 
is to concentrate professional studies in large centers 
with adequate equipment and facilities. Thus it is far 
better for Maryland’s negro citizens to be given schol­
arships to first-rate institutions out of the State than 
it would be for the State to supply separate schools in 
the State for the few colored persons who would pa­
tronize them.

Moreover, any allocation of funds to provide facili­
ties for professional study for negroes probably would 
be made out of funds now available for the education 
of white and colored children in the lower schools. Cer­
tainly the colored race would not profit by establishing 
separate professional schools if this were done at the 
expense of the great mass of colored children who are 
now being educated at public expense; and neither would 
the white race. The only ones to profit by such a diver­
sion of funds would be the few colored youths who would 
patronize such schools and these are better provided foi 
by our scholarship system.

It is submitted that the negro education system of 
this State has been expanded by State authorities as 
rapidly as money will permit and as rapidly as the 
demand has been made. It is only within the last few 
years that Princess Anne Academy has given college 
studies; before that it was a negro high school. As time



49

goes on this institution doubtless will be expanded into 
a full four year college. In like manner, as the demand 
increases, suitable provision for professional education 
for negroes doubtless will be made in the State. In the 
meantime scholarships have been provided for them to 
institutions out of the State so that the colored youth of 
Maryland may have all the advantages offered by other 
States and offered white persons in the State.

We strongly are of opinion, and so contend, that this 
scholarship system established by the General Assembly 
at the 1933 and 1935 sessions adequately provides for 
the needs of colored citizens for college and professional 
work at the present time. It is a reasonable inference 
that subsequent sessions of the Legislature will amplify 
and expand this system as experience dictates, to the 
end that Maryland may continue adequately to care for 
the needs of its colored citizens.

CONCLUSION.
This State always has enjoyed the most amicable rela­

tionship between its white and colored citizen. This re­
lationship has been characterized by the zealous safe­
guarding of the political and civil rights of the colored 
man. In every way open to it, the State has extended a 
fraternal hand to the Negro; in no way has this aid been 
more practically demonstrated than in public education.

At the time of the Emancipation it was generally con­
ceded that illiteracy was the greatest drawback to the 
colored man in his rise to a position of civil and political 
equality with whites guaranteed him by the war amend­
ments; and as far back as 1872 the General Assembly of 
Maryland provided for the establishment of one or more



50

public schools in each election district of the State for 
the education of colored youths between the ages of six 
and twenty years. This system has been continually ex­
panded during the intervening years and it is now gen­
erally considered a model for other Southern States.

It may be said, without any prejudice to the colored 
race as a class, that the problem of educators in this 
State has been to get colored children to attend the 
schools provided for them (R. 92) and not so much to 
meet a demand for expansion. It is asserted without 
fear of contradiction that the State authorities are just 
as much interested, if not more so, in expanding Negro 
educational facilities and advantages in Maryland, as are 
the leaders of the colored race itself. The need for trained 
leadership among colored citizens has been thought to 
demand college training. For those who are fitted to 
receive it, this demand has been met in two ways: by 
appropriations to Princess Anne Academy, a junior col­
lege, and Morgan College, a four year liberal arts insti­
tution; and by the founding of scholarships to institu­
tions out of the State.

There has never been any demand in this State for 
professional education for Negroes; and if there were, 
it is plain that the requirements of the race at school and 
college levels should come first. As appears in the testi­
mony concerning the applications for scholarships under 
this new scholarship Act of 1935, out of 380 application 
blanks requested by colored youths only sixteen were 
interested in graduate or professional work, and only 
one of these was interested in law (R. 109-110). In other 
words, twenty-five colored youths are interested in col­
lege scholarships to every one who is interested in pro­
fessional scholarships.



51

It is apparent that it would be absurd at this time to 
create separate professional schools for this small group, 
although conditions may change in the future and it may 
become less expensive and more beneficial to establish 
Negro medical and law schools in the State than to con­
tinue the scholarship system. This would be a great step 
forward, both for the colored race and for the State of 
Maryland, but at the present time it obviously is out of 
the question.

To allow petitioner to enter the University of Mary­
land Law School would be a departure from precedent 
for which there is no legislative or other authority. Pub­
lic education being purely a matter of State concern, the 
Federal Constitution does not affect petitioner’s rights 
therein; and if it did, there is no prejudice or inequality 
by which he could invoke the aid of the Fourteenth 
Amendment. In the absence of statute compelling mix­
ture of the races at professional levels, it is submitted 
that the Regents are entirely within their rights in cleav­
ing fast to Maryland’s traditional policy of separation—• 
a policy which for generations has proven most wise and 
beneficial to both races—and their adoption of this rule 
cannot be deemed an abuse of their discretion.

In closing we most strongly urge upon this Court that 
the case at bar is controlled by the decision of this Court 
in Clark vs. Maryland Institute, supra, where, in a situa­
tion closely parallel to the case at bar, it was held that 
the petitioner was not entitled to be received as a pupil 
and that there was no occasion for the application of the 
privilege clause of the Fourteenth Amendment. In both 
that case and this one the institution operated under a 
charter from the State; in both cases a substantial money 
grant was provided by a governmental agency.



52

For these reasons it is respectfully urged that peti­
tioner is not entitled to the writ of mandamus in this, 
case and the judgment of the lower Court should be
reversed.

HEEBEET E. O’CONOE,

Attorney General,

WM. L. HENDEESON,
Asst. Attorney General,

CHAELES T. LeVINESS, 3rd, 

Asst. Attorney General,

Attorneys for Appellants.



53

INDEX TO RECORD.

Answer of Respondents .......................
Application for Admission, opp. page.
Clerk’s Certificate .................................
Docket Entries ......................................
Exhibit No. 1 .............. ...........................
Exhibit No. 2 ..........................................
Exhibit No. 4 .......................... ...............
Exhibit No. 5 ..........................................
Exhibit No. 6 ...................... ... ...............
Exhibit No. 7 % ......................................
Exhibit No. 8 ............ .............................
Exhibit No. 9 ..........................................
Exhibit No. 10, opp. page.....................
Note of Lower Court...................... .....
Order of Lower Court ........................
Order of A ppeal....................................
Petition for Writ of Mandamus.........
Replication of Petitioner ....................
Testimony ..............................................
Writ of Mandamus................................

PAGE

...  17

... 9

... 115

... 29

...... 29

... 30

... 31

... 32

... 33

... 34

... 35

... 35

... 36

... 115

... 41

... 42

... 3

... 23
43-114 
... 41



i

4