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    1ST T H E

Stall's (Eirotit (Erntrt nf Kppmlz

B oaed of Trustees op the U niversity op 
South Carolina, Norman M. Smith, 
President of the University of South 
Carolina, Samuel P bince, Dean of the 
Law School and R. C. Needham, Regis-

For the Fourth Circuit

trar,

J ohn H. W righten,

vs.
Appellants,

Appellee.

No. 5667

BRIEF FOR APPELLEE

H arold R. B oulware, 
Columbia, S. C.,

E dward Dudley, 
T hurgood Marshall,

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

Attorneys for Appellee.
W . F. R obinson, 

Columbia, S. C.
Of Counsel.



PAGE
1Statement of Case

Statement of Facts__________________________________  2

Question Involved
Is the refusal to admit a qualified Negro to the Uni­
versity of South Carolina Law School on the basis 
of race a violation of the Fourteenth Amendment 
to the United State Constitution where said insti­
tution is the only place offering legal training by
the state ________________________________________  4

Conclusion___________________________________________ 11

Table of Cases.

Alston v. Norfolk School Board (C. C. A. 4th), 112 F.
(2d) 992 (1940) certiorari denied, 311 U. S. 693 
(1940) -----------------------------------------------------------------  9

Ex Parte Virginia, 100 U. S. 339 (1879)__________ _ 9
Meyer v. Nebraska, 262 U. S. 390 (1923)_______________ 10
Missouri ex rel. Caines v. Canada, 307 U. S. 337 

(1938) -------------------------------------------------------5, 7, 9,10,11
Pearson, et al. v. Murray, 169 Md. 478 (1936)______8,10,11
Yick Wo v. Hopkins, 118 U. S. 356 (1886)____________  9



IN' T H E

Inttefc States Ctrrmt (&nwt of Appeals
For the Fourth Circuit

Board oe Trustees of the University of 
South Carolina, Norman M. Smith , 
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants,
vs.

No. 5667

J ohn H. W righten,
Appellee.

BRIEF FOR APPELLEE

Statement of Case

On January 4, 1947, appellee, plaintiff below, filed in the 
District Court for the Eastern District of South Carolina 
a complaint against appellants, defendants below, for refus­
ing to admit him to the first-year class of the School of Law 
of the University of South Carolina (A-17).

Following a pre-trial conference held on May 15, 1947, 
the Court announced that the equitable issues involved 
would be tried first before the Court without a jury. The 
Court’s order on the pre-trial conference entered May 20, 
1947, establishes that an agreement had been reached be-



2

tween opposing parties that the broad question of the right 
of segregation and education according to races is not be­
fore the Court but that the issue here is whether the plain­
tiff-appellee is given law school facilities by the State of 
South Carolina comparable to those afforded white students 
(A-13).

Defendants-appellants appealed from the judgment of 
the United States District Court for the Eastern District 
of South Carolina entered on July 12, 1947, granting an 
injunction against appellants restraining them from exclud­
ing from admission to the Law School of the University 
of South Carolina plaintiff-appellee and any person or per­
sons by reason of race or color unless legal education on 
a complete equality and parity is offered and furnished 
to the appellee and other persons in like plight upon the 
same terms and conditions by some other institution estab­
lished, operated or maintained by the State of South Car­
olina.

It is the judgment from this trial in appellee’s favor 
that appellants now appeal.

Statement of Facts

Appellee, John H. Wrighten, is a Negro over the age 
of 21, a citizen and resident of the State of South Carolina 
and has all of the lawful qualifications necessary for admis­
sion to the Law School of the University of South Carolina 
(A-98). Wrighten made application for admission to the 
Law School of the University of South Calorina first on 
July 2, 1946 and again on August 17, 1946 but was refused 
admission by the officials in charge of the said Law School 
because of his race (A-98). He did not make application 
to State College where there was no law school in existence 
(A-98).



3

Under the Constitution and Laws of the State of South 
Carolina, the University, including its Law School, is main­
tained solely for persons of the white race (A-98). The 
appellants are the Board of Trustees of the University 
of South Carolina, Norman M. Smith, President of the 
University of South Carolina, Samuel Prince, Dean of the 
Law School, and R. C. Needham, Registrar of the same 
(A-98). The University of South Carolina (commonly 
called The University) is an institution maintained by the 
State for the purpose of providing higher education (in­
cluding the maintenance of the Law School) for qualified 
persons of the white race and its control is vested in the 
Board of Trustees named in accordance with the statute 
laws of the State (A-98). The Colored Normal, Industrial, 
Agricultural & Mechanical College of South Carolina (com­
monly called State College) is an institution maintained by 
the State for the higher education of Negroes and its con­
trol is vested in the Board of Trustees, which is independent 
of the Board of Trustees of the University. The Governor 
of South Carolina is an ex-officio member of both Boards 
(A-98-99).

The General Assembly of the State of South Carolina, 
in its annual Appropriation Act for the year 1945 authorized 
the establishment of the Law School at State College but 
left it to the discretion of the Trustees and President who 
considered the matter but did not establish such a school 
and the appropriation available for the same was used for 
other purposes (A-9.9). Similar action occurred in 1946. 
Similarly, the General Assembly of the State of South 
Carolina in its Appropriation Act for the year 1947, adopted 
after this case was filed, authorized the Board of Trustees 
of State College to establish and maintain a graduate law 
department and made an appropriation for that purpose 
(A-99).



4

The present action is brought in the nature of a class 
suit to determine whether defendants’ policy, custom and 
usage in denying plaintiff and other qualified Negroes ad­
mission to the Law School of the University of South 
Carolina pursuant to the Constitution and Laws of the 
State of South Carolina violates the equal protection clause 
of the Fourteenth Amendment.

Question Involved

Is the refusal to admit a qualified Negro to the Uni­
versity of South Carolina Law School on the basis of 
race a violation of the Fourteenth Amendment to the 
United States Constitution where said institution is the 
only place offering legal training by the state.

It is submitted that the only question before this Court 
at this time is whether or not, in the light of the facts in 
this case, appellants’ refusal to admit appellee into the 
University of South Carolina Law School in the absence 
of a showing that equal facilities were provided elsewhere 
within the State of South Carolina is a violation of the 
equal protection clause of the Fourteenth Amendment to the 
Constitution of the United States.

The President of State College at Orangeburg testi­
fied that there was no law school available which admitted 
Negroes in South Carolina prior to or at the time of the trial 
of this case (A-17). This fact has never been disputed by 
anyone. At the time of the trial o f this case the only law 
school maintained by the State of South Carolina was at the 
University of South Carolina. The only place appellee 
could obtain a legal education in South Carolina was at the 
University of South Carolina. He has been refused ad­
mission to this school solely because of his race or color.



5

Had he been white, there is no question that he would have 
been admitted.

Appellants contend that the segregation laws of South 
Carolina justify their refusal to admit Negro students. In 
doing so they completely ignore the decision of the United 
States Supreme Court in Missouri ex rel. Gaines v. Canada, 
305 U. S. 337, at page 349 (1938) on this question:

“ * * * The admissibility of laws separating the races 
in the enjoyment of privileges afforded by the State 
rests wholly upon the quality of the privileges which 
the laws give to the separated groups within the 
State. * * * ”

Appellants in their brief have raised the arguments 
concerning the duty of appellee to apply for admission to 
an imaginary law school at State College located at Orange­
burg, South Carolina. The lower Court’s order on pre-trial 
conference set the pattern and conduct in the trial of this 
case, it was stipulated as follows:

“ It was agreed that without any general admis­
sions and limited solely to the issues to be tried in 
this case the broad question of the right of segrega­
tion and education according to races is not before 
the Court but that the issue here is whether the plain­
tiff is given law school facilities by the State of South 
Carolina comparable with those afforded white stu­
dents; Provided of course that if it be shown that 
opportunities are given, the parties may go into the 
sufficiency and the quality of the same”  (A-13).

Whether or not appellants have complied with the re­
quirements of the Fourteenth Amendment as presented in 
the order of the lower Court (A-100-101), in alternative 
manner is another question that may come before this 
Court at some future time. The following testimony by 
Miller F. Whittaker, President of State College at Orange­



6

burg, 8. C. (A-17), conclusively shows that there was no law 
school within the State of South Carolina prior to or at the 
time of the trial of this action. In answer to questions con­
cerning State College, Mr. Whittaker gave the following 
testimony:

“ Q. Do you have a law school there? A. No, no 
law school.

“ Q. As of June of the year 1946, did you have a 
law school there ? A. We did not.

“ Q. Did you have one as of January of this year? 
A. We did not.

“ Q. Do you have one now? A. We do not.
“ Q. Is there any law school operated by the State 

of South Carolina to which Negroes are at present 
admitted if you know? A. There is none as far as 
I know.

“ Q. Do you know of any other school or uni­
versity in the State of South Carolina for the educa­
tion of Negroes beyond the high school level other 
than the school that you are president of? A. There 
is none, no.

“ Q. So, at the present time there is no law school 
at your school? A. That is right.

“ Q. There is no setup at the present time in 
existence for the training of the Negro in the field of 
law at your institution? A. There is none.”

In spite of this testimony from the President of the only 
institution in South Carolina where Negroes were admitted 
to higher education, appellants insist that the language of 
the 1945 and 1946 Appropriation Act (44 Stat. 401, 1605, 
A-106), “ authorized”  the establishment of a law school at 
State and that this language must be construed as manda­
tory in the light of South Carolina law requiring segrega­



7

tion. (These statutes are set out in full in Appellants’ Ap­
pendix, pp. 92-94.) Provisions similar to those in the Acts 
of 1945 and 1946 were on the statute books of Missouri at 
the time the suit against the University of Missouri arose 
in the case of Missouri ex rel. Gaines v. Canada, supra. 
The Supreme Court of the United States stated as to this 
defense in that case:

# * it appears that the policy of establishing the 
law school at Lincoln University has not yet ripened 
into an actual establishment and it cannot be said that 
a mere declaration of purpose still unfulfilled is 
enough. The provision for legal education at Lin­
coln at present is entirely lacking. Respondents’ 
counsel urge that if on the date when petitioner ap­
plied for education to the University of Missouri he 
had instead applied to the curators of Lincoln Uni­
versity, it would have been their duty to establish a 
law school; and that this agent of the state, to which 
he should have applied, was specifically charged with 
the mandatory duty to furnish him what he seeks. 
We do not read the opinion of the Supreme Court as 
construing the state statute to impose such a manda­
tory duty as the argument seems to assert * *

Even assuming that the appropriation by the State of 
South Carolina to State College for all graduate work, in­
cluding law, medicine, pharmacy and out-of-state scholar­
ships (A-36) will be available to set up a future law school 
for Negroes, we must rely upon the testimony of President 
Whittaker in giving his opinion as to the physical possibil­
ity of accomplishing such an act.

“ Q. President Whittaker, I want your opinion 
as to whether or not in your mind, bearing in mind 
the difficulty in getting law books, the lack of an 
adequate building space, the fact that you do not 
have a faculty member yet, nor a dean, nor a librar­
ian, do you in your own mind believe that you can



8

set up a law school by September that would be the 
full and complete equal of the law school at the Uni­
versity of South Carolina? A. No, I do not think 
so. That is my opinion”  (A-37).

In the case of Pearson, et al. v. Murray,1 which was a 
mandamus action to compel the admission of a qualified 
Negro to the University of Maryland Law School, the 
Court of Appeals of Maryland in granting the requested 
relief stated:

“ The method of furnishing the equal facilities 
required is at the choice of the State now or at any 
future time. At present it is maintaining only the 
one law school . . .  no separate school for colored 
students has been decided upon and only an inade­
quate substitute has been provided. Compliance 
with the Constitution cannot be deferred at the will of 
the state. Whatever system it adopts for legal educa­
tion now must furnish equality of treatment now. . . . 
in Maryland now the equal treatment can be fur­
nished only in the one existing law school, the peti­
tioner, in our opinion, must be admitted there.”

The Court then concluded:

“  . . . The state has undertaken the function of 
education in the law but has omitted the students of 
one race from the only adequate provision made for 
it and omitted them solely because of their color. 
If those students are to be offered equal treatment 
. . . they must, at present, be admitted to the one 
school provided. And as the officers and Regents 
are the agents of the state intrusted with the con­
duct of the school, it follows that they must admit 
. . . there is identity in principle and agent for the 
application of the constitutional requirement.”

1 169 Md. 478 (1936).



9

The Gaines case has provided a clear principle for the 
decision of the basic rights of the parties in this case. In 
that case, Gaines, a Negro citizen and resident of the State 
of Missouri, attempted to obtain entrance to the Law 
School of Lie University of Missouri, which was maintained 
solely for whites. There was another institution (Lincoln 
University) maintained by the State of Missouri for the 
higher education of Negroes. It had no law school, though 
there had been appropriations and authorizations to its 
officials to establish a law school when deemed advisable. 
After denial of the relief in the state court and upon ap­
peal to the United States Supreme Court, that Court held 
in unmistakable terms that a Negro was entitled to the 
same educational facilities as a white person within the 
state.

It is our contention, therefore, that the Gaines case, 
supra, sets forth the law which is controlling in this case. 
This Court is asked by appellees to merely sustain the prin­
ciple, at this time, that the Fourteenth Amendment to the 
United States Constitution requires the State of South 
Carolina in furnishing legal education to qualified white 
students at the University of South Carolina to admit 
qualified Negroes into the University of South Carolina 
in the absence of equal facilities elsewhere in the state.

A  long list of cases has sustained the principle that no 
state shall deny to any of its citizens the equal protection 
of the laws on account of race or color.2 3 *

When appellee applied to enter the law school at the 
University of South Carolina it was the only law school

2 E x Parte Virginia, 100 U. S. 339 (1879) ; Yick W o  v. Hopkins
Ug S' 356 ( 1886) 5 Alston v. Norfolk School Board, 112 F. (2d)

992 (C. C. A. 4th, 1940) Certiorari denied 311 U. S. 693 (1940) •
Missouri ex  rel. Gaines v. Canada, supra. ’



1 0

maintained and operated by the state for the legal education 
of its citizens (A-17).

Appellants admittedly denied him the right to attend 
solely on account of his race and color (A-98).

The equal protection of the laws is denied where the 
state maintains a law school from which Negro students, 
otherwise qualified, are excluded because of their race, and 
at the same time does not provide a law school within the 
state which Negroes may attend.3 Missouri ex rel. Gaines 
v. Canada, supra; Pearson, et al. v. Murray, supra.

The fact that there is a limited demand within the state 
for the legal education of Negroes does not excuse this 
discrimination. Missouri ex rel. Gaines v. Canada, supra; 
Pearson, et al. v. Murray, supra. As an individual this ap­
pellee is entitled to the equal protection of the laws, and the 
state is bound to furnish him within its borders facilities for 
legal education equal to those which the state affords for 
persons of the white race, whether or not other Negroes 
seek the same opportunity Missouri ex rel. Gaines v. 
Canada, supra. This discrimination is not excused because

3 Appellee is also deprived of his liberty without due process of 
law through this denial of equal protection by the State of South 
Carolina as the right “ to acquire useful knowledge” is one of those 
liberties long recognized at common law as essential to the orderly 
pursuit o f happiness by free men.

As stated by the U. S. Supreme Court in M eyer v. Nebraska, 262 
U. S. 390, 399: “ ‘No state shall * * * deprive any person of 
life, liberty, or property, without due process of law.’ While this 
Court has not attempted to define with exactness the liberty thus 
guaranteed, the term has received much consideration, and some of 
the included things have been definitely stated. Without doubt, it 
denotes not merely freedom from bodily restraint, but also the right 
of the individual to contract, to engage in any of the common occu­
pations of life, to acquire useful knowledge, to marry, establish a 
home and bring up children, to worship God according to the dictates 
of his own conscience, and, generally, to enjoy those privileges long 
recognized at common law as essential to the orderly pursuit of happi­
ness of free men.”  (Citing cases.)



1 1

it may be termed temporary pending the establishment of 
a law school for Negroes within the state Missouri ex rel. 
Gaines v. Canada, supra; Pearson, et al. v. Murray, 
supra.

Conclusion

In considering this question, appellee respectfully re­
quests this Court to examine carefully the violation of the 
equal protection clause of the Fourteenth Amendment by 
appellants in refusing to accept appellee into the only law 
school maintained by the State of South Carolina solely 
because of appellee’s race and color. The right violated is 
an individual one which the agents of the State of South 
Carolina acting under color of law within the State of South 
Carolina cannot justify. Equal protection and due process 
cannot be satisfied by continuously pointing to imaginary 
equality. As a matter of fact, the lower Court could have 
issued a permanent injunction at the time of the hearing 
admitting appellee into the only law school in the State of 
South Carolina.

It is respectfully submitted that the appeal be dismissed.

Respectfully submitted,

Harold R. B oulware,
Columbia, S. C.,

T hurgood Marshall,
E dward R. D udley,

20 West 40th Street, 
New York City,

Attorneys for Appellees.



«̂ |gĝ >212 [6276]

L aw yers P ress, I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300