Parker v. Frankin Brief for Appellee
Public Court Documents
January 1, 1964

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Brief Collection, LDF Court Filings. Parker v. Frankin Brief for Appellee, 1964. 6771fd93-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2d8ee86c-7b20-4b8b-92b3-9b27ca24b013/parker-v-frankin-brief-for-appellee. Accessed July 03, 2025.
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In the luiini ^tatrii (knurl nf Appeals F or the F ifth Circuit No. 21,070 W illiam V. Parker, Dean, Graduate School of Auburn University, Appellant, H arold A. F ranklin and the United States of A merica, Appellees. on appeal from the united states district court FOR THE MIDDLE DISTRICT OF ALABAMA BRIEF FOR APPELLEE Fred D. Gray 34 North Perry Street Montgomery 4, Alabama Jack Greenberg Constance B aker Motley James M. Nabrit, III 10 Columbus Circle New York 19, New York Attorneys for Appellee L eroy D. Clark Of Counsel In the Itttteft #!a!?s tour! nf Appals F oe the F ifth Cikcttit No. 21,070 W illiam V. Parker, Dean, Graduate School of Auburn University, Appellant, -v.- H arold A. F ranklin and the United States of A merica, Appellees. on a p pe a l fr o m t h e u n it e d states d istric t court FOR THE MIDDLE DISTRICT OF AL A B AMA BRIEF FOR APPELLEE Statement of the Case This is an appeal from an order of the District Court for the Middle District of Alabama of November 5, 1963, enjoining William V. Parker, Dean of the Graduate School of Auburn University, from denying admission of Harold Franklin and other Negro applicants to Auburn University on the basis of race and color. On August 26, 1963, Harold A. Franklin, a Negro citizen of the State of Alabama, filed an action against William V. Parker, Dean of the Graduate School of Auburn University and Charles W. Edwards, Registrar of Auburn University, 2 seeking admission to the Graduate School. Jurisdiction was invoked pursuant to 28 U. S. C. 1343(3) and 42 U. S. C. 1981, 1983. The suit was brought as a class action under Rule 23(a)(3), Federal Rules of Civil Procedure. The complaint alleged that plaintiff Franklin’s applica tion for admission to Auburn University had been denied because his undergraduate degree had been obtained from Alabama State College, an unaccredited institution operated by the State of Alabama exclusively for Negroes, in viola tion of his rights under the Fourteenth Amendment to the United States Constitution. Plaintiff sought to enjoin de fendants from, among other things, rejecting Negro appli cants who apply to Graduate School at Auburn University because of their attendance at non-accredited colleges oper ated by the State of Alabama, where attendance at un accredited state institutions has been required because of their race, and from continuing to pursue the policy, prac tice, custom and usage of limiting admission to Auburn University to white persons (R. 2, 10). Plaintiff also filed a motion for preliminary injunction to enjoin the defen dants, their agents, servants, employees, successors, and all persons in active concert with them from refusing to (a) admit him to the Auburn Graduate School; (b) expedi tiously process the applications of Negroes on the same terms and conditions as white applicants; (c) admit Negroes solely on the basis of race and color (R. 17-19). A hearing on the motion for preliminary injunction was set for Sep tember 19, 1963 (R. 20). September 9,1963, the Court designated the United States a party (R. 20-22). September 17, 1963, defendants filed an answer and affidavits in opposition to plaintiff’s motion for preliminary injunction (R. 22-32). In their answer de fendants denied that the suit was a proper class action or that plaintiff had been denied admission because of race. 3 Defendant Edwards, Registrar of Auburn University, was dismissed from the action (R. 33-34). November 5, 1963, the District Court granted plaintiff’s motion for preliminary injunction, and made the following findings of fact: (a) that appellee Franklin was a permanent resident of Talladega, Alabama and resided in Montgomery, Alabama; (b) that he received a Bachelor of Arts degree from Alabama State College in May, 1962; (c) that if his record at Alabama State College met the requirements of the Graduate School at Auburn University he was eligible for admission to Au burn; (d) that Negroes have been graduated from either of two State Colleges established and maintained by the State of Alabama exclusively for Negroes; (e) that both of these schools were under the express management and con trol of the State Board of Education; (f) that both are designated by statute as schools for Negroes, and these two colleges are the only two state institutions of higher learning for Negroes in Alabama though other state in stitutions of higher learning were maintained exclusively for white students; (g) that in 1956, Alabama State College was given probationary accreditation by the Southern As sociation of Colleges and Schools; (h) that in 1961, ac creditation was withdrawn from both Alabama State Col lege and Alabama A. & M. College, and at that time Franklin was graduated (and at present) neither school was ac credited; (i) that during the same period, all the Alabama colleges and universities limited to white persons were fully accredited; and (j) that both the Alabama State Super intendent and Board of Education were aware of the defi ciencies that caused first the probationary status and sub sequent disaccreditation of the Negro institution. The Court held that the suit was a proper class action and stated: . . . the State of Alabama has denied to Harold A. Franklin, a Negro—solely because he is a Negro—the opportunity to receive an undergraduate education at 4 an accredited State college or university; at the same time, the State of Alabama afforded adequate oppor tunity to its white citizens to receive an undergraduate education at accredited State institutions. Now, after having done this, the State of Alabama, acting through its State operated and maintained institution Auburn University, insists that graduate education at that in stitution shall be open only to students who are grad uates of accredited colleges or universities. On its face, and standing alone, the requirement of Auburn Uni versity concerning graduation from an accredited in stitution as prerequisite to being admitted to Graduate School is unobjectionable and a reasonable rule for a college or university to adopt. However, the effect of this rule upon Harold A. Franklin—an Alabama Negro —and others in his class . . . is necessarily to preclude him from a postgraduate education at Auburn Uni versity solely because the State of Alabama discrim inated against him in its undergraduate schools. Such racial discrimination on the part of the State of Ala bama amounts to a clear denial of the equal protection of the laws. (R. 40-41) The court ordered Franklin admitted to the Graduate School of Auburn University in January, 1964, and en joined defendants from rejecting other qualified Negro applicants. Defendants filed notice of appeal November 13, 1963. A motion for order suspending preliminary injunc tion pending appeal was denied November 20, 1963. 5 A R G U M E N T The Court Below Properly Held That Appellee Was Denied Admission to Auburn University on a Racially Discriminatory Basis in Violation of the Fourteenth Amendment. The facts of this case are plain: Harold Franklin, a Negro, applied for admission to the Graduate School of Auburn University. Dean Parker rejected the application on the sole ground that Franklin had not graduated from an accredited college. At the time of Franklin’s applica tion, the State of Alabama maintained eight institutions for undergraduate training of which two were limited by stat ute to Negro students. (See: Code of Ala., Tit. 52, §§438, 441, 452, 454, 455.) Neither of the Negro institutions were accredited through the admitted fault of the State of Ala bama (R. 149).1 All six white institutions were accredited. The court below found that Franklin had been excluded solely because of race. Its finding was clearly supported by the facts and the evidence. This Court should not set aside its finding unless clearly erroneous, 52(a), Federal Rules of Civil Procedure. The issue before this Court is equally plain: Can the State of Alabama require Negroes seeking admission to State operated graduate schools to hold degrees from ac credited undergraduate institutions while limiting Negroes’ attendance to nonaccredited undergraduate institutions! The lower court correctly held not. 1 Alabama State College was accredited from December 1956 until December 1961. Franklin entered the college in September 1958 and graduated May 1962. He thus had years of accredited education. 6 On its face, the requirement that applicants for graduate school present a degree from an accredited college is rea sonable and comports with approved educational standards. However, in view of the State of Alabama’s enforced policy and practice of segregation which has limited attendance of Negro students to two nonaccredited state institutions, the requirement is patently discriminatory and deprives Negro applicants of equal protection of law.2 As the State of Alabama provides graduate training, it must do so with out discrimination. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938). In Meredith v. Fair, 298 F. 2d 696 (5th Cir. 1962), this Court held that the University of Mississippi could not require Negro applicants to furnish alumni certificates where Negroes had never been permitted to attend and graduate from that University. See also, Hunt v. Arnold, 172 F. Supp. 849 (M. D. G-a. 1959) (alumni certificate re quirement for Negro applicants held unconstitutional at Georgia State College); United States v. Manning, 205 F. Supp. 172 (W. D. La. 1962); and United States v. Ward, 222 F. Supp. 617 (W. D. La. 1963) (prohibiting voting registrars from refusing to register Negroes because they could not get two registered voters to attest to their iden tity where there were no Negro voters in the county). Similarly, this Court upheld the decision of a District Court holding a Louisiana statute requiring a certificate 2 While desegregation of Alabama public universities was or dered in Lucy v. Adams, 134 F. Supp. 235 (1955), 228 F. 2d 619, cert. den. 351 U. S. 931, fierce resistance to desegregation remained as late as 1963. See Lucy v. Adams and Carroll v. Mate, 8 Race Rel. L. Rep. 452; McCorvey v. Lucy, No. 20,898, pending in this Court. See also, Presidential Proclamation No. 3542, June 11, 1963, 8 Race Rel. L. Rep. 455 where President Kennedy commanded the “ Governor of Alabama and all other persons . . . to cease and desist” from unlawful obstructions of justice. Governor Wallace was attempting to keep two Negro students from enrolling at the University of Alabama. 7 of good moral character for admission to state universities racially discriminatory where Negro high school principals were given certificates addressed only to Negro colleges. Ludley v. Board of Supervisors of Louisiana State Uni versity, 150 F. Snpp. 900 (E. D. La. 1957), affirmed 252 F. 2d 372 (5th Cir. 1958), cert, denied 358 U. S. 819 (1958). There the trial court stated the statute was “unconstitu tional for the reason that the obvious intent of the legis lature in passing the act was to discriminate against Negro citizens and thus to circumvent the equal protection clause of the Fourteenth Amendment,” 150 F. Supp. at 904. These holdings govern this case. Indeed, the discrimina tion in this case is even plainer than that in Meredith or Hunt. In those cases there was perhaps a remote possibility that a Negro might have been able to convince a few white alumni to furnish certificates. Here, applicants are abso lutely cut off by the State from obtaining graduate training by a eondition'created by the State. The condition here is almost identical with the “ Grandfather Clause” struck down in Guinn v. United States, 238 IT. S. 347 (1915), where the State of Oklahoma required a preregistration literacy test of everyone except those qualified to vote in 1866 oi who had lineal descendants who were qualified to vote at that time. Negroes, deprived of the right to vote in 1866, were burdened with a condition operative solely because of race and designed to preclude their exercising the fran chise. Later Oklahoma replaced the “ Grandfather Clause” with a requirement that persons previously barred from voting could qualify only by registering during a twelve- day period in 1916. Lane v. Wilson, 307 IT. S. 268 (1939). The United States Supreme Court found the twelve day period inadequate on the grounds that persons so long disfranchised could not be expected to comply with the conditions of registration in so short a time and stated 8 that “ sophisticated as well as simple-minded modes of dis crimination” would not be allowed to operate to deny con stitutional rights (at p. 275). As the State of Alabama seeks to exclude appellee from state supported graduate education solely because he has previously been denied an adequate education at another state institution that he was required to attend because of his race, the lower court must be affirmed. The solution here is not to oust appellee Franklin from Auburn University, but rather, for the State of Alabama to provide adequate education for all of its citizens. The record shows that Franklin submitted two applica tions to Auburn University on November 30, 1962, one to the Registrar and one to the Dean of the Graduate School. The record also shows that Franklin entered Alabama State College in September 1958, and graduated in May 1962. Alabama State College was an accredited institution from December 1957 to December 1961. Franklin had thus completed three and one-half years of undergraduate edu cation on an accredited basis with only one semester on an unaccredited basis. The courses he completed during the three and one-half years on an accredited basis more than met the qualifications for admission to the Master of Arts program at Auburn University (see Exhibit 4). Any con tention, therefore, that Franklin was unqualified for ad mission to Auburn or was accorded “ preferential” treat ment is groundless. Franklin’s application for admission to the Graduate School of Auburn University was denied solely on the basis of race. The State of Alabama’s failure to provide adequate undergraduate institutions for Negro students, of necessity, barred them from meeting requirements for admission to state operated graduate schools. This constitutes a clear 9 denial of the equal protection of law guaranteed by the Fourteenth Amendment. Moreover, Franklin, though tech nically not a graduate of an accredited institution, never theless fulfilled all the requirements for admission to Grad uate School by obtaining three and one-half years training at an accredited institution. Any contention that he is un qualified to attend Auburn University is without merit. CONCLUSION It is respectfully submitted that the judgment of the trial court should be affirmed. L e r o y D. Clark Of Counsel F r e d 1). G r a y 34 North Perry Street Montgomery 4, Alabama J a c k G r e e n b e r g C o n s t a n c e B a k e r M o t l e y J a m e s M . N a b r it , III 10 Columbus Circle New York 19, New York Attorneys for Appellee -V 38