Parker v. Frankin Brief for Appellee

    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,



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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.



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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



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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.



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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.



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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



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