McKissick v. Carmichael Jr. Brief for Appellants

    InitfiJ Stall's (fiuurt of Apprala
F ob the F ourth Circuit

No. 6201

FLOYD B. MoKISSICK, SOLOMON KEYIS, et al,
Appellants,

against

WILLIAM DONALD CARMICHAEL, JR., President of 
the University of North Carolina; HENRY P. BRANDIS, 
JR., Dean of the Law School of the University of North 
Carolina; LEE ROY WELLS ARMSTRONG, Director 
of Admissions of the University of North Carolina; 
ARCH T. ALLEN, Secretary of the Board of Trustees 
of the University of North Carolina; and THE UNI­
VERSITY OF NORTH CAROLINA, a Body Incorpo­
rate,

Appellees.

A ppeal F rom the D istrict Court of the U nited States, 
Middle D istrict of North Carolina.

*

BRIEF FOR APPELLANTS

Conrad 0 . P earson,
P. O. Box 428,
Durham, North Carolina.

R obert L. Carter,
T hurgood Marshall,

20 West 40th Street,
New York 18, N. Y.

Attorneys for Appellants.

J u d ic ia l  P r in t in g  Co., I n c ., 82 Beekman St., N. Y.— BEekman 3-9084-5-6 1 8 2



I N D E X

PAGE

Statement of the Case .................    1

Statement of Pacts .......................................................  3

Argument ...........................................   3
The decision of the United States Supreme Court 

in Sweatt v. Painter is controlling here, and 
under the principles enunciated in that case, 
appellants must be admitted to the University 
of North Carolina School of Law forthwith . . .  3

Conclusion ........................................................................ 13

T able of Cases

Connolly v. Union Sewer Pipe Co., 184 U. S. 540 . . . .  4
Continental Baking Co. v. Woodring, 286 U. S. 353 . . .  5

Dominion Hotel v. Arizona, 249 U. S. 265 ................... 5

Groessart v. Cleary, 335 U. S. 464 ................................  5

Hirabayashi v. United States, 320 U. S. 8 1 ................... 5

Korematsu v. United States, 323 U. S. 214 .................  5

Maxwell v. Bugbee, 250 U. S. 525 ................................  4
Mayflower Farms v. Ten Eyck, 297 U. S. 266 ...............  5
McLaurin v. Board of Regents, 339 U. S. 637 ........4, 5,13
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . . . .  4



11 I N D E X

PAGE

Oyama v. California, 332 U. S. 633 ............................  5

Plessy v. Ferguson, 163 U. S. 537 ................................  5

Quaker City Cab Co. v. Pennsylvania, 277 IT. S. 389 . . 5

Sipuel v. Board of Regents, 332 IT. S. 631 ................... 4
Skinner v. Oklahoma, 316 IT. S. 535 ..............................  5
Southern Railway Co. v. Greene, 216 IT. S. 400 .........  4, 5
Strauder v. West Virginia, 100 IT. S. 303 ..................... 4
Sweatt v. Painter, 339 U. S. 629 ............. 4, 5, 6, 7, 8,12,13

Takahashi v. Fish and Game Commission, 334 U. S.
410 ......................................... ......................................  4,5

Truax v. Raich, 239 U. S. 3 3 ...........................................  5



United States (Gnurt of Appeals
F oe the F ourth Circuit 

No. 6201

FLOYD B. McKISSICK, SOLOMON EEVIS, et al,
Appellants,

against

WILLIAM DONALD CARMICHAEL, JR., President of 
the University of North Carolina; HENRYP. BRANDIS, 
JR., Dean of the Law School of the University of North 
Carolina; LEE ROY WELLS ARMSTRONG, Director 
of Admissions of the University of North Carolina; 
ARCH T. ALLEN, Secretary of the Board of Trustees 
of the University of North Carolina; and THE UNI­
VERSITY OF NORTH CAROLINA, a Body Incorpo­
rate,

Appellees.

BRIEF FOR APPELLANTS

Statement o f the Case

The instant cause of action was commenced on October 
25, 1949, by Harold Epps and Robert Glass, the original 
complainants in the Court below, as a class suit on behalf of 
themselves and all other Negroes similarly situated. While 
the cause was there pending, Floyd B. McKissiek, Solomon 
Revis, James Lassiter, J. Kenneth Lee and several other 
persons were permitted to intervene as parties-plaintiff. 
The original plaintiffs and the other intervenors were per­
mitted to withdraw without prejudice for reasons set out



2

in the record, leaving the four above-named parties as 
plaintiffs at the trial in the Court below and as appellants 
in this Court (R. 25, 26 )d

A trial on the merits took place on August 28-30, 1950, 
in the Durham Division of the United States District Court 
for the Middle District of North Carolina before the Court 
without a jury. On October 9, 1950, appellants’ cause of 
action wTas dismissed on the grounds that the state afforded 
them at the law school of the North Carolina College for 
Negroes in Durham, North Carolina, facilities and oppor­
tunities substantially equal to those offered to all other 
persons at the law school of the University of North Caro­
lina in Chapel Hill. The Court’s opinion is reported in 
93 F. Supp. 327, and its final decree, entered the same day, 
is to be found in the record at page 290. From the final 
judgment dismissing the complaint, appellants brought 
the cause here. The notice of appeal was filed on October 
26, 1950.

The sole issue pressed here, and in the court below, is 
whether refusal to admit appellants to the University of 
North Carolina School of Law solely because of their race 
and color constitutes a deprivation of rights secured under 
the equal protection clause of the Fourteenth Amendment. 
Appellants contend that the facilities and opportunities 
available to them at the College Law School are not equal 
to those available at the University Law School,1 2 and that 
the only way the rights guaranteed to them under the 
Fourteenth Amendment can be secured is by their admis­
sion to the University Law School on the same basis as 
other students.

1. The record citations here are the citations of the page numbers as they 
appear in the appendix to appellants’ brief.

2. When the term “ College Law School’ ’ is used, it will refer to the law 
school of the North Carolina College for Negroes at Durham, and when the 
term “ University Law School”  is used, it will refer to the law school of the 
University of North Carolina at Chapel Hill.



3

Statement of Facts

Appellants are citizens of the United States and resi­
dents of the State of North Carolina. They are at present 
attending the law school at the North Carolina College for 
Negroes, a public institution maintained and supported out 
of state funds to provide legal training exclusively and 
solely for Negroes in accord with the state’s policy, custom, 
practice and usage of providing separate educational facili­
ties for Negroes in public institutions within the State of 
North Carolina.

Appellants made appropriate application for admission 
to the University of North Carolina School of Law, and 
were refused admission solely because of race and color. 
It is conceded that appellants possess all the requisite 
requirements for admission to the University Law School 
and would have been admitted except for the fact that 
they are Negroes (E. 7, 13, 24, 215).

ARGUMENT

The decision of the United States Supreme Court 
in Sweatt v. Painter is controlling here, and under the 
principles enunciated in that case, appellants must be 
admitted to the University of North Carolina School of 
Law forthwith.

It is admitted that appellants satisfy all the require­
ments for admission to the University of North Carolina 
School of Law and were denied admission thereto solely 
because of their race and color. Appellees seek to justify 
this refusal on the grounds that the state is maintaining 
and operating a law school for Negroes at Durham, North 
Carolina, which affords to appellants opportunities and 
facilities substantially equivalent to those offered to all



4

other persons at the University of North Carolina. It is 
contended that the maintenance by the state of the College 
Law School for Negroes satisfies the requirements of the 
equal protection clause of the Fourteenth Amendment, and 
that in refusing to admit appellants and all other Negroes 
to the University Law School no deprivation of constitu­
tional rights has been committed.

It is now clear beyond question that once a state under­
takes to provide educational facilities for white persons, 
it must provide equal facilities for Negroes, Missouri ex rel 
Gaines v. Canada, 305 U. S. 337, and at the same time, 
Sipuel v. Board of Regents, 332 U. S. 631. It is also clear 
that the mere furnishing of a separate facility for Negroes 
does not in itself satisfy the requirements which the Four­
teenth Amendment imposes, Sweatt v. Painter, 339 U. S. 
629. Indeed, the state’s obligations under the Fourteenth 
Amendment are not met when, because of considerations of 
race and color, it requires persons to study law in isolation 
from a substantial and significant segment of the popula­
tion, or when, at the graduate and professional school 
levels of state universities, it attempts to impose or to 
enforce any distinctions or classifications based upon race 
or color. Sweatt v. Painter, supra; McLaurin v. Board 
of Regents, 339 U. 8. 637.

These decisions are a logical application of long-settled 
constitutional doctrine as to the purposes and intendment 
of the Fourteenth Amendment. One of the basic principles 
of constitutional law is that all persons similarly situated 
must be treated alike by the state, Southern Railway Co. 
v. Greene, 216 U. S. 400; Connolly v. Union Sewer Pipe Co., 
184 U. S. 540; Maxwell v. Bugbee, 250 U. S. 525, and that 
a state cannot deny to any person because of race or color 
any advantage or opportunity it offers to other persons. 
Strauder v. West Virginia, 100 U. S. 303; Missouri ex rel. 
Gaines v. Canada, supra; Sipuel v. Board of Regents, supra; 
Takahashi v. Fish and Game Commission, 334 U. S. 410.



5

Legislative distinctions and classifications are only permis­
sible when based upon a real or substantial difference which 
has pertinence to the legislative objective. Quaker City 
Cab Co. v. Pennsylvania, 277 U. S. 389; Southern Railway 
Co. v. Greene, supra; Truax v. Raich, 239 IT. S. 33; May­
flower Farms v. Ten Eyck, 297 IT. S. 266; Skinner v. Okla­
homa, 316 IT. S. 535; Dominion Hotel v. Arizona, 249 IT. S. 
265; Groessart v. Cleary, 335 U. S. 464; Continental Bak­
ing Co. v. Woodring, 286 U. S. 353. A legislative classifi­
cation or distinction based upon race and color is consid­
ered irrational and irrelevant, see Ilirabayashi v. United 
States, 320 U. S. 81; Korematsu v. United States, 323 IT. 8. 
214, and such distinctions when imposed by the state have 
been held to overreach the limitations set by the equal pro­
tection clause of the Fourteenth Amendment. Takahashi 
v. Fish and Game Commission, supra; Oyama v. California, 
332 U. S. 633.

Yet, prior to decision by the United States Supreme 
Court in the Sweatt and McLaurin cases, it was considered 
possible for a state to avoid having its racially imposed 
classifications or distinctions struck down by affording 
separate facilities for Negroes under the separate but 
equal theory of Plessy v. Ferguson, 163 U. S. 537. What­
ever may be the impact of this theory on the limitations of 
a state’s power to impose racial classifications and distinc­
tions in general, it is clear that in the area of state gradu­
ate and professional educational facilities, the doctrine of 
Plessy v. Ferguson is now without significance.

No proper decision, therefore, can now be made as to the 
legality of segregation laws, practices, customs or usages 
in the field of legal education without careful analysis of 
the reach of these two recent Supreme Court pronounce­
ments. The Court attempted to determine appellants’ 
rights in this cause as if the Sweatt and McLaurin cases 
had never been decided, and in so doing, we submit, fell 
into fatal error.



6

If the Court below had adopted the rationale of the Su­
preme Court in the Sweatt case, no conclusion would have 
been possible other than that appellants are entitled to ad­
mission to the law school of the University of North Caro­
lina.

In that case, the Court in holding that petitioner was en­
titled to be admitted to the University of Texas School of 
Law stated at pages 632-635:

4 4 The University of Texas Law School, from which 
petitioner was excluded, was staffed by a faculty 
of sixteen full-time and three part-time professors, 
some of whom are nationally recognized authorities 
in their field. Its student body numbered 850. The 
library contained over 65,000 volumes. Among the 
other facilities available to the students were a law 
review, moot court facilities, scholarship funds, and 
Order of the Coif affiliation. The school’s alumni 
occupy the most distinguished positions in the private 
practice of the law and in the public life of the State. 
It may properly be considered one of the nation’s 
ranking law schools.

“ The law school for Negroes which was to have 
opened in February, 1947, would have had no in­
dependent faculty or library. The teaching was to 
be carried on by four members of the University of 
Texas Law School faculty, who were to maintain 
their offices at the University of Texas while teaching 
at both institutions. Few of the 10,000 volumes 
ordered for the library had arrived; nor was there 
any full-time librarian. The school lacked accredita­
tion.

“ Since the trial of this case, respondents report 
the opening of a law school at the Texas State Uni­
versity for Negroes. It is apparently on the road to 
full accreditation. It has a faculty of five full-time 
professors; a student body of 23; a library of some 
16,500 volumes serviced by a full-time staff; a prac­
tice court and legal aid association; and one alumnus 
who has become a member of the Texas Bar.



7

“ Whether the University of Texas Law School 
is compared with the original or the new law school 
for Negroes, we cannot find substantial equality in 
the educational opportunities offered white and 
Negro law students by the State. In terms of num­
ber of the faculty, variety of courses and opportunity 
for specialization, size of the student body, scope of 
the library, availability of law review and similar 
activities, the University of Texas Law School is 
superior. What is more important, the University 
of Texas Law School possesses to a far greater de­
gree those qualities which are incapable of objective 
measurement but which make for greatness in a law 
school. Such qualities, to name but a few, include 
reputation of the faculty, experience of the admin­
istration, position and influence of the alumni, stand­
ing in the community, traditions and prestige. It is 
difficult to believe that one who had a, free choice 
between these law schools would consider the ques­
tion close.

“ Moreover, although the law is a highly learned 
profession, we are well aware that it is an intensely 
practical one. The law school, the proving ground 
for legal learning and practice, cannot be effective 
in isolation from the individuals and institutions 
with which the law interacts. Few students and no 
one who has practiced law would choose to study in 
an academic vacuum, removed from the interplay 
of ideas and the exchange of views with which the 
law is concerned. The law school to which Texas is 
willing to admit petitioner excludes from its student 
body members of the racial groups which number 
85% of the population of the State and include most 
of the lawyers, witnesses, jurors, judges and other 
officials with whom petitioner will inevitably be deal­
ing when he becomes a member of the Texas Bar. 
With such a substantial and significant segment of 
society excluded, we can not conclude that the educa­
tion offered petitioner is substantially equal to that 
which he would receive if admitted to the University 
of Texas Law School.



8

“ It may be argued that excluding petitioner from 
that school is no different from excluding white 
students from the new law school. This contention 
overlooks realities. It is unlikely that a member of 
a group so decisively in the majority, attending a 
school with rich traditions and prestige which only 
a history of consistently maintained excellence could 
command, would claim that the opportunities afforded 
him for legal education were unequal to those held 
open to petitioner. That such a claim, if made, 
would he dishonored by the State, is no answer.
‘ Equal protection of the laws is not achieved through 
indiscriminate imposition of inequalities.’ ”

If we apply the same standards of measurement to this 
case which were applied in the Sweatt case, we are faced 
with the following uneontroverted facts:

The Two Law School Plants

The University Law School commenced in 1845 when a 
professorship of law was established. It was not formal­
ized into a law school until 1900 (R. 40, 41, 282). It is 
situated at Chapel Hill, North Carolina, and is part of the 
University of North Carolina. The law school is housed 
in a brick building, which was originally planned and 
designed as a law school (R. 47) at an original cost of 
approximately $120,000. Additions to the law school cost­
ing approximately $400,000, were in process at the time 
of trial and were planned and designed specifically to meet 
the needs and specifications for law school teaching (R. 47). 
The additions were promised completion by December, 1950 
(R. 47). There are study halls for students and space 
where they can use typewriters (R. 50). Each member of 
the faculty has a private office and none have offices in the 
classroom (R. 57).

The College Law School was opened in 1939 but had to 
close because of lack of students. It reopened in 1940 and 
has been in operation since that date (R. 97, 282). It is



9

situated in Durham, North Carolina, and is a part of the 
North Carolina College for Negroes. The Law School is 
housed in a frame building, originally built as an audi­
torium of the College (R. 110). The College general library 
is to be converted into a law school at an estimated cost 
of $20,000 as soon as the new library is completed (R. 110). 
There are no study halls for students and no separate space 
for students to study with typewriters (R. 102). Students 
must study and type in the library (R. 102). One of the 
members of the faculty uses his classroom as an office 
(R. 102).

Accreditation

The University Law School is a member of the Asso­
ciation of American Law Schools and is approved by the 
American Bar Association and North Carolina Board of 
Examiners (R. 42, 283). The College Law School is ap­
proved provisionally by the American Bar Association 
and North Carolina Board of Examiners and has filed 
application for admission to the Association of American 
Law Schools (R. 101, 283).

Degrees and Courses

The University Law School is offering 38 courses of 
instruction during the 1950-1951 school term (R. 65). It 
awards an LL.B. degree and a J.D. degree (R. 61), and 
holds summer sessions (R. 62).

The College Law School is offering 27 courses of in­
struction during the 1950-1951 school term, and awards only 
the LL.B. degree and holds no summer sessions (R. 104).

Student Body

The University Law School has a student body of ap­
proximately 288 students. These students are a cross sec­



10

tion of the state’s population representing racial groups 
comprising approximately 74% of the state’s population 
(R. 55, 286). From this group comes most of the judges, 
lawyers, witnesses and jurors with whom a member of the 
North Carolina bar must deal. It has a law review main­
tained since 1923 (R. 46), a chapter of the Order of the 
Coif (R. 52), and other student activities (R. 63).

The College Law School had an enrollment of 28 stu­
dents. They are all Negroes and come from a racial group 
representing 26% of the state’s population. It has no 
law review, no chapter of the Order of the Coif (R. 104), 
and there was no testimony of any other student activities.

The Faculty

The University Law School has a full-time staff of ten 
teachers including the Dean, and in addition a full time 
librarian and assistant librarian. Nine of the ten teachers 
are full professors, and the tenth and latest addition to the 
faculty is an assistant professor (R. 44). Faculty members 
have done a considerable amount of research and writing 
in their fields, and a summary of their publications may be 
found at pages 268, 269, 270 in the record. Members of 
their staff have had extensive teaching experience (R. 45), 
and experience in government service (R. 42) and are 
recognized authorities in their field. Members of the 
faculty serve on the North Carolina Legislative Commis­
sions (R. 51).

The College Law School has a full-time staff of five 
teachers including the Dean and the librarian (R. 97). 
There is no established professorial ranking although the 
Dean is given a title of full Professor and the other full­
time teachers that of Assistant Professor (R. 100). All 
members of the faculty have had a limited amount of 
teaching experience (R. 99), the greatest amount of ex­
perience, except for the Dean who has been at the college



11

since 1941, is three years (R. 99). There is no evidence 
of any legal research having been done by the faculty, and 
none of them has written or published any legal treatises 
(R. 101, 111). With exception of the Dean its faculty lias 
no ascertainable reputation (R. 217). No members of the 
faculty have ever served on the North Carolina Legislative 
Commission (R. 100).

The Library

The University Law School has a law librarian and 
assistant librarian, and between five to eight part-time 
student assistants (R. 80). The library holds approxi­
mately 64,000 volumes (R. 82), but only 47,000 were avail­
able on the shelves at the time of the trial, pending com­
pletion of additions to the law school building (R. 287). 
The library has an upper and lower reading room, and 
several detached reading rooms, all of which contain vari­
ous reports (R. 85, 86).

The College Law Library has a full-time librarian and 
two part-time student assistants. The College owns ap­
proximately 30,000 volumes, but only 23,000 were on the 
shelves (R. 267). It has only one reading room (R. 106).

Reputation and Alumni

Witnesses for appellants testified that the University 
of North Carolina is considered one of the leading educa­
tional institutions in the South (R. 146), and that the 
University Law School has an excellent reputation (R. 
217), and is considered one of the leading law schools in 
the country (R. 146, 192). The alumni of the University 
Law School occupy some of the most prominent positions 
in the private practice of law and in the public life of the 
state. Among its alumni are governors of the state, state 
and federal judges, state and federal legislators (R. 270, 
271). The majority of the practicing attorneys and legis­



1 2

lators in the state received their training at the University 
of North Carolina School of Law (E. 272-280).

The College Law School has no graduates of equal 
prominence either in the private practice of law, or in the 
public life of the state. Neither North Carolina College 
for Negroes, nor the College Law School has any ascer­
tainable reputation other than as state schools for Negroes 
in North Carolina (E. 146, 217).

In comparing these above facts with those set forth by 
the Court in the Sweatt case, it is difficult to perceive 
how any conclusion can be reached other than that appel­
lants must be admitted to the University of North Carolina 
Law School for the same reasons that the Court ordered 
petitioner’s admission to the University of Texas Law 
School in the Sweatt case.

It is true that there are minor differences between the 
two cases. In this case the state has maintained and oper­
ated the College Law School for Negroes continuously since 
1940, and in the Sweatt case the law school was established 
in 1947. The Supreme Court, however, recognized the 
Texas Law School for Negroes as a going concern, and that 
the training offered was adequate to enable its graduates 
to successfully pass the State Bar Examination, but the 
issue before it for decision was whether that school could 
be considered the equal to the University of Texas. It 
found it could not be.

Thus, in this case neither the good intentions of the 
state, the adequacy of legal training offered at the College 
Law School, nor its ten years’ existence can be considered 
relevant. The issue which must be met is whether the 
College Law School is the equivalent of the University 
Law School. The facts, we submit, compel the conclusion 
that the University Law School in this case, as the Texas 
University Law School in the Sweatt case, is far superior 
to the separate institution which the state has established



13

for the legal training of Negroes. It seems clear that 
when the Court places such emphasis on the fact that the 
petitioner in the Sweatt case would have been required to 
study at the Texas Law School for Negroes in isolation 
from 85% of the population as evidence of inequality, that 
here an indicia of inequality must be found in the fact that 
appellants are required to take their training at a segre­
gated law school in isolation from 74% of the population 
of the State of North Carolina. When the Sweatt case is 
considered along with the decision in McLaurm v. Board 
of Regents, supra, where it was held to be a denial of the 
equal protection of the laws to require a Negro graduate 
student, admitted to the state university, to sit at a specially 
designated seat or desk in the classroom and at a special 
table in the cafeteria and library, the conclusion is ines­
capable that in respect to graduate and professional train­
ing offered by the state, the requirements of the Fourteenth 
Amendment can only be met by according to Negroes the 
same training accorded to all other persons and on the 
same basis.

Conclusion

Any consideration as to the desirability of North Caro­
lina’s policy of maintaining separate institutions for the 
legal training of Negroes has been foreclosed by the United 
States Supreme Court’s decision in the Sweatt case. It has 
been determined by that Court that to require a person to 
attend a racially segregated law school in “ isolation from 
the individuals and institutions with which the law inter­
acts”  is to deny that person rights which are guaranteed 
by the equal protection clause of the Fourteenth Amend­
ment. Appellees, therefore, in refusing appellants admis­
sion to the University of North Carolina School of Law 
because of race and color are guilty of an unconstitutional 
deprivation of appellants’ rights.



u
Wherefore, it is respectfully submitted that the 

judgment of the Court below should be reversed.

Conrad 0 . P earson, 
R obert L. Carter, 
T hurgood Marshall 

Attorneys for Appellants.

Dated: February 15, 1951