Sassower v Field Petition for Rehearing

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1950

No.
BOARD OF SUPERVISORS OF LOUISIANA STATE 

UNIVERSITY AND AGRICULTURAL AND 
MECHANICAL COLLEGE, ET AL,

Defendants-Appellants

Versos

ROY S. WILSON,
Plaintiff-Appellee

BRIEF OF DEPENDANTS-APPELLANTS IN OPPOSITION 
TO MOTIONS OF APPELLEE TO DISMISS 

OR AFFIRM

Bolivar E. Kem p , Jr.
Attorney General of the State of Louisiana 
Carroll Buck

First Assistant Attorney General 
Henry C. Sevier 
C. C. Bird, Jr.
Taylor, Porter, Brooks, Fuller & Phillips 
C. V. Porter 
L. W. Brooks 
James R. F uller

Attorneys for Defendants-Appellants



1.

TABLE OF AUTHORITIES

CASES

Page

Borges v. Loftis, 87 Fed. 2d 734, 301 U.S. 687, 57 S. Ct.
789, 81 L. Ed. 1344, 301 U.S. 714, 57 S. Ct. 928, 81 
L. Ed. 1366 ......................................................................... 2

McLaurin v. OMahoma, 94 L. Ed. 787 .................................  4

Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 
L. Ed. 800 ..........................................................................  2

Railroad Commission of Texas v. Pullman Company, 312 
U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 .........................  2

Sweatt v. Painter, 94 L. Ed. 783 ............................................ 4

STATUTES

United States Code, Title 8, Section 4 3 ..............................  2

United States Code, Title 28, Section 1343 ........................ 2

United States Code, Title 28, Section 2281.......................... 2

United States Code, Title 28, Section 1253 5



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1950

No.
BOARD OF SUPERVISORS OF LOUISIANA STATE 

UNIVERSITY AND AGRICULTURAL AND 
MECHANICAL COLLEGE, ET AL,

Defendants-Appellants

Versus

ROY S. WILSON,
Plaintiff-Appellee

BRIEF OF DEFENDANTS-APPELLANTS IN OPPOSITION 
TO MOTIONS OF APPELLEE TO DISMISS 

OR AFFIRM

May It Please the Court:

The Appellee filed herein motions to dismiss or affirm 
pursuant to Paragraph 3 of Rule 12 of the Rules of the 
Supreme Court in response to the jurisdictional statement 
filed by appellants.

The complaint, praying for the issuance of a preliminary 
injunction, was filed in the United States District Court, 
Eastern District of Louisiana, Baton Rouge Division, and a



2

specially constituted District Court of the United States was 
convoked under the authority of Title 28, United States Code, 
Section 1343; Title 8, United States Code, Section 43; and 
Title 28, United States Code, Section 2281.

The order attacked was a resolution adopted by Board 
of Supervisors of Louisiana State University and Agricul­
tural and Mechanical College, a public corporation, organized 
and existing under the laws of the State of Louisiana, and 
particularly the Constitution of Louisiana of 1921, Article 
XII, Section 7, and Louisiana Revised Statutes of 1950, Title 
17, Section 1451, et seq., which said resolution reads as 
follows:

“BE IT RESOLVED that pursuant to the laws of Loui­
siana and the policies of this Board the administrative 
officers are hereby directed to deny admission to the 
following applicants: Nephus Jefferson, Dan Columbus 
Simon, Willie Cleveland Patterson, Charles Edward 
Coney, Joseph H. Miller, Jr., Roy Samuel Wilson, Lloyd 
E. Milburn, Lawrence Alvin Smith, Jr., James Lee Per­
kins, Edison George Hogan, Harry A. Wilson, Anderson 
Williams.’’

Board of Supervisors of Louisiana State University and 
Agricultural and Mechanical College objected to the juris­
diction of the specially constituted District Court of the 
United States on the authority of the following, among other, 
cases, to-wit: Railroad Commission of Texas v. Pullman
Company, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971; Phillips 
v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800; 
and Borges v. Loftis, 87 Fed. 2d 734, 301 U. S. 687, 57 S. Ct. 
789, 81 L. Ed. 1344, 301 U. S. 714, 57 S. Ct. 928, 81 L. Ed. 
1366.



3

The specially constituted District Court took jurisdiction 
under the statutes above mentioned in spite of the authorities 
above cited, as the complainant had brought the action on 
his own behalf and on behalf of other Negro citizens of the 
United States residing in the State of Louisiana to be admit­
ted to the Law School of Louisiana State University and 
Agricultural and Mechanical College, and prayed for a pre­
liminary injunction restraining the named defendants from 
making any distincton on the basis of race or color in the 
consideration of plaintiff or any other applicant for admis­
sion to the Law School of Louisiana State University and 
Agricultural and Mechanical College.

The defendants answered the complaint and defended, 
in effect, on the ground that the State of Louisiana maintains 
separate schools for white and colored residents, that two 
Law Schools are maintained by the State of Louisiana, one 
of which is located at Louisiana State University and Agri­
cultural and Mechanical College and is for white students, 
and the other is located at Southern University and is for 
colored students, both of which offer equal facilities for a 
legal education and admission to the bar of the State of Loui­
siana, and that, therefore, plaintiff and all others similarly 
situated are required under the law to attend Southern Uni­
versity Law School and are not eligible for admission to the 
Law School of Louisiana State University and Agricultural 
and Mechanical College.

The defendants offered the evidence that was immedi­
ately available within the short time allowed before trial, 
which evidence showed, among other things, that the State 
of Louisiana had appropriated for the past year an amount



4

of some $2800.00 for each law student of Southern University 
and some $600.00 for each law student of Louisiana State 
University and Agricultural and Mechanical College, that the 
faculty, equipment and facilities of both schools are substan­
tially equal and are adequate and sufficient to fully educate 
and equip a student to practice law in the State of Louisiana 
and that graduates of both institutions have the same rights 
under the law to be admitted to the bar of the State of 
Louisiana.

The specially constituted United States District Court 
found for the plaintiff, but a reading of the Court’s decision 
will show that it has misinterpreted the holdings of this 
Court in the cases of McLaurin v. Oklahoma, 94 L. Ed. 787 
and Sweatt v. Painter, 94 L. Ed. 783.

The United States District Court abused its discretion in 
granting a preliminary injunction as same should not have 
been issued under the facts shown by defendants. The plain­
tiff had access at all times to Southern University Law
School which satisfied the requirements of the previous hold­
ings of this Court.

This appeal presents several serious questions of law and 
of fact that should be reviewed by this Court as the State of 
Louisiana has obviously complied in every practicable manner 
with the law as laid down by this Court. Appellants should 
not, therefore, be denied the privilege of presenting oral 
argument and written brief in support of their contentions.

The specially constituted United States District Court 
having been convoked under the above cited authorities and 
having rendered judgment in said case, this Honorable Court



5

has appellate jurisdiction under the authority of United States 
Code, Title 28, Section 1253. The motions filed by appellee 
do not question the appellate jurisdiction of this Court.

The motions of appellee to dismiss or affirm should, 
therefore, for the reasons above shown, be denied or over­
ruled.

And defendants shall ever so pray.

Respectfully submitted,

Bolivar E. Kem p , Jr.
Attorney General of the State of Louisiana 
Carroll Buck

First Assistant Attorney General 
Henry C. Sevier 
C. C. B ird, Jr .
Taylor, Porter, Brooks, F uller & Phillips 
C. V. Porter 
L. W. Brooks 
James R. Fuller

Baton Rouge, Louisiana,
November 29, 1950.



6

CERTIFICATE
I, L. W. Brooks, of counsel for defendants-appellants in 

the above entitled action, hereby certify that on the 29th 
day of November, 1950, I served copies of the foregoing brief 
upon the attorneys for the plaintiff-appellee by depositing 
same in the United States mails, postpaid, addressed to them 
as follows:

A. P. Tureaud,
612 Iberville Street,
New Orleans, Louisiana.

U. Simpson  Tate,
Anderson Building,
1718 Jackson Street,
Dallas 1, Texas.

Thurgqod Marshall,
20 West 40th Street,
New York 18, New York.

Baton Rouge, Louisiana, November 29, 1950.

L. W. Brooks.