Sipuel v Board of Regents of UOK Petition for Writ of Certiorari

    SUPREME EDURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 369

ADA LOIS SIPUEL, 

vs.
Petitioner,

BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE H. 
MERRILL, GEORGE WADSACK and  ROY GIT- 
TINGER,

Respondents.

PETITION FOR W RIT OF CERTIORARI AND BRIEF 
IN SUPPORT THEREOF, TO THE SUPREME COURT 
OF THE STATE OF OKLAHOMA

A m os T . H a l l ,
T hurgood  M a r sh a ll , 

Attorneys for Petitioner.
R obert L. C arter , 

Of Counsel.



INDEX

S u b je c t  I ndex
Page

Petition for writ of certiorari.....................................  1
Statement of the constitutional problem pre­

sented ..................................................................  2
The salient fa c t s ....................................................  3
Question presented................................................. 5
Reason relied on for allowance of the writ.......... 6
Conclusion ..............................................................  6

Brief in support of petition ......................................... 7
Opinion of court below........................................... 7
Jurisdiction ............................................................  7
Statement of the case............................................. 8
Error below relied upon here...............................  8
Argument ............................................................... 8

The decision of the Supreme Court of Okla­
homa is inconsistent with and directly con­
trary to the decision of this Court in
Gaines v. Canada ....................................... 8

Conclusion ..............................................................  19

C ases C ited

Canty v. Alabama, 309 U. S. 629.................................  6
Gaines v. Canada, 305 U. S. 337.................................  6
White v. Texas, 309 U. S. 631......................................... 6

S tatu tes  C ited

Constitution of Oklahoma, Art. 13A .........................  15,18
Federal Constitution, Fourteenth Amendment.......... 3
Judicial Code, Sec. 237(b) as amended.......................  1, 7
Missouri Revised Statutes— 1929, Section 9618 .... 22
Missouri Revised Stat. of 1939, Chapter 72, Art. 2, 

Section 10349 (R, S. 1929, Sec. 9216, Rev. Stat.
Mo. 1939) .................................................................... 11,22

Oklahoma Stat. 1941, Title 70, Section 1451.............  14, 21
Oklahoma Stat. 1945, Title 70, Section 1451b.............  15, 21

—2585



SUPREME EDURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 369

ADA LOIS SIPUEL,

vs.
Petitioner,

BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE H. 
MERRILL, GEORGE WADSACK and  ROY GIT- 
TINGER,

Respondents.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF OKLAHOMA

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioner, Ada Lois Sipuel, invokes the jurisdiction of 
this Court under Section 237b of the Judicial Code (28 
U. S. C. 344b) as amended February 13, 1925, and respect­
fully prays that a writ of certiorari issue to review the judg­
ment of the Supreme Court of the State of Oklahoma (R. 
61), affirming the judgment of the District Court of Cleve­
land County denying petitioner’s application for a writ of

lc



2

mandamus to compel respondents to admit her to the first 
year class of the law school of the University of Oklahoma.

Statement of the Constitutional Problem Presented

Petitioner is a citizen and resident of the State of Okla­
homa. She desires to study law and to prepare herself for 
the practice of the legal profession. Pursuant to this aim 
she applied for admission to the first year class of the 
School of Law of the University of Oklahoma, a public in­
stitution maintained and supported out of public funds and 
the only public institution in the State offering facilities for 
a legal education. Her qualifications for admission to this 
institution are undenied, and it is admitted that petitioner, 
except for the fact that she is a Negro, would have been ac­
cepted as a first year student in the law school of the Uni­
versity of Oklahoma, which is the only institution of its 
kind petitioner is eligible to attend.

Petitioner applied to the District Court of Cleveland 
County for a writ of mandamus against the Board of 
Regents, George L. Cross, President, Maurice R. Merrill, 
Dean of the Law School, Roy Gittinger, Dean of Admissions 
and Roy Wadsack, Registrar to compel her admission to the 
first year class of the school of law on the same terms and 
conditions afforded white applicants seeking to matriculate 
therein (R. 2). The writ was denied (R. 21), and on appeal 
this judgment was affirmed by the Supreme Court of the 
State of Oklahoma on April 29, 1947 (R. 35). Petitioner 
duly entered a motion for rehearing (R. 54), which was 
denied on June 24, 1947 (R. 61). Whereupon petitioner 
now seeks from this Court a review and reversal of the 
judgment below.

The action of respondents in refusing to admit petitioner 
to the school of law was predicated on the ground (1) that 
such admission was contrary to the constitution, laws and



3

public policy of the State; (2) that scholarship aid was 
offered by the State to Negroes to study law outside the 
State, and; (3) that no demand had been made on the 
Board of Regents of Higher Education to provide such legal 
training at Langston University, the State institution af­
fording college and agricultural training to Negroes in the 
State.

In this Court petitioner reasserts her claim that the re­
fusal to admit her to the University of Oklahoma solely 
because of race and color amounts to a denial of the equal 
protection of the laws guaranteed under the Fourteenth 
Amendment to the Federal Constitution in that the State 
is affording legal facilities for whites while denying such 
facilities to Negroes.

The Salient Facts

The facts in issue are uncontroverted and have been 
agreed to by both petitioner and respondents (R. 22-25). 
The following are the stipulated facts:

The petitioner is a resident and citizen of the United 
States and of the State of Oklahoma, County of Grady and 
City of Chicakasha, and desires to study law in the School 
of Law in the University of Oklahoma for the purpose of 
preparing herself to practice law in the State of Oklahoma 
(R. 22).

The School of Law of the University of Oklahoma is the 
only law school in the State maintained by the State and 
under its control (R. 22).

The Board of Regents of the University of Oklahoma is 
an administrative agency of the State and exercises over-all 
authority with reference to the regulation of instruction and 
admission of students in the University of Oklahoma. The 
University is a part of the educational system of the State 
and is maintained by appropriations from public funds



4

raised by taxation from the citizens and taxpayers of the 
State of Oklahoma (R. 22-23).

The School of Law of the Oklahoma University specializes 
in law and procedure which regulates the government and 
courts of justice in Oklahoma, and there is no other law 
•school maintained by public funds of the State where the 
petitioner can study Oklahoma law and procedure to the 
same extent and on an equal level of scholarship and in­
tensity as in the School of Law of the University of Okla­
homa. The petitioner will be placed at a distinct disad­
vantage at the bar of Oklahoma and in the public service 
of the aforesaid State with respect to persons who have had 
the benefit of the unique preparation in Oklahoma law and 
procedure offered at the School of Law of the University 
of Oklahoma, unless she is permitted to attend the afore­
said institution (R. 23).

The petitioner has completed the full college course at 
Langston University, a college maintained and operated by 
the State of Oklahoma for the higher education of its Negro 
citizens (R. 23).

The petitioner made due and timely application for ad­
mission to the first year class of the School of Law of the 
University of Oklahoma on January 14, 1946, for the semes­
ter beginning January 15, 1946, and then possessed and still 
possesses all the scholastic and moral qualifications required 
for such admission (R. 23).

On January 14, 1946, when petitioner applied for admis­
sion to the said School of Law she complied with all of the 
rules and regulations entitling her to admission by filing 
with the proper officials of the University an official tran­
script of her scholastic record. The transcript was duly 
examined and inspected by the President, Dean of Admis­
sion and Registrar of the University (all respondents 
herein) and was found to be an official transcript entitling



5

her to admission to the School of Law of the said University 
(R. 23).

Under the public policy of the State of Oklahoma, as 
evidenced by the constitutional and statutory provisions 
referred to in the answer of respondents herein, petitioner 
was denied admission to the School of Law of the University 
of Oklahoma solely because of her race and color (R. 23-24).

The petitioner, at the time she applied for admission to 
the said school of the University of Oklahoma, was and is 
now ready and willing to pay all of the lawful charges, fees 
and tuitions required by the rules and regulations of the said 
University (R. 24).

Petitioner has not applied to the Board of Regents of 
Higher Education to prescribe a school of law similar to 
the School of Law of the University of Oklahoma as a part 
of the standards of higher education of Langston University 
and as one of the courses of study thereof (R. 24).

It was further stipulated between the parties that after 
the filing of this case, the Board of Regents of Higher 
Education had notice that this case was pending and met and 
considered the questions involved herein and had no un­
allocated funds on hand or under its control at the time 
with which to open up and operate a law school and has 
since made no allocation for such a purpose (R. 24-25).

Question Presented

Does the Constitution of the United States Prohibit the 
Exclusion of a Qualified Negro Applicant Solely Because of 
Race from Attending the Only Law School Maintained By 
a State?

2c



6

Reason Relied On For Allowance of the Writ

The Decision of the Supreme Court of Oklahoma Is In­
consistent With and Directly Contrary to the Decision of 
This Court in Gaines v. Canada.1

The question presented in this case is identical to that 
presented to this Court in Gaines v. Canada. The facts 
and the Oklahoma Statute governing this case are similar to 
those involved in the Gaines case. Had the Gaines case 
been followed, judgment in petitioner’s favor would have 
been rendered in the court below. In other cases where 
this Court has been requested to review decisions of State 
courts denying fundamental civil rights and in direct con­
flict with previous decisions of this Court certiorari has 
been granted and the judgment reversed without hearing.2

Conclusion

W h erefore , it is respectfully submitted that this petition 
for writ of certiorari to review the judgment of the Supreme 
Court of the State of Oklahoma should be granted and the 
judgment of the Supreme Court of Oklahoma reversed.

A mos T. H a l l ,
T hurgood  M a r sh a ll , 

Attorneys for Petitioner.
R obert L. Carter ,

Of Counsel.

1 305 U. S. 337.
2 Canty v. Alabama, 309 U. S. 629; White V. Texas, 309 U. S. 631 

rehearing denied 310 U. S. 530.



SUPREME EOURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 369

ADA LOIS SIPUEL,

vs.
Petitioner,

BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE H. 
MERRILL, GEORGE WADSACK and  ROY GIT- 
TINGER,

Respondents.

BRIEF IN SUPPORT OF PETITION FOR W RIT OF 
CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF OKLAHOMA

Opinion of Court Below

The opinion of the Supreme Court of Oklahoma appears 
in the record filed in this cause (R. 35-51).

J urisdiction

Jurisdiction of this Court is invoked under Section 237b 
of the Judicial Code (28 U. S. C. 344b) as amended Febru­
ary 13, 1925.

The Supreme Court of Oklahoma issued its judgment in 
this case on April 29, 1947 (R. 51). Petition for rehearing



8

was appropriately filed and was denied on June 24, 1947 
(R. 61).

Statement of the Case

The statement of the case and a statement of the salient 
facts from the record are fully set forth in the accompany­
ing petition for certiorari. Any necessary elaboration on 
the finding of the points involved will be made in the course 
of the argument.

Error Below Relied Upon Here

The Decision of the Supreme Court of Oklahoma Is In­
consistent With and Directly Contrary to the Decision of 
This Court in Gaines v. Canada.

Argument

The Decision of the Supreme Court of Oklahoma Is In­
consistent With atid Directly Contrary to the Decision of 
This Court in Gaines v. Canada.

There is no dispute as to the facts in this case. Peti­
tioner’s qualifications for a legal education are admitted. 
The only law school maintained by the State of Oklahoma 
is the law school of the University of Oklahoma. Petition­
er’s application to said school was refused because of her 
race and color and she sought a writ of mandamus to com­
pel her admission to the law school of the University of 
Oklahoma (R. 2). The trial court refused to issue the 
writ (R. 21) and this judgment was affirmed by the Supreme 
Court of Oklahoma.

Respondents defended their refusal to admit petitioner 
on the ground that the laws of Oklahoma prohibited Negroes 
from attending schools established for white pupils. Peti­
tioner relied on the decision of this Court in Gaines v. 
Canada et al.,3 including the principle that: “ The admissi­

3 305 U. S. 337.



9

bility 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.”  4

However, the court below in affirming the judgment 
denying the writ relied upon the constitution and laws of the 
State requiring the segregation of the races for educational 
purposes:

“ Petitioner Ada Lois Sipuel, a Negro, sought admis­
sion to the law school of the State University at Nor­
man. Though she presented sufficient scholastic at­
tainment and was of good character, the authorities of 
the University denied her enrollment. They could not 
have done otherwise for separate education has always 
been the policy of this state by vote of citizens of all 
races. See Constitution, Art. 13, Sec. 3, and numer­
ous statutory provisions as to schools”  (R. 37).

* * * # # # #

“ Petitioner contends that since no law school is 
maintained for Negroes, she is entitled to enter the 
law school of the University, or if she is denied that, 
she will be discriminated against on account of race 
contrary to the 14th Amendment to the United States 
Constitution. This is specious reasoning, for of course 
if any person, white or Negro, is unlawfully discrimi­
nated against on account of race, the Federal Constitu­
tion is thereby violated. But in this claim for Univer­
sity admission petitioner takes no account, or does not 
take fair account, of the separate school policy of the 
State as above set out”  (R. 38).

This argument postulates an inherently fallacious 
premise which, if true, would render the equal protection of 
the laws guaranteed under the Fourteenth Amendment a 
meaningless and empty provision. This argument means

4 Id at p. 349.



10

in effect that where there exists a policy of racial separa­
tion ; and a state affords to whites a public facility unavail­
able to Negroes, it can delay, defeat or deny a claim of 
infringement of constitutional right by pleading the validity 
of its segregation laws. The law is clear that the admissi­
bility of segregation statutes is contingent upon proof that 
there is available to Negroes public facilities within the State 
equal to those afforded whites within the State.

Hence the segregational statutes or policy of Oklahoma 
could not validly be before the courts without there being 
first a showing that petitioner could have obtained within 
the State a legal education equal to that offered at the 
University of Oklahoma. This unquestionably is untrue 
since admittedly the University of Oklahoma is the only 
State institution offering instruction in law (R. 22). With 
the establishment of this fact along with petitioner’s quali­
fications for admission to the school of law, a primie facie 
case for issuance of the writ was made and respondents 
have advanced nothing to justify the court in refusing to 
render judgment in petitioner’s favor.

The similarity between this case and the Gaines case is, 
of course, apparent upon even a cursory examination. 
Upon close inspection, however, one finds that the two 
cases are all but identical both as to law and fact.

In the Gaines case, as here, application was made for 
admission to the only law school maintained by the State. 
The application was referred by the University of Mis­
souri to the President of Lincoln University, the State col­
lege for Negroes. The latter officer directed Gaines’ atten­
tion to the Missouri statute providing out of state scholar­
ship aid to Negroes for educational advantages not offered 
at Lincoln University. Whereupon Gaines instituted suit 
against the officers of the state law school, as was done in 
this case, to compel his admission to that institution. The



11

record clearly shows in the Gaines case that Gaines, like 
petitioner herein, at no time made application either to the 
State college for Negroes, its governing board or its officers 
for a legal education at Lincoln University or for out of 
State scholarship aid.

“ Q. Now you never at any time made an application 
to Lincoln University or its Curators or its officers or 
any representative for any of the rights, whatever, 
given you by the 1921 statute, namely, either to receive 
a legal education at a school to be established in Lincoln 
University or, pending that, to receive a legal education 
in a school of law in a state university in an adjacent 
state to Missouri, and Missouri paying that tuition, 
—you never made application for any of those rights, 
did you? A. No, sir.” 5

Missouri had a provision as does Oklahoma making it 
unlawful for Negroes and whites to attend the same school. 
Chapter 72, Art. 2, Section 10349 of Rev. Stat. of Mo. 1939 
provides as follows:

“ Separate free schools shall be established for the 
education of children of African descent ; and it shall 
hereinafter be unlawful for any colored child to attend 
any white school, or for any white child to attend any 
colored school.”  (R. S. 1929, Sec. 9216, Rev. Stat. Mo. 
1939).

In refusing to follow the Gaines case, the Supreme Court 
of Oklahoma sought to distinguish the two cases by assum­
ing facts not present in the record of this case and by assum­
ing facts in the Gaines case directly contrary to the record 
and decision in that case.

Although the Supreme Court of Oklahoma recognized 
that: “ There is no controversy as to the facts presented. 
Trial was held upon stipulation * * *”  (R. 38), the Court

5 Transcript of Record Gaines v. Canada et al, No. 57, October 
Term, 1938, p. 85).



12

relied upon the alleged administration of an out-of-state 
scholarship fund which does not appear at all in the stipu­
lation. Oklahoma statutes provide for such a fund, hut 
there is no evidence as to whether such fund has ever been 
used or, if so, the terms under which it has been admin­
istered.

The Oklahoma Court in seeking to distinguish the Gaines 
case uses only one alleged difference as to fact:

“  * * * Thus in Missouri there was application for 
and denial of that which could have been lawfully fur­
nished, that is, law education in a separate school, while 
in this case the only demand or request was for that 
which could not be lawfully granted, that was education 
of petitioner, a Negro, in a white school”  (R. 45).

In her Petition for Rehearing in the Oklahoma Supreme 
Court petitioner pointed out that the Court’s assumption 
of facts in the Gaines case was in error (R. 56). It should 
also be noted that the reported opinion of the Supreme 
Court of Missouri in the Gaines case stated: “ He at no time 
applied to the management of the Lincoln University fox- 
legal training.” 6

It should be pointed out that in the agreed Statement of 
Facts it is admitted :

“ That after the filing of this cause the Board of 
Regents of Higher Education, having knowledge 
thereof, met and considered the questions involved 
therein; that it had no unallocated funds in its hands 
or under its control at that time with which to open 
up and operate a law school and has since made no allo­
cation for that purpose; that in order to open up and 
operate a law school for Negroes in this state, it will 
be necessai-y for the board to either withdraw existing 
allocations, procure moneys, if the law permits, from 
the Governor’s contingent fund, or make an application

6 113 S. W. (2d) 783, at p. 789.



13

to the next Oklahoma legislature for funds sufficient to 
not only support the present institutions of higher edu­
cation but to open up and operate said law school; and 
that the Board has never included in the budget which 
it submits to the Legislature an item covering the open­
ing up and operation of a law school in the State for 
Negroes and has never been requested to do so.”

Much emphasis is placed in the opinion of the Court below 
on the fact that it is a crime under Oklahoma law to admit 
a Negro into a white school and vice versa. It is evident 
from the Missouri statute cited supra that when Gaines 
applied for admission to the University of Missouri that 
it was illegal under Missouri law for a Negro to he admitted 
to a white school.

In the face of the unquestioned duty of the State under 
the constitution to provide equal educational facilities as 
between Negroes and whites, the illegality involved in any 
breach of the State policy of educational segregation was 
not considered worthy of even passing mention by this 
Court in disposing of the constitutional question before it. 
Petitioner contends that this phase of the opinion of the 
Court below is without merit or validity and is met by this 
Court’s rule discussed supra that the admissibility of segre­
gation statutes rests wholly upon a showing of equality of 
the facilities.

An examination of the statute governing the State col­
lege for Negroes in force in Missouri at the time of the 
Gaines decision and the statute now in force in Oklahoma 
governing Langston University completes the likeness be­
tween the two cases. Argument was made when the Gaines 
case was before this Court that Gaines, rather than having 
sought admission to the University of Missouri, should 
have applied to the Board of Curators of Lincoln Univer­
sity for the establishment of a law school at Lincoln Uni­
versity. This Court found such action unnecessary since



14

there did not exist any mandatory duty on the Board of 
Curators of Lincoln University to establish a law school. 
The statute setting forth the duties of the Board are set 
forth below and were construed by the Missouri Supreme 
Court as placing no mandatory duty upon that Board. 
Section 9618, Missouri Revised Statutes 1929 provided as 
follows:

“ Board of curators authorized to reorganize. The 
board of curators of the Lincoln University shall be 
authorized and required to reorganize said institution 
so that it shall afford to the Negro people of the state 
opportunity for training up to the standard furnished 
at the state university of Missouri whenever necessary 
and practicable in their opinion. To this end the board 
of curators shall be authorized to purchase necessary 
additional land, erect necessary additional buildings, 
to provide necessary additional equipment, and to lo­
cate, in the county of Cole the respective units of the 
university where, in their opinion, the various schools 
will most effectively promote the purposes of this 
article. Laws 1921, p. 86, Sec. 3.”

In Oklahoma, Langston University is governed by the 
Board of Regents for Oklahoma, Agricultural and Mechani­
cal College. Title 70, Section 1451 Okla. Stat. 1941 states:

“ Location and purpose— The Colored Agricultural 
and Normal University of the State of Oklahoma is 
hereby located and established at Langston in Logan 
County, Oklahoma. The exclusive purpose of such 
school shall be the instruction of both male and female 
colored persons in the art of teaching, and the various 
branches which pertain to a common school education, 
and in such higher education as may be deemed advis­
able by such board and in the fundamental laws of this 
State and of the United States, and in the rights and 
duties of citizens, and in the agricultural, mechanical 
and industrial arts.”



15

This provision was amended in 1945 and now provides as 
follows:

“ Sec. 1451b. Board of Regents—Management and 
control—President and personnel.—The operation, 
management and control of Langston University, at 
Langston, Okla. is hereby vested in the Board of Re­
gents for Okla. Agr. &■ Mech. Colleges created by sec­
tion 31a, Article 6, Okla. Constitution, adopted July 11, 
1944. Said Board of Regents is hereby authorized to 
elect a president of said University and employ neces­
sary instructors, professors and other personnel, and 
fix salaries thereof, and do any and all things necessary 
to make the University effective as an educational in­
stitution for Negroes of the State.”

This Board is under a duty to “ do any and all things 
necessary to make the University effective as an educational 
institution for Negroes of the State.”  The Oklahoma 
State Regents for Higher Education were created pursuant 
to a constitutional amendment in 1941 under Art. 13A with 
overall authority over the entire educational system of the 
State as set out in the constitutional provisions.

“ There is hereby established the Oklahoma State Re­
gents for Higher Education, consisting of nine (9) 
members, whose qualifications may be prescribed by 
law. The Bd. shall consist of nine (9) members ap­
pointed by the Governor, confirmed by the Senate, and 
who shall be removable only for cause, as provided by 
law for the removal of officers not subject to impeach­
ment. Upon the taking effect of this Art. the Governor 
shall appoint the said Regents for terms of office as 
follows: one for a term of one year, one for a term of 
two years, one for a term of three years, one for a term 
of four years, one for a term of five years, one for a 
term of six years, one for a term of seven yenrs, one 
for a term of eight years, and one for a term of nine 
years. Any appointment to fill a vacancy shall be for 
the balance of the term only except as above designated,



16

the term of office of said Regents shall be nine years 
or until their successors are appointed and qualified.

“ The Regents shall constitute a co-ordinating board 
of control for all state institutions described in Section 
1 hereof with the following specific powers: (1) It shall 
prescribe standards of higher education applicable to 
each institution; (2) it shall determine the functions 
and courses of study in each institution to conform to 
the standards prescribed; (3) it shall grant degrees 
and other forms of academic recognition for completion 
of the prescribed courses in all such institutions; (4) it 
shall recommend to the State Legislature the budget 
allocations to each institution, and; (5) it shall have 
the power to recommend to the Legislature proposed 
fees for all such institutions, and any such fees shall be 
effective only within the limits prescribed by the Legis­
lature.”

The Court below found from these provisions that this 
Board has a mandatory duty to establish a law school at 
Langston University upon demand. This conclusion is 
reached by a strange construction of the law. The Court 
finds the mandate not in the language of the constitutional 
provision itself which is unambiguous and specific but in 
the segregational policy of the State.

“ The Constitution of the United States is the Su­
preme Law of the land. It' effectively prohibits dis­
crimination against any race and all state officials are 
sworn to support, obey and defend it. When we realize 
that and consider the provisions of our State Consti­
tution and Statutes as to education, we are convinced 
that it is the mandatory duty of the State Regents for 
Higher Education to provide equal educational facili­
ties for the races to the full extent that the same is 
necessary for the patronage thereof. That board has 
full power, and as we construe the law, the mandatory 
duty to provide a separate law school for Negroes upon 
demand or substantial notice as to patronage therefor.”  
(R. 50).



17

By no stretch of the imagination can this provision be 
said to create any mandatory duty except as such a con­
struction is used in an attempt to defeat petitioner’s con­
stitutional right. The court admits the Board is under a 
duty to act without formal demand upon definite informa­
tion that a Negro was available for the desired legal train­
ing.

“ The state Begents for Higher Education has 
undoubted authority to institute a law school for 
Negroes at Langston. It would be the duty of that 
board to so act, not only upon formal demand, but on 
any definite information that a member of that race 
was available for such instruction and desired the same. 
The fact that petitioner has made no demand or com­
plaint to that board, and has not even informed that 
board as to her desires, so far as this record shows, 
may lend some weight to the suggestion that petitioner 
is not available for and does not desire such instruction 

in a legal separate school”  (R. 42).

The court also, while recognizing that petitioner’s right 
to a legal education is an individual right which cannot be 
affected by the actions of members of her race in demanding 
or failing to demand a legal education, attempts to link 
petitioner’s right with demands made or needs manifested 
by other Negroes for legal training before requiring the 
State to afford redress to petitioner for failure to provide 
her with an opportunity for training in law equal to that 
afforded whites.

“ As we view the matter the state itself could not 
place complete reliance upon the lack of a formal de­
mand by petitioner. We do not doubt it would be the 
duty of the state, without any formal demand, to pro­
vide equal educational facilities for the races, to the 
fullest extent indicated by any desired patronage, 
whether by formal demand or otherwise. But it does 
seem that before the state could be accused of dis­



18

crimination for failure to institute a certain course of 
study for Negroes, it should be shown there was some 
ready patronage therefor, or some one of the race 
desirous of such instruction. This might be shown by 
a formal demand, or by some character of notice, or by 
a condition so prevalent as to charge the proper officials 
with notice thereof without any demand. Nothing of 
such kind is here shown. It is stated in oral argument 
by attorneys for petitioner that so far as this record 
shows petitioner is the first member of her race to seek 
or desire education in the law within the state, and 
upon examination we observe the record is blank on 
the point. That is not important as being controlling 
of petitioner’s individual rights, but it should be con­
sidered in deciding whether there is any actual or 
intentional discrimination against petitioner or her 
race”  (R. 41).

This is sophistical and circ-itous reasoning. There is 
clearly less basis for construing section 13A of Oklahoma 
Constitution as creating a mandatory duty in the Board 
of Regents of Higher Education to establish a law school 
at Langston than there was in finding such a compulsion on 
the Board of Curators of Lincoln University to establish 
a law school there. The opinion of the court below gives the 
definite impression that the court below recognized that 
petitioner’s rights were governed by the decision in the 
Gaines case. However, it was not prepared to accept the 
results which adherence to that decision would entail.

The Oklahoma Court’s third and final effort to distinguish 
the Gaines case was:

“  * * * Furthermore, in Missouri the out of state 
education was restricted to states adjacent to Missouri, 
while, as heretofore pointed out, such out of state educa­
tion provided for Oklahoma Negroes is not so restricted, 
the Negro pupil here has complete freedom of choice, 
and it is a matter of common knowledge that Oklahoma 
Negro students have attended schools in more than



19

twenty states extending from New York to California, 
and including the Nation’s Capitol”  (R. 45).

This line of reasoning completely ignores the agreed 
stipulation of fact:

“ . . . that there is no other law school maintained 
by the public funds of the State where the plaintiff can 
study Oklahoma law and procedure to the same extent 
and on an equal level of scholarship and intensity as in 
the School of Law of the University of Oklahoma; that 
the plaintiff will be placed at a distinct disadvantage at 
the bar of Oklahoma and in the public service of the 
aforesaid State with persons who have had the benefit 
of the unique pi'eparation in Oklahoma law and pro­
cedure offered to white qualified applicants in the School 
of Law of the University of Oklahoma, unless she is 
permitted to attend the School of Law of the University 
of Oklahoma”  (R. 23).

There is no material difference between the Gaines case 
and the instant case. The reasons advanced by the Okla­
homa Court for not following the Gaines case are clearly 
without merit. In the meantime the petitioner has already 
been deprived of at least a year’s legal training enjoyed by 
white students of similar qualifications who applied for ad­
mission at approximately the same time. The sole reason 
for this discrimination is race and color.

Conclusion

Wherefore, it is respectfully submitted that this petition 
for writ of certiorari to review the judgment of the Supreme 
Court of the State of Oklahoma should be granted and the 
judgment of the Supreme Court of Oklahoma reversed.

A mos T . H alt,,
T hurgood  M a r s h a ll , 
Attorneys for Petitioner.

R obert L. Carter ,
Of Counsel.



20

APPENDIX

Oklahoma Constitution— 1941
Article 13A. Section 2.—Oklahoma State Regents for 

Higher Education — Establishment — Membership — Ap­
pointments—Terms—Vacancy—Powers as Co-ordinating 
Board of Control.

There is hereby established the Oklahoma State Regents 
for Higher Education, consisting of nine (9) members, 
whose qualifications may be prescribed by law. The Board 
shall consist of nine (9) members appointed by the Governor, 
confirmed by the Senate, and who shall he removable only 
for cause, as provided by law for the removal of officers not 
subject to impeachment. Upon the taking effect of this 
Article, the Governor shall appoint the said Regents for 
terms of office as follows: one for a term of one year, one 
for a term of two years, one for a term of three years, one 
for a term of four years, one for a term of five years, one 
for a term of six years, one for a term of seven years, one 
for a term of eight years, and one for a term of nine years. 
Any appointment to fill a vacancy shall be for the balance 
of the term only. Except as above designated, the term of 
office of said Regents shall be nine years or until their suc­
cessors are appointed and qualified.

The Regents shall constitute a co-ordinating board of con­
trol for all state institutions described in Section 1 hereof, 
with the following specific powers: (1) it shall prescribe 
standards of higher education applicable to each institution;
(2) it shall determine the functions and courses of study in 
each institution to conform to the standards prescribed;
(3) it shall grant degrees and other forms of academic 
recognition for completion of the prescribed courses in all 
such institutions; (4) it shall recommend to the State Legis­
lature the budget allocations to each institution, and; (5) it 
shall have the power to recommend to the Legislature 
proposed fees for all such institutions, and any such fees 
shall be effective only within the limits prescribed by the 
Legislature.



21

Section 1451—Tit. 70—Okla. Stat. 1941
Location and purpose—The Colored Agricultural and 

Normal University of the State of Oklahoma is hereby 
located and established at Langston in Logan County, Okla­
homa. The exclusive purpose of such school shall be the 
instruction of both male and female colored persons in the 
art of teaching, and the various branches which pertain to 
a common school education, and in such higher education 
as may be deemed advisable by such board and in the funda­
mental laws of this State and of the United States, and in 
the rights and duties of citizens, and in the agricultural 
mechanical and industrial arts.

Section 1451b—Tit. 70—Okla. Stat. 1945
Board of Kegents—Management and control—President 

and personnel—The operation, management and control of 
Langston University, at Langston, Oklahoma, is hereby 
vested in the Board of Regents for Oklahoma Agricultural 
& Mechanical Colleges created by Section 31a, Article 6, 
Oklahoma Constitution, adopted July 11, 1944. Said Board 
of Regents is hereby authorized to elect a President of 
said University and employ necessary instructors, profes­
sors and other personnel, and fix salaries thereof, and do 
any and all things necessary to make the University effec­
tive as an educational institution for Negroes of the State.

Section 455
It shall be unlawful for any person, corporation or asso­

ciation of persons, to maintain or operate any college, school 
or institution of this state where persons of both white and 
colored races are received as pupils for instruction, and 
any person or corporation who shall operate or maintain 
any such college, school or institution in violation hereof, 
shall be deemed guilty of a misdemeanor, and upon convic­
tion thereof shall be fined not less than one hundred dollars 
nor more than five hundred dollars, and each day such 
school, college, or institution shall be open and maintained 
shall be deemed a separate offense.



22

Section 456
Any instructor who shall teach in any school, college or 

institution where members of the white race and colored 
race are received and enrolled as pupils for instruction, 
shall be deemed guilty of a misdemeanor, and upon convic­
tion thereof shall be fined in any sum not less than ten dol­
lars nor more than fifty dollars for each offense, and each 
day any instructor shall continue to teach in any such col­
lege, school or institution, shall be considered a separate 
offense.

Section 457
It shall be unlawful for any white person to attend any 

school, college or institution, where colored persons are 
received as pupils for instruction, and any one so offending 
shall be fined not less than five dollars, nor more than twenty 
dollars for each offense, and each day such person so 
offends, as herein provided, shall be deemed a distinct and 
separate offense; provided, that nothing in this article shall 
be construed as to prevent any private school, college or 
institution of learning from maintaining a separate or dis­
tinct branch thereof in a different locality.

Chapter 72—Article 2, Section 10349—Revised Statute 
Missouri—1939:

Separate schools for white and colored children—iSepa- 
rate free schools shall be established for the education of 
children of African descent; and it shall hereinafter be 
unlawful for any colored child to attend any Avhite school, 
or for any white child to attend any colored school (R. S. 
1929, Sec. 9216, Rev. Stat. Mo. 1939).

Section 9618, Mo. Rev. Stat. 1929, is as follows:
Sec. 9618. Board of curators authorized to reorganize— 

The board of curators of the Lincoln university shall be 
authorized and required to reorganize said institution so 
that it shall afford to the Negro people of the state oppor­
tunity for training up to the standard furnished at the state 
university of Missouri whenever necessary and practicable



23

in their opinion. To this end the board of curators shall 
be authorized to purchase necessary additional land, erect 
necessary additional buildings, to provide necessary addi­
tional equipment, and to locate, in the county of Cole the 
respective units of the university where, in their opinion, 
the various schools will most effectively promote the pur­
poses of this article. Laws 1921, p. 86, Sec. 3.

(2585)