Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v Wilson Motion to Dismiss or Affirm

    SU P RE M E  COURT OF THE UNITEU STATES

OCTOBER TERM, 1950

No. 436

BOARD OF SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY AND AGRICULTURAL AND ME­
CHANICAL COLLEGE, ET AL.,

Appellants,
vs.

ROY S. WILSON

A PPE A L FBOM  T H E  U N IT E D  STATES D ISTRICT COURT EOR T H E  

EASTERN DISTRICT OF LO U ISIAN A

MOTION TO DISMISS OR AFFIRM

A. P. T u r e a u d ,

T h u r g o o d  M a r s h a l l , 

Counsel for Appellee.



INDEX

Subject I ndex
Page

Motion to dismiss or affirm........................................... 1
Statement ................................................................  2
Order involved........................................................  3
Argument ................................................................  4
Conclusion................................................................  10

T abus of Cases Cited

Borges v. Loftis, 87 F. 2d 734, 301 U. S. 687, 57 S.
Ct. 789', 81 L. Ed. 1344, 301 II. S. 714, 57 S. Ct. 928,
81 L. ed. 1365................................................................  6

McLaurin v. Oklahoma, 70 Sup. Ct. 851....................... 4
Oklahoma Natural Gas Co. v. Russel, 261II. S. 290.. 6
Phillips v. United States, 312 U. S. 246, 61 S. Ct. 480,

85 L. ed. 800 ................................................................  6
Railroad Commission of Texas v. Pullman Company,

312 U. S. 496, 61 S. Ct. 643, 85 L. ed. 971.................  6
Sterling v. Constantin, 287 IT. S. 378...........................  8

Statutes Cited

Louisiana General Statutes (Dart), Section 2503.3. . 5
Oklahoma Statutes, Title 70, Section 1242...................  4
United States Code, Title 28, Section 2281.................  4, 9

— 1590



SU P R E M E  COURT OF THE UNITED STATES

OCTOBER TERM, 1950

No. 436

BOARD OF SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY AND AGRICULTURAL AND ME­
CHANICAL COLLEGE, ET AL.,

vs.
Appellants,

ROY S. WILSON

A PPE A L FROM  T H E  U N IT E D  STATES D ISTRICT COURT FOR T H E  

EASTERN DISTRICT OF LO U ISIAN A

MOTIONS OF APPELLEE TO DISMISS OR AFFIRM

These motions are filed by the appellee pursuant to para­
graph 3 of Rule 12 of the Rules of the Supreme Court, in 
response to the statement as to jurisdiction and other pa­
pers filed by the appellants, which urge the Supreme Court 
to review on appeal the judgment entered by the United 
States District Court for the Eastern District of Louisiana.



2

Statement
This case was filed in the United States District Court 

for the Eastern District of Louisiana on September 13, 
1950. The appellee on his own behalf and on behalf of 
other Negro citizens of Louisiana similarly situated sought 
a preliminary and a final injunction against appellants who 
are state officers being the Board of Supervisors of Loui­
siana State University and administrative officers of said 
institution to restrain them from enforcing an order which 
prevented the appellee and other qualified Negroes from 
attending the law school of Louisiana State University.

A statutory court of three judges was convened and ap­
pellee’s application for a temporary injunction was heard 
on September 29, 1950 upon the pleadings, depositions and 
affidavits. Appellant’s motion to dismiss the action as a 
class action was heard at the same time.

On October 7, 1950 the District Court filed its findings of 
fact and conclusions of law. Final judgment was entered on 
October 30, 1950 granting the preliminary injunction. Or­
der allowing an appeal to the Supreme Court was signed 
the same day.

There is no dispute as to the facts in this case. The 
appellee is admittedly qualified for admission to the law 
school of Louisiana State University. He applied for ad­
mission during the period other students were applying 
for the 1950-51 school year and his application was refused.

The State of Louisiana maintains separate schools for 
its Negro and white students. The State maintains an 
institution known as the Louisiana State University and 
Agricultural and Mechanical College which has been in 
existence since 1859. It also maintains Southern University 
for Negro students.

Louisiana State University has maintained a Department 
of Law since 1906. Southern University has had a law



3

school since 1947. A comparison of the two law schools ap­
pears in the depositions of the Deans of the respective 
schools.

It is conceded that there is no statute or provision of the 
Constitution of the State of Louisiana which by its terms 
denies to Negroes admission to Louisiana. State University. 
However, it is the policy of the appellant Board of Super­
visors of said institution to deny Negroes admission solely 
because of their race and color.

Louisiana State University has twelve colleges and sev­
eral divisions and is accredited by every recognized accredit­
ing agency. It accepts all qualified students except Negroes. 
Except for the law school, Southern University is a college 
and not a university.

The District Court found that “ the Law School of South­
ern University does not afford to plaintiff educational ad­
vantages equal or substantially equal to those that he would 
receive if admitted to the Department of Law of the 
Louisiana State University and Agricultural and Mechani­
cal College.”

Order Involved
It is conceded that there is no statute or provision of the 

Constitution of the State of Louisiana which by its term 
denies to Negroes admission to Louisiana State University.

Appellee and others in the class on whose behalf he sues 
were denied admission to the law school of Louisiana State 
University because of the order of the Board of Supervisors 
of said institution which provides :

“  Be It R esolved that pursuant to the laws of Louisi­
ana and the policies of this Board the administrative 
officers are hereby directed to deny admission to the fol­
lowing 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



4

Perkins, Edison George Hogan, Harry A. Wilson, An­
derson Williams. ’ ’

Argument

The Statement as to Jurisdiction filed by the appellants 
relies upon the Assignment of Errors filed therewith and 
these motions are addressed to both the Statement of Juris­
diction and the Assignment of Errors.

I

In paragraph 1 of their assignment of errors, appellants 
allege that the District Court erred in holding that as a 
matter of law it was vested with jurisdiction of appellee’s 
application for an interlocutory injunction against appel­
lants’ order which denied appellee’s admission to Louisiana 
State University and Agricultural and Mechanical College 
in the terms set forth. This allegation is without merit for 
the following reasons:

(a) Title 28 U.S.C., section 2281 provides that a three- 
judge court shall hear all cases wherein plaintiff seeks to 
enjoin “ the enforcement or execution of an order made by 
an administrative board or commission acting under State 
statutes ’ ’ on the ground of its unconstitutionality. The stat­
ute under which the board herein acted, and the board’s 
order denying admission present a procedural picture al­
most identical to that present in McLaurin v. Oklahoma,
•— U. S. —, 70 Sup. Ct. 851, decided by this Court this year. 
In the McLaurin case, supra, there was a board operating 
under a statute which provided that the board be constituted 
“ a body corporate . . . ”  and had “ all the powers neces­
sary or convenient to accomplish the objectives and perform 
the duties prescribed by law.”  Title 70 Okla. Stat., section 
1242. The statute under which appellant board herein oper­
ates provides that it “ shall constitute a body corporate and



5

Lave power and authority to perform all acts for the bene­
fit of the University which are incident to bodies corporate”  
and “ to adopt and alter all rules and regulations which may 
be deemed necessary or convenient to accomplish the objec­
tives and perform the duties prescribed by law . .
Louisiana General Statutes (Dart) Section 2503.3.

Operating* under the Oklahoma statute, the Oklahoma 
State Regents issued the following order:

“ That the Board of Regents of the University of 
Oklahoma authorize and direct the President of the 
University, and the appropriate officials of the Univer­
sity, to grant the application for admission to the Grad­
uate College of G. W. McLaurin in time for Mr. Mc- 
Laurin to enroll at the beginning of the term, under 
such rules and regulations as to segregation as the 
President of the University shall consider to afford to 
Mr. G. W. McLaurin substantially equal educational 
opportunities as are afforded to other persons seeking 
the same education in the Graduate College and that the 
President of the University promulgate such regula­
tions.”

Almost parallel thereto is the order of the Board of 
Supervisors of Louisiana State University and Agricul­
tural and Mechanical College, which states:

“ B e It R esolved 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 Colum­
bus Simon, Willie Cleveland Patterson, Charles Ed­
ward Coney, Joseph II. Miller, Jr., Roy Samuel Wilson, 
Lloyd E. Milburn, Lawrence Alvin Smith, Jr., James 
Lee Perkins, Edison George Hogan, Harry A. Wilson, 
Anderson Williams.”

The order herein involved is of the same type as the order 
in the McLaurin case. The authorizing statutes in the



two cases are almost identical. This assignment of error 
is therefore without merit.

II

The appellants other assignments of errors are likewise 
without merit.

(a) It is alleged that the Court was without jurisdiction 
“ because no state statute is being attacked.”  This conten­
tion was answered by the District Court in its citation of 
Oklahoma Natural Gas Company v. Russel, 261 U. S. 290, 
In that case, Mr. Justice Holmes wrote:

‘ ‘ So, if the section is construed with narrow precision 
it may be argued that the unconstitutionality of the 
order is not enough. But this court has assumed re­
peatedly that the section was to be taken more broadly 
. . . We mention the matter simply to put doubts
to rest.”  (261 U. S. at 292)

(b) The assignment of error then asserts that the order 
attacked herein is not “ an order made by an administrative 
board or commission acting under State statutes such as is 
cognizable by a three-judge court in view of the decisions in 
the cases of Railroad Commission of Texas v. Pullman 
Company, 312 U. S. 496, 61 S. Ct. 643, 85 L. Ed. 971; Phil­
lips v. United States, 312 U. S. 246, 61 S. Ct. 480, 85 L. Ed. 
800 and Borges v. Loftis, 87 F. 2d 734, 301 U. S. 687, 57 
S. Ct. 789, 81 L. Ed. 1344, 301 IT. S. 714, 57 Sup. Ct. 928, 
81 L. Ed. 1365.”  Appellee submits that the cases in no way 
control this case. The Railroad Commission case, first did 
not determine the jurisdiction or lack thereof, of a three- 
judge court. It was a case which decided that equity, in its 
discretion should not enter the field of federal-state rela­
tions until after the resolution of an ambiguous state statute 
by state courts. Moreover, the ambiguity in question left



7

undecided whether the Railroad Commission had the power 
to issue the order under attack:

“ It is common ground that if the order is within the 
Commission’s authority its subject matter must he in­
cluded in the Commission’s power to prevent ‘ unjust 
discrimination . . . and to prevent any and all
other abuses’ in the conduct of railroads. Whether 
arrangements pertaining to the staff of Pullman cars 
are covered by the Texas concept of ‘ discrimination’ 
is far from clear. What practices of the railroads may 
be deemed to be ‘ abuses’ subject to the Commission’s 
correction is equally doubtful. Reading the Texas stat­
utes and the Texas decisions as outsiders without 
special competence in Texas law, we would have little 
confidence in our independent judgment regarding the 
application of that law to the present situation. The 
lower court did deny that the Texas statutes sustained 
the Commission’s assertion of power. And this repre­
sents the view of an able and experienced circuit judge 
of the circuit which includes Texas and of two capable 
district judges trained in Texas law. Had we or they 
no choice in the matter but to decide what is the law 
of the state, we should hesitate long before rejecting 
their forecast of Texas law. But no matter how sea­
soned the judgment of the district court may be, it 
cannot escape being a forecast rather than a determi­
nation. The last word on the meaning of Article 6445 
of the Texas Civil Statutes, and therefore the last 
word on the statutory authority of the Railroad Com­
mission in this case, belongs neither to us nor to the 
district court but to the supreme court of Texas.”  (312 
U. S. at 499)

The case was then remanded to the same three-judge district 
court before which it had been brought with instructions for 
said court to retain jurisdiction until resolution of the 
ambiguity by state courts. This action in itself shows that 
the Pullman case did not define any situation in which 
a three-judge court does not have jurisdiction.



8

Herein there is no question of the Board’s power to issue 
the order excluding appellee. The statute under which the 
board operates is clear, and neither party has questioned 
the power which it confers.

The Phillips case, supra, merely decided that the gover­
nor of Oklahoma, acting in his gubernatorial capacity as 
“ Commander in Chief of the Militia of the State”  was not 
enforcing a statute, nor acting as an administrative board, 
nor enforcing the orders of such board, and was therefore 
not subject to attack via three-judge court procedure. Con­
cerning alleged jurisdiction stemming from a statute, the 
opinions stated:

“ In other words, it seeks a restraint not of a statute 
but of an executive action.”  (312 U. S. at 252)

On the jurisdictional question insofar as a three-judge 
court was concerned the opinion distinguished the case 
from the case of Sterling v. Constantin, 287 U. S. 378 wherein 
it was stated:

‘ ‘ The Governor was sought to be restrained as part 
of the main objective to enjoin ‘ the execution of an 
order made by an administrative . . . commission,’ 
and as such was indubitably within § 268.”  (Ibid at 
253)

The third case which appellants cite is Borges v. Loftis, 
supra. The Borges case involved a county ordinance re-: 
quiring that cattle should be subjected to a test for tuber­
culosis, and that tubercular cattle should be slaughtered. 
The Court of Appeals held that the action was premature. 
The Court stated:

“ . . . until there is an adverse finding as to the 
health of some or all of their cattle, appellants who 
alleged that their cattle are free from disease cannot 
involve the aid of the court upon the assumption that



9

a well-recognized scientific test required by the ordi­
nance will show such healthy cattle to be diseased.”  
(87 F. 2d at 735) -

The court also stated that the county ordinance there in 
issue was not a state statute within the meaning of what 
is now Title 28 U.S.C. § 2281.

The order in this case, and the board issuing it, are essen­
tially similar to the order and board in McLaurin v. Okla­
homa, supra, as hereinbefore stated.

I l l

The other assignments of error are directed: (a) to the 
finding that the State of Louisiana “ does not afford to 
the plaintiff educational advantages equal to those he 
would receive if admitted to the Department of Law of 
Louisiana State University and Mechanical College; ’ ’ and 
(b) to the conclusion of law that the enforcement of the 
order involved “ denies a right guaranteed to plaintiff by 
the Fourteenth Amendment and that enforcement of the 
order, pending- final hearing, would inflict irreparable dam­
ages upon the plaintiff.

The finding that the law school education offered the 
appellee in the segregated law school for Negroes was not 
equal to that offered all other qualified applicants to Loui­
siana State University was in direct conformity with the 
decision of the Supreme Court in the case of Sweatt v. 
Painter.

With this finding of fact there can be no doubt that such 
inequality denies to the appellee the equal protection of 
the laws guaranteed him by the Fourteenth Amendment.



10

Conclusion

W herefore, appellee respectfully moves that the within 
appeal be dismissed or that the judgment of the District 
Court of the United States for the Eastern District of Loui­
siana be affirmed.

A. P. T ureattd,
612 Iberville St.,
New Orleans, La., 

T hurgood Marshall,
20 West 40th Street,
New York, New York, 
Counsel for Appellees.

Dated: November 13, 1950.

(1590)



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