Booker v. Tennessee Board of Education Brief for Appellants

    United States (uuul at Appeals
For the Sixth C ircuit

No. 12,775

RUTH BOOKER, An Infant, By Dovie Booker, Her Mother and Next Friend, 
NELLIE PEOPLES, An Infant, By Manie Peoples, Her Mother And 
Next Friend, HARDEST KNOWLES VAN HOOK, An Infant, 
By Hardest Harris, Her Mother and Next Friend, And ELIJAH NOEL, 
JOSEPH McGHEE, JR.,

P laintiffs-Appellants,
vs.

STATE OF TENNESSEE BOARD OF EDUCATION, QUILL E. COPE, 
STATE COMMISSIONER OF EDUCATION AND CHAIRMAN 
STATE BOARD OF EDUCATION, ERNEST C. HALL, NORMAN 
FROST, EDWARD L. JENNINGS, W. R. LANDHUM, CHESTER 
PARHAM, FERDINAND POWELL, ROBERT P. WILLIAMS, 
J. HOWARD WARD, SAM WILSON, MEMBERS OF THE STATE 
BOARD OF EDUCATION OF TENNESSEE, J. M. SMITH, PRESI­
DENT OF MEMPHIS STATE COLLEGE, R. P. CLARK, REGIS­
TRAR OF MEMPHIS STATE COLLEGE,

Defendants-Appellees.

A ppeal F rom the U nited States D istrict Court for the W estern 
D istrict of Tennessee, W estern D ivision

BRIEF FOR APPELLANTS

H. T. LOCKARD,
322y2 Beale Avenue, 

Memphis, Tennessee,
ROBERT L. CARTER, 
THURGOOD MARSHALL, 

107 West 43rd Street, 
New York, New York,

J. F. ESTES,
B. L. HOOKS,
A. W. WILLIS, JR.,
Z. ALEXANDER LOOBY,

of Counsel.

Counsel for Appellants,

Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320

JAM ES M. NAI3RIT, III



1

Statem ent of Questions Involved

1. Did the court below have jurisdiction to hear and de­
termine this cause or was it a matter which should 
have been heard and determined by a three-judge court 
pursuant to Title 28, United States Code, Sections 2281 
and 2284.
The court below answered the question No.
Appellants contend the answer should have been Yes.

2. Are appellants entitled to an order requiring their im­
mediate admission to Memphis State College?
The court below answered the question No.
Appellants contend the answer should have been Yes.





Ill

TABLE OF CONTENTS
PAGE

Statement of Questions Involved ............................. i
Statement of Facts ..................................................  1

Argument ...................   7

I—Did the court below have jurisdiction to hear 
and determine this cause or was it a matter 
which should have been heard and determined 
by a three-judge court pursuant to Title 28,
United States Code, Sections 2281 and 2284.. 7

II—Are appellants entitled to an order requiring 
their immediate admission to Memphis State 
College? ..........................................................  Ip

Relief .......................................................................... 14

Conclusion ................................................................  15

T able of Cases

Bell v. Rippy, 133 F. Supp. 811 (N. D. Tex. 1955) .. 8
Bolling v. Sharpe, 347 U. S. 497 ............................... 7
Brown v. Board of Education, 347 U. S. 483 ............. 7
Brown v. Board of Education, 349 U. S. 294 __  12
Chapman v. Boynton, 4 F. Supp. 43 (D. C. Kans.

1933) ......................................................................  8>9

Ex Parte Metropolitan Water Co., 220 U. S. 539 .. 8, 9
Ex Parte Poresky, 290 U. S. 3 0 .........................  9
Frazier v. Board of Trustees, 133 F. Supp. 598 

(M. D. N. C. 1955) ...............................................7, 9,12
Grant v. Taylor, Civil Action No. 6404 (W. D. Okla.

1955), unreported..................................................  12



IV

PAGE

Gray v. Board of Trustees of University of Tennes­
see, 342 U. S. 517 ..................................................  12

Lucy v. Adams, — U. S. —, Oct. 10, 1955 ................  12
McKissick v. Carmichael, 187 F. 2d 949 (CA 4th

1951), cert, denied, 341 U. S. 591 .........................  11
McLaurin v. Oklahoma State Regents, 339 U. S. 637 11
Mitchell v. Board of Regents of the University of 

Maryland, Docket No. 16, Folio 126 (Baltimore 
City Court 1950), unreported............................... 12

Norumbega Co. v. Bennett, 290 U. S. 598 ................  8,, 9
Parker v. University of Delaware, 75 A. 2d 225 

(Del. 1950) .............................................................  11
Robinette v. Campbell, 115 F. Supp. 699 (N. D. Atl.

1951), 342 U. S. 940 ............................................... 9
Sipuel v. Board of Regents, 332 U. S. 641..............  11
State of Florida ex rel. Hawkins v. Board of Control,

80 So. 2d 20 (1955) ............................................... 12
Swanson v. University of Virginia, Civil Action

No. 30 (W. D. Va. 1950), unreported.............. .. 12
Sweatt v. Painter, 339 U. S. 629 ..............................  11
Troullier v. Proctor, Civil Action No. 3842 (E. D.

Okla. 1955), unreported ........................................ 12
Tureaud v. Board of Supervisors, 116 F. Supp. 248 

(E. D. La. 1953), reversed, 207 F. 2d 807 (CA 5th 
1953), vacated and remanded, 347 U. S. 971, orig­
inal judgment reinstated by the district court and 
affirmed on appeal, 225 F. 2d 434, reversed on re­
hearing, 226 F. 2d 714, judgment on rehearing 
vacated and hearing ordered en banc, and the orig­
inal judgment of the Court of Appeals affirming 
the judgment of the lower court reinstated, — F.
2d —, Jan. 6, 1956 ...............................................8,10,12



V

PAGE

Unexcelled Chemical Co. v. United States, 345 U. S.
59 ................................................................................ 10

United Drug Co. v. Graves, 34 F. 2d 808 (M. D. Ala.
1929) ......................................................................  8,9

United States v. Congress of Industrial Organiza­
tions, 335 U. S. 106.....................................................  10

United States v. Universal C.I.T. Credit Corp., 334 
U. S. 218 ................................................................. 10

Wells v. Dyson, Civil Action No. 4679 (E. D. La.
decided Apr. 2, 1955), unreported.............................  12

Wells v. Walker, — F. Supp. — (W. D. Ky. 1955) 8
White v. Smith, Civil Action No. 1616 (W. D. Texas,

decided July 28, 1955), unreported.......................  12
Whitmore v. Stillwell, — F. 2d — (CA 5th decided

Nov. 3, 1955) ........................................................ 12
Wichita Falls Junior College District v. Battle, 204 

F. 2d 632 (CA 5th 1953), cert, denied, 347 U. S. 974 11
Wilson v. Board of Supervisors, 92 F. Supp. 986

(E. D. La. 1950), aff’d 340 U. S. 906 .................. 11
Wilson v. City of Paducah, 100 F. Supp. 116 (W. D.

Ky. 1951) ...............................................................  12

O ther A uthorities

Hart and Wechsler, “ The Federal Courts and the 
Federal System,’’ 852 (1953) ................   9

Johnson and Washington, “ One or Three—Which 
Shall It Be?” 1 How. L. Rev. 194, 218 (1955) . . . . 9



Im ttb IS'tate ( ta r t  of Appeals
For the Sixth C ircuit 

No. 12 ,775

-------------------o-------------------
R u t h  B ooker, An Infant, By Dovie Booker, Her Mother 

And Next Friend, N e l l ie  P eo ples , An Infant, By Manie 
Peoples, Her Mother And Next Friend, H ardest 
K n o w les  V an  H ook, An Infant, By Mardest Harris, 
Her Mother And Next Friend, And E l ij a h  N o el , J o seph  
M cG h e e , J r .,

Plaintiffs-Appellants, 
vs.

S tate  oe T e n n e sse e  B oard of E d ucation , Q u il l  E . C o pe , 
S tate  C o m m issio n er  of E ducation  and  C h a ir m a n  S tate 
B oard of E d ucation , E r n e st  C. H all , N orm an  F rost, 
E dward L . J e n n in g s , W . R . L a n d r u m , C h e st e r  P ar­
h a m , F erdinand  P o w ell , R obert P . W il l ia m s , J. H oward 
W ard, S am  W il so n , M em bers  of t h e  S tate B oard of 
E ducation  of T e n n e s s e e , J. M . S m it h , P r esid en t1 of 
M e m p h is  S tate C ollege, R . P . Cla r k , R egistrar of 
M e m p h is  S tate C ollege,

Defendants-Appellees.

A ppe a l  F rom  t h e  U n ited  S tates D istrict  Court for  t h e  
W estern  D istrict  of T e n n e s s e e , W estern  D iv isio n

-------------------o-------------------

BRIEF FO R A PPELLANTS

Statem ent of Facts

Appellants are American citizens of Negro origin and 
residents of Memphis, Tennessee. Each possesses all the 
requisite qualifications for admission to Memphis State 
College (See 82a-85a). Each was denied admission thereto 
solely because of race and color. Appellants, thereupon,



2

brought this action in the court below seeking a declaratory 
judgment vindicating their right to be admitted to the 
College, and an injunction to restrain the enforcement of 
Section 12, Article 11, of the Constitution of Tennessee 
and Sections 11395, 11396 and 11397 of the Code of Ten­
nessee on the ground that these constitutional and statu­
tory provisions are in violation of the Constitution of the 
United States. Jurisdiction of the court below was invoked 
under Title 28, United States Code, Section 2281, as well as 
under Sections 1331 and 1343 (3a-10a).

On June 21, 1955, appellees filed their answer alleging a 
good faith attempt “ to comply with the decree of the 
Supreme Court of the United States” by adopting a reso­
lution providing for the transition from a segregated sys­
tem to a nonsegregated system in all the state colleges, 
institutions and normal schools in the following manner:

1. 1955-1956—Qualified Negro applicants to be admit­
ted at the graduate level at Memphis State College, 
Middle Tennessee State College, East Tennessee 
State College and Austin Peay State College, and 
qualified white students to be admitted to Tennessee 
Agriculture and Industrial State University for 
Negroes at Nashville.

2. 1956-1957—Qualified Negroes to be admitted to the 
graduate and senior classes at the four institutions 
named and to the Tennessee Polytechnic Institute at 
Cooksville, and white students to be admitted to the 
graduate and senior classes at Tennessee Agriculture 
and Industrial State University for Negroes at 
Nashville.

3. 1957-1958—Graduate, senior, junior and sophomore 
classes at the above-named institutions will be opened 
to all persons without regard to race or color.



3

4. 1959-60—Graduate, senior, junior’, sophomore and 
freshman classes at the above-named institutions 
will be opened to all persons without regard to race 
or color.

This program was to be inoperative until state laws 
declaring segregation had been held invalid in an appro­
priate court action, and the decision of the United States 
Supreme Court in the School Segregation Cases was held 
applicable to state colleges and universities in the State 
of Tennessee. (The text of this resolution is set out at 
15a.)

Appellees contend that a policy of unrestricted admis­
sion of Negroes to Memphis State College “ would over-tax 
the physical facilities of the plant, ’ ’ basing this conclusion 
on statistics showing the annual number of Negro and 
white high school students graduating from Shelby County, 
the county in which Memphis State College is located, and 
supported their plan for gradual desegregation beginning 
at the graduate level on the theory that the transition 
would be easier if they admitted the more mature graduate 
students before putting into practice a nondiscriminatory 
policy involving younger students.

Appellants filed a motion for judgment on the plead­
ings and, in the alternative, a motion for summary judg­
ment on the ground that appellees had failed to state a 
legal defense to appellants’ claim, and that there were no 
genuine issues of fact between the parties (23a). Inter­
rogatories were served on the appellees seeking to deter­
mine the present total enrollment and that of the various 
colleges and departments at Memphis State College and 
the number of nonresident students enrolled in the college 
(19a). In the answer to these interrogatories (21a, 22a) 
it was disclosed that, in 1955, 143 out-of-state students and 
1,079 non-residents of Memphis had been enrolled in the 
college; that 50 out-of-state first year students and 30



4

out-of-state second year students were presently attend­
ing the college.

A hearing was held in the court below on October 17, 
1955. At the outset the court ruled that it had jurisdiction 
to hear and determine the cause without the convening of 
a three-judge court. (This appellants contend was error.) 
The court further denied appellants’ motion for judgment 
on the pleadings and, in the alternative, motion for summary 
judgment and ordered a hearing on the merits. (This 
appellants also contend was in error.)

As witness, the state called Dr. Quill Cope, Chair­
man of the State Board of Education, who testified (24a- 
52a) concerning the number of Negro and white high 
school graduates from the counties from which Memphis 
State College normally drew its student body; that 
“ unbridled” integration would overtax the physical facili­
ties at Memphis State College; that he didn’t know the 
exact percentage of students from these counties who went 
to state colleges rather than private colleges or institu­
tions outside the state; that the school admitted out-of-state 
students; that the only reason for the denial of admission 
to these students was their race and color.

Dr. J. Millard Smith, the next witness for the appellees, 
is the President of Memphis State College (53a-77a). He 
testified concerning the need of the school to maintain 
a certain student-teacher ratio in order to keep its accredita­
tion; that if 27% of the Negro high school graduates of 
Shelby County attended Memphis State College, it would 
be over-crowded and, therefore, in danger of losing its 
accreditation; that the institution admitted out-of-state 
white students since appellants had applied for admission, 
and the College wanted to continue this policy to avoid its 
becoming a provincial school.

W. E. Turner, Coordinator of the Division of Instruc­
tions of the Tennessee Department of Education and



5

Director of the Division of Negro Education, was the third 
and final witness for the defense (77a-82a). He testified 
concerning a questionnaire sent to approximately 35 
principals of colored high schools in Western Tennessee. 
Of this number he had received replies from 16 which 
showed that out of some 674 graduates of Negro high schools 
in that part of the state, 212 went to college.

(Appellants contend that all the testimony offered by 
appellees was irrelevant and did not meet the issues raised 
in their complaint.)

Appellees then orally stipulated that appellants, Mardest 
Knowles Van Hook, Ruth H. Booker, Joseph McGhee, Jr. 
and Nellie Peoples met the scholastic qualifications for 
admission to Memphis State College (82a-84a), and appel­
lant, Elijah J. Noel, testified concerning his scholastic 
qualifications showing that he had graduated from a high 
school in Marion, Arkansas, which was accredited, and 
that he had done some college work at Howard University 
in Washington, D. C., and at LeMoyne College in Memphis 
(84a-85a). That he met the scholastic qualifications for 
admission to Memphis State College was not challenged 
by appellees.

The court then proceeded to dispose of this case on the 
merits by ruling from the bench. The court ruled that 
the appellees’ plan, which provided for the elimination of 
segregation beginning in 1955-1956 at the graduate school 
level and ending in 1959-60 with the opening of fresh­
man classes to Negro applicants, constituted good faith 
compliance with the requirements set forth by the Supreme 
Court in its May 31, 1955 decision in the School Segre­
gation Cases (Brown v. Board of Education, 349 U. S. 
294); that the evidence disclosed that to order immediate de­
segregation was not advisable and was impracticable and 
that the plan which appellees had adopted was in the best 
interest of all parties concerned (85a-89a).



6

On November 22, the court entered findings of fact and 
conclusions of law which found that the Tennessee State 
Board of Education was attempting to promptly comply 
with the decision of the Supreme Court of the United 
States and was not seeking to evade or circumvent that 
decision; that the abrupt admission of Negro students 
might endanger the accreditation of the school; that in 
view of the fact that segregation had existed since 1870, 
the gradual plan approved by the Board offered the 
“ greater possibility of eventual complete acceptance of the 
situation by members of both races than would an abrupt 
transition at present. ’ ’

The court found that the appellees were proceeding 
with all deliberate speed, and that the time provided by 
the plan was absolutely necessary to carry out the decision 
of the Supreme Court. The court struck down the con­
stitutional and statutory provisions requiring segregation 
in public schools and held that the invalidity of these laws 
was fully evident and that the convening of a three-judge 
court was not necessary for their enforcement to be en­
joined as unconstitutional (91a-92a). The court found 
that the plan devised by the Board was reasonable and 
would lead to orderly and peaceful integration and directed 
the Board to proceed to operate pursuant to the plan at once 
(93a-94a).

The court entered a final decree denying the appellants ’ 
application for a permanent injunction. Appellants there­
upon filed their notice of appeal on December 2, 1955. On 
January 10, 1955, their cause was docketed in this Court.



7

ARGUM ENT

I

Did the court below have jurisdiction to hear and 
determ ine this cause or was it a m atter which should 
have been heard  and determ ined by a three-judge 
court pursuant to T itle 28, U nited States Code, Sec­
tions 2281 and  2284.

T h e  c o u r t  b e lo w  a n s w e rs  th e  q u e s tio n  No.
A p p e lla n ts  c o n te n d  th e  a n s w e r  sh o u ld  h a v e  b e e n  T es.

There is a conflict of authority on this question at the 
present time, but appellants are of the opinion that a three- 
judge court was required in this case. Title 28, United 
States Code, Section 2281 requires the convening of a three- 
judge court when an injunction is sought to restrain the 
enforcement of a state policy on the ground of its unconsti­
tutionality. The language of the statute is clear and unam­
biguous and, if controlling, it is evident that in this case 
the convening of a three-judge court is required.

This was the approach of the court in Frazier v. Board 
of Trustees, 133 F. Supp. 589' (M. D. N. C. 1955) in holding 
that a three-judge court had jurisdiction to enjoin the 
Board of Trustees of the University of North Carolina 
from refusing to admit Negroes to the University on the 
grounds of race and color.

There can be little doubt, in view of the decision of the 
Supreme Court of the United States in the School Segrega­
tion Cases (Brown v. Board of Education, 347 U. S. 483; 
Bolling v. Sharpe, 347 U. S. 497), that segregation in the 
field of public education is invalid and that state statutes 
requiring or seeking to enforce this policy are unconstitu­
tional. On the other hand, some courts have taken the 
view that since the law is so clear there is no need to con-



8

vene a three-judge court merely to determine what must 
be determined in any event—that the state law is invalid. 
This apparently was the approach in the instant case, in 
Wells v. Walker, — F. Supp. — (W. D. Ky. 1955); Bell v. 
Ripp, 133 F. Supp. 811 (N. D. Tex. 1955). And see Tureaud 
v. Board of Supervisors, 116 F. Supp. 248 (E. D. La. 1953), 
reversed, 207 F. 2d 807 (OA 5th 1953), vacated and re­
manded, 347 U. S. 971, original judgment reinstated by the 
district court and affirmed on appeal, 225 F. 2d 434, reversed 
on rehearing, 226 F. 2d 714, judgment on rehearing vacated 
and hearing ordered en banc, and the original judgment of 
the Court of Appeals affirming the judgment of the lower 
court reinstated, — F. 2d —, January 6, 1956.

Practical considerations would seem to favor this ap­
proach. It certainly would seem to constitute an unwar­
ranted burden on the federal judiciary and on the appel­
late docket of the United States Supreme Court to require 
the convening of a three-judge court in every case where 
a Negro applicant seeks injunctive relief against the 
enforcement of an obviously unconstitutional state statute 
requiring segregation in education. Support for this view 
is seemingly based upon the established right of a single 
judge to dismiss a complaint seeking to enjoin the enforce­
ment of a state law when no substantial question of consti­
tutionality is involved. See United Drug Co. v. Graves, 34 
F. 2d 808 (M. D. Ala., 1929); Chapman v. Boynton, 4 F. 
Supp. 43 (D. C. Kans. 1933); Norumbega Co. v. Bennett, 
290 U. S. 598. These cases appear to be at odds with Ex 
Parte Metropolitan Water Co., 220 U. S. 539, which has 
never been overruled or modified, in which the Supreme 
Court held that a single judge, to whom application for 
an interlocutory injunction was presented, had no authority 
to pass upon that application without the assistance of 
two other judges, even though he was of the opinion that 
the claim of unconstitutionality was untenable.



9

The apparent contradiction between Norumbega, United 
Drug Co., Chapman and Metropolitan Water Co. was ap­
parently reconciled by the Supreme Court in Ex Parte 
Poresky, 290 U. S. 30. In that case the language would 
seem to indicate that the sanctioning of a dismissal by a 
single judge in an action, where an application for injunc­
tive relief is made, is no authority to sustain the jurisdic­
tion of a single judge to enter an injunction, where the 
unconstitutionality of a statute is free of doubt. But com­
pare Tureaud v. Board of Supervisors, supra. In Poresky, 
the Supreme Court held that before a federal judge under­
takes to proceed in a case, he must first ascertain whether 
he has jurisdiction, and if no substantial federal question 
is present, requisite federal jurisdiction is lacking, and he is 
required to dismiss the complaint. It does not follow, how­
ever, that because a single judge has authority sitting alone 
to dismiss, where no substantial federal question exists, that 
he also has authority to enjoin the enforcement of a state’s 
policy, even where the unconstitutionality of that policy is 
free of doubt.

Admittedly it is difficult to differentiate between a ruling 
on the merits and a ruling on jurisdiction for the two are 
perhaps inextricably entwined. See Johnson and Wash­
ington, “ One or Three—Which Shall It Be?” 1 How. L. 
Rev. 194, 218 (1955), but nonetheless this is the stated 
ground on which the earlier cases rested. There is some 
support for the view that the legislative history of the 1942 
amendment to Section 2284 was intended to overrule even 
the exception made in the Poresky case. See Hart and 
Wechsler, “ The Federal Courts and the Federal System,” 
852 (1953), but that exception has been recently affirmed in 
Robinette v. Campbell, 342 TJ. S. 940. The district court 
dismissed the complaint following the theory in Ex Parte 
Poresky, 115 F. Supp. 699 (N. D. 111. 1951) and the motion 
for leave to file a petition for writ of mandamus was 
denied.



10

It should be pointed out that arguments of policy and 
of legislative history are relevant in construing a statute 
only when there is ambiguity in the legislative language 
which must be resolved, Unexcelled Chemical Co. v. United 
States, 345 U. S. 59. Where the meaning of a statute is 
not clear on its face, the purpose of Congress is a dominant 
factor in determining its meaning. See United States v. 
Congress of Industrial Organizations, 335 U. S. 106; United 
States v. Universal C.I.T. Credit Corp., 334 U. S. 218, 221, 
222, where Mr. Justice Frankfurter speaking for the Court 
said:

We may utilize, in construing a statute not unam­
biguous, all the light relevantly shed upon the words 
and the clause and the statute that express the pur­
pose of Congress.

# *  #

Instead of balancing the various generalized 
axioms of experience in construing legislation, regard 
for the specific history of the legislative process that 
culminated in the Act . . . affords more solid ground 
for giving it appropriate meaning.

Here, despite the heavy burden which the convening of 
a three-judge court undoubtedly places upon the federal 
judiciary, the language of the statute is clear that where 
injunctive relief is sought against the enforcement of a 
state statute on the grounds of its unconstitutionality that 
a three-judge court must be convened. Hence, the propriety 
of the court below in striking down the statute of Tennessee 
on the ground of unconstitutionality is not free from doubt. 
Moreover, the procedural uncertainty which may beset an 
applicant seeking admission to a state school from which 
he has been barred by state law, when a judge does not 
follow the mandate of Sections 2281 and 2284 (see Tureaud 
case, supra), makes it mandatory that the statute’s language 
be followed until an authoritative pronouncement by the 
Supreme Court of the United States resolves the question.



11

1 or these reasons, we submit that the court below was 
incorrect in proceeding to dispose of this case on the merits 
without first convening a three-judge court. While we 
recognize that this Court cannot deal with the question with 
finality, we raise it here since it must be disposed of first 
before this Court disposes of this appeal on its merits.

I I

A re appellants en titled  to an order requiring their 
im m ediate adm ission to M emphis S tate College?

T h e  c o u r t  b e lo w  a n s w e re d  th e  q u e s tio n  No.
A p p e lla n ts  c o n te n d  th e  a n s w e r  sh o u ld  h a v e  b e e n  F es .

Appellants are entitled to an order requiring their im­
mediate admission to Memphis State College. The right 
to equal educational opportunities is personal and present. 
Sipuel v. Board of Regents, 332 U. S. 641; Sweatt v. Painter, 
339 U. S. 629; McLaurin v. Oklahoma State Regents, 339 
IT. S. 637.

This is a simple case of qualified Negro applicants 
seeking to attend a state college formerly restricted to 
white persons solely on the basis of race and color. No 
complicated legal or administrative factors are present 
with winch the University officials have to deal in order 
to vindicate the rights of these applicants. Such right 
to immediate admission at the higher educational level 
has been upheld consistently, even at the time when courts 
considered the “ separate hut equal” doctrine governed 
disposition of the cases. McKissick v. Carmichael, 187 F. 
2d 949 (CA 4th 1951), cert, denied, 341 U. S. 591; Wilson 
v. Board, of Supervisors, 92 F. Supp. 986 (E. D. La. 1950), 
aff’d, 340 U. S. 906; Parker v. University of Delaware, 75 
A. 2d 225 (Del. 1950); Wichita Falls Junior College Dis­
trict v. Battle, 204 F. 2d 632 (CA 5th 1953), cert, denied,



12

347 U. S. 974; Wilson v. City of Paducah, 100 F. Supp. 116 
(W. D. Ky. 1951); Mitchell v. Board of Regents of the Uni­
versity' of Maryland, Docket No. 16, Folio 126 (Baltimore 
City Court 1950) unreported; Swanson v. University of 
Virginia, Civil Action 30 (W. D. Va. 1950) unreported; 
and see Gray v. Board of Trustees of University of Ten­
nessee, 342 IT. S. 517.

Since the decision of the Supreme Court in the School 
Segregation Cases this approach has been followed in the 
overwhelming majority of cases. See Lucy v. Adams, 
— U. S. —, Oct. 10, 1955; Frazier v. Board of Trustees, 
supra; Tureaud v. Board of Supervisors, supra; Wells 
v. Dyson, Civil Action No. 4679 (E. D. La. decided Apr. 2, 
1955) unreported; White v. Smith, Civil Action No. 1616 
(W. D. Texas, decided July 28, 1955) unreported; Grant v. 
Taylor, Civil Action, No. 6404 (W. D. Okla. 1955) un­
reported; Whitmore v. Stillwell, — F. 2d — (CA 5th de­
cided Nov. 3, 1955); Troullier v. Proctor, Civil Action No. 
3842 (E. D. Okla. 1955) unreported.

Only in this case and in State of Florida ex rel Hawkins 
v. Board of Control, 80 So. 2d 20' (1955), has there been a 
departure from the granting of immediate relief. Reduced 
to its bare essentials, the decision below means that a Negro 
seeking equal education opportunities at the higher educa­
tion level is now in a more adverse position since the decision 
in the School Segregation Cases than he was when the 
“ separate but equal” doctrine was considered controlling. 
This, we respectfully submit, could not have been the in­
tention of the Supreme Court of the United States.

The court below relied upon the decision of the Supreme 
Court in Brown v. Board of Education, 349 U. S. 294, in 
which the formula for the granting of relief at the public 
school level was laid down. We submit that the formula 
has no relation to the instant case. In that case the court 
was dealing with questions of the reorganization of



13

an entire public school system in which school authorities 
had to concern themselves with redistricting of schools, 
with reassignment of teachers, with reassignment of pupils 
on a mass basis in order to make the transition from a 
system of segregation to one free of racial discrimination. 
In that instance the Court indicated that the school authori­
ties might have to consider problems “ related to adminis­
tration, arising from the physical condition of the school 
plant, the school transportation system, personnel, revi­
sion of school districts and attendance areas into compact 
units to achieve a system of determining admission to 
the public schools on a nonraeial basis and revision of local 
laws and regulations which may be necessary in solving the 
foregoing problems. ’ ’

The Court further indicated that courts had authority 
to “ consider the adequacy of any plan” the school officials 
may propose “ to meet these problems and to effect a 
transition to a racially nondiscriminatory school system.” 
Fo such factors are present and no such problems are in 
the instant case. All the testimony in support of the 
appellees’ plan relate to abstract hypotheses which would 
render difficult the admission of Negroes to the Memphis 
State College. There was no showing that, in fact, a large 
number of Negroes would apply to Memphis State College 
and, therefore, unduly burden the physical facilities of 
the plant.

The school admits out-of-state white students, and the 
interrogatories disclosed that at the present time fifty 
out-of-state white first year students are enrolled at the 
college and thirty out-of-state white second year students 
are enrolled in the college, and that in 1955 a total of 
143 out-of-state white students had been enrolled in the 
college.

While this is a class action, and a ruling by the court, 
that the state policy of excluding persons from the college



u

solely on the basis of race is unconstitutional, would require 
it to no longer consider race in determining whether to 
admit students in the future, this does not necessarily 
mean that school as the testimony seeks to indicate, would 
be under obligation to open its doors for the “ unbridled” 
admission of all students. Clearly the state would have 
to and could lay clown standards and establish criteria for 
admission which would keep it from overtaxing its facilities 
and enable it to maintain its accreditation. The removal of 
its discriminatory policy is not the factor which would 
imperil its standing as an accredited institution. In fact, 
the plan which the defendants have adopted and which 
the court below approved completely denies to these appli­
cants their constitutional right to enter the school. Under 
the plan approved below, they would be unable to enter 
Memphis State College until 1959-60, and, we submit, that 
it was error, and an abuse of discrimination on the part of 
the court below to approve and adopt appellees’ plan.

Relief

Under the foregoing circumstances, it is respectfully 
submitted, that appellants are entitled to an order requir­
ing their admission to Memphis State College, subject 
only to the same rules and regulations applicable to all 
other students without delay, and that a postponement 
of their relief pursuant to the plan adopted by the State 
Board of Education constitutes, in effect, a complete denial 
of their constitutional rights.



15

CONCLUSION

W herefore, for the  reasons hereinabove stated, it 
is respectfully  subm itted the judgm ent of the court 
below should be reversed.

H. T. L ockard,
322% Beale Avenue,

Memphis, Tennessee,

R obert L . Carter ,
T htjrgood M arsh a ll ,

107 West 43rd Street,
New York, New York,

Counsel for Appellants.

J. F. E stes,
B . L . H ooks,
A. W. W illis , J r.,
Z. A lexander  L ooby,

of Counsel.



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