Sipuel v Board of Regents of UOK Brief of Respondents

    IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1947

No. 369

Ada Lois Sipuel ,
Petitioner,

VERSUS
Board of Regents of the U niversity of Oklahoma, 

George L. Cross, Maurice H. Merrill, 
George W adsack and Roy Gittinger,

Respondents.

B R I E F  OF R E S P O N D E N T S

Mac Q. W illiamson,
Attorney General of Oklahoma,
Fred Hansen ,
First Assistant Attorney General, 
State Capitol,
Oklahoma City, Oklahoma,
Maurice H. Merrill,
John B. Cheadle,
Norman, Oklahoma,
Attorneys for Respondents.

October, 1947.

K IN G  LAW  BRIEF C O M PAN Y, 418 NORTHW EST TH IRD , O K LA H O M A  C IT Y — PHONE 3-2969



I N D E X

PAGE
Statement of the Case-------------------------------------  1
Argum ent__________________________________  3

Authority:—
Payne, Co. Treas. et al. v. Smith, Judge,

107 Okla. 165, 231 Pac. 469 _____________  3
Stone v. Miracle, Judge, 196 Okla. 42,

162 Pac. (2d) 534 ______________________  3
12 O.S. 1941, Section 1451-------------------------- 3

First Proposition: The decision of the Supreme Court 
of Oklahoma appealed from herein accords full 
recognition to the asserted constitutional right of 
the petitioner to have provision made for her legal 
education within the State and establishes that the 
State of Oklahoma has provided the institutional 
basis on which the petitioner may secure such edu­
cation.

(a) The decision of the Supreme Court of 
Oklahoma fully accepts the proposition that the 
Equal Protection Clause of the Fourteenth 
Amendment requires a state which provides edu­
cation in law to white students at an institution 
within its borders to likewise provide such edu­
cation within the state to students belonging to 
other races, and that this right is available to 
any applicant of one of said other races who in­
dicates an intention to accept such training.___ 5

Authority:—
Missouri ex rel. Gaines v. Canada,

305 U.S. 337 __________________________6, 11
(b) The decision of the Supreme Court of 
Oklahoma establishes that the law thereof vests



PAGE
in the petitioner a right to education in law 
within the State, at a public educational institu­
tion of higher education, on a basis of equality 
with white students admitted to law courses at 
the University of Oklahoma._______________  6

Authority:—
Allen-Bradley Local v. Wisconsin etc. Board,

315 U.S. 740 ___________________________ 10
American Power & Light Co. v. Sec. S3 Exch.

Comm., 329 U.S. 9 0 ____________________  10
A. T. S3 S. F. Ry. Co. v. R. R. Comm, of Cal.,

283 U.S. 380 ___________________________ 10
Board of Regents v. Childers, State Auditor,

197 Okla. 350, 170 Pac.(2d) 1018________  8
Douglas v. N.Y., N.H. etc. Ry. Co., 279 U.S. 377 10
Ex parte Tindall, 102 Okla. 192, 229 Pac. 125_9
In re: Assessment of K. C. S. Ry. Co.,

168 Okla. 495, 33 Pac. (2d) 772 __________  9
Overton v. State, 7 Okla. Cr. 203, 114 Pac. 1132 9
Quong Ham Wah Co. v. Ind. Acc. Comm.,

235 U.S. 445 __________________________  11
Senn v. Tile Layers etc., 301 U.S. 468 ________  10
State ex rel. Bluford v. Canada, 348 Mo. 298,

153 S.W. (2d) 1 2 _______________________  9
Tampa Water Works Co. v. Tampa,

199 U.S. 2 4 1 __________________________  10
U. S. v. Texas, 314 U.S. 480 ________________ 10
Article 1, Section 1, Oklahoma Constitution____ 8
Article 13, Section 3, Oklahoma Constitution___ 7
Article 13-A, Section 2, Oklahoma Constitution 8
Article 15, Section 1, Oklahoma Constitution___ 8
70 O.S. 1941, Sections 455, 456, 457 ________  7
70 O.S. 1941, Section 1451_________________  7

(c) The Oklahoma law, thus interpreted, ac­
cords with the Equal Protection Clause of the 
Fourteenth Amendment, as interpreted by this 
C ourt._________________________________  2 |

11



PAGE

Authority:—
Berea College v. Kentucky, 211 U.S. 4 5 ----------- 11
Bluford v. Canada, 32 Fed. Supp. 707 ------------  15
Cumming v. County Board etc., 175 U.S. 528----  11
Gilchrist v. Interborough etc. Co., 279 U.S. 159 15
Long Lum v. Rice, 275 U.S. 7 8 --------------------- 11
Missouri ex rel. Gaines v. Canada,

305 U.S. 337 _________________12, 13, 14, 15
Plessy v. Ferguson, 163 U.S. 537 --------------------  11
State ex rel. Bluford v. Canada, 348 Mo. 298,

153 S.W.(2d) 1 2 _______________________  15
State ex rel. Michael v. Witham, 179 Tenn. 250,

165 S.W.(2d) 378 ______________________  15
Second Proposition: The petitioner has failed to seek 

relief from or against the officials who may provide 
it under the law of Oklahoma._______________ 16
Authority:—
Copperweld Steel Co. v. Ind. Comm.,

324 U.S. 780 ___________________________ 16
Lawrence v. S. L. & S. F. Ry. Co., 274 U.S. 588 17
Prentis v. Atlantic etc. Co., 211 U.S. 2 1 0 ---------  17
S. L. & S. F. Ry. Co. v. Alabama etc. Comm.,

270 U.S. 560 ___________________________ 17
Conclusion_________________________________  19

I l l



IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1947

No. 369

Ada Lois Sipuel ,
Petitioner,

VERSUS
Board of Regents of the U niversity of Oklahoma, 

George L. Cross, Maurice H. Merrill, 
George W adsack and Roy Gittinger,

Respondents.

B R I E F  OF R E S P O N D E N T S

STATEM ENT OF THE CASE

The “Statement of the Case” set forth on Page 8 of
f

petitioner’s brief, in which is incorporated by reference her 
petition for writ of certiorari, is substantially correct with 
the exception that respondents did not, as stated in said



2 Sipuel v. Board of Regents et al.

petition (R. 2 and 3), refuse petitioner admission to the 
Law School of the University of Oklahoma on the ground:

“ (2) That scholarship aid was offered by the State 
to Negroes to study law outside the State, * * *.”

While certain allegations of fact set forth in said state­
ment and incorporated petition are not, in all respects, 
accurate, and certain conclusions of law set forth therein 
not, in our opinion, sound, respondents will fully clarify 
their position in relation to said allegations and conclusions 
in our “Argument” herein.

However, before concluding this “Statement of the 
Case,” respondents desire to call attention to the “Order 
Correcting Opinion—June 5, 1947,” which appears on 
Pages 51 and 52 of the record, and to the fact that said 
correction was not made in the pertinent language of the 
decision of the Supreme Court of Oklahoma, which opin­
ion appears on Pages 35 to 51 of the record. In this con­
nection it will be noted that said correction should have 
been made in the first line of the fourth paragraph of said 
opinion, which paragraph appears on Page 41 of the record, 
so that said line would read:

As we view the matter the State itself could not 
place complete * * *

By an examination of said decision, as it appears in 
180 Pac. (2d) 135-138, it will be noted that said correc­
tion was likewise not made therein.



Brief of Respondents 3

ARG U M EN T

There is but one real issue involved in this case and 
that is whether or not the trial court, that is, the District 
Court of Cleveland County, Oklahoma, erred in declining 
to issue a writ of mandamus, as prayed for by petitioner, 
to require the respondents, Board of Regents of the Univer­
sity of Oklahoma, George L. Cross, Maurice H. Merrill, 
George Wadsack and Roy Gittinger, to admit the petitioner, 
Ada Lois Sipuel, to the School of Law of the University 
of Oklahoma.

Before discussing the above issue respondents deem it 
advisable to call attention to 12 O.S. 1941, Sec. 1451, 
relating to the right of issuance of a writ of mandamus 
in Oklahoma, the material part of which is as follows:

“The writ of mandamus may be issued by the Su­
preme Court or the district court, or any justice or 
judge thereof, during term, or at chambers, to any in­
ferior tribunal, corporation, board or person, to compel 
the performance of any act which the law specially 
enjoins as a duty, resulting from an office, trust or 
station; * * *.”
The Oklahoma Supreme Court, in construing the 

above language, held in the second paragraph of the sylla­
bus of Payne, County Treasurer et al. V. Smith, Judge, 
107 Okla. 165, 231 Pac. 469, as follows:

“To sustain a petition for mandamus petitioner 
must show a legal right to have the act done sought 
by the writ, and also that it is plain legal duty of the 
defendant to perform the act.’’

In the case of Stone V. Miracle, Dist. Judge, 196 Okla. 
42, 162 Pac. (2d) 534, the syllabus is as follows:



4 Sipuel v. Board of Regents et al.

“Mandamus is a writ awarded to correct an abuse 
of power or an unlawful exercise thereof by an inferior 
court, officer, tribunal or board by which a litigant is 
denied a clear legal right, especially where the remedy 
by appeal is inadequate or would result in inexcusable 
delay in the enforcement of a clear legal right.”

In the case at Bar petitioner evidently recognized the 
principles of law announced in the above decision. In this 
connection it will be noted that petitioner, as a basis for 
this action in mandamus, alleged in her petition (R. 2 to 6) 
that although she was duly qualified to attend the School 
of Law of the University of Oklahoma when she, on Jan­
uary 14, 1946, “duly applied for admission to the first 
year class” of said school for the term beginning January 
15, 1946, she was by respondents:

“* * * arbitrarily refused admission” (Para. 1 of 
petitioner’s pet.).

“* * * arbitrarily and illegally rejected” (Para. 2 
of petitioner’s pet.).

And that said refusal or rejection was:
“* * * arbitrary and illegal” (Para. 5 of petitioner’s 

pet.).

Therefore, the real issue involved in this case is whether 
or not respondents, on January 14, 1946, arbitrarily and 
illegally rejected the application of petitioner for admission 
to the School of Law of the University of Oklahoma.

Said issue is summarized herein as follows:
Mandamus will not lie to require respondents to 

violate the public policy and criminal statutes of Okla­
homa by directing respondents to admit petitioner, 
a colored person, to the School of Law of the Univer­



Brief of Respondents 5

sity of Oklahoma, same being attended only by white 
persons, since petitioner has not:

(1) Applied, directly or indirectly to the Okla­
homa State Regents for Higher Education for them, 
under authority of Article 13-A of the Constitution 
of Oklahoma, to prescribe a school of law equal or 
“substantially equal” to that of the University of 
Oklahoma as a, part of the “standards of higher 
education” and/or “functions and courses of study” 
of Langston University, same being a State institu­
tion of higher education attended only by colored 
persons, or

(2) Indicated, directly or indirectly, to said State 
regents or to the governing board of Langston Uni­
versity, that she would attend such a school in the 
event it was established.

Respondents will present their argument in support 
of the above summarized issue under the following propo­
sitions.

FIRST PROPOSITION

THE DECISION  OF THE SUPREME COURT OF 
O K LA H O M A  APPEALED FROM HEREIN ACCORDS  
FULL RECOGNITION TO THE ASSERTED C O N ST I­
TU T IO N A L RIGHT OF THE PETITIONER TO HAVE  
PROVISION M ADE FOR HER LEGAL EDUCATION  
W IT H IN  THE STATE A N D  ESTABLISHES TH AT THE 
STATE OF O KLA H O M A  HAS PROVIDED THE IN ST I­
TU T IO N A L BASIS ON W H IC H  THE PETITIONER M A Y  
SECURE SUCH EDUCATION.

(a) The decision of the Supreme Court of Oklahoma 
fully accepts the proposition that the Equal Protection
Clause of the Fourteenth Amendment requires a state 
which provides education in law to white students ot 
at institution within its borders to likewise provide 
such education within the state to students belonging 
to ether races, end that this right is available to any



6 Sipuel v. Board of Regents et al.
applicant of one of said other races who indicates an 
intention to accept such training.

The decision of the Oklahoma Supreme Court, as 
above outlined, is in accord with the basis upon which the 
decision in Missouri ex tel. Gaines V. Canada, 305 U.S. 
337, rests. The decision of the Supreme Court of Okla­
homa recognizes this fully and repeatedly. “That it is the 
State’s duty to furnish equal facilities to the races goes 
without saying” (R. 38). “Negro citizens have an equal 
right to receive their law school training within the State 
if they prefer it” (R. 42). Said court expressly stated 
that it is the duty of the proper state authorities, upon 
proper notice or information “to provide for her [peti­
tioner] an opportunity for education in law at Langston 
or elsewhere in Oklahoma” (R. 45). “The reasoning and 
spirit of that decision [the Gaines case], of course, is appli­
cable here, that is, that the State must provide either a 
proper legal training for petitioner in the State, or admit 
petitioner to the University Law School” (R. 47). The 
opinion specifically holds that “petitioner is fully entitled 
to education in law with facilities equal to those for white 
students, * *

(b) The decision of the Supreme Court of Oklahoma 
establishes that the law thereof vests in the petitioner 
a right to education in law within the State, at a pub­
lic educational institution of higher education, on a 
basis of equality with white students admitted to law 
courses at the University of Oklahoma.

It is expressly stated in said decision that “the State 
Regents for Higher Education has undoubted authority



Brief of Respondents 7

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” (R. 42). Said duty is summed up in the con­
cluding portion of the' opinion in the statement ‘‘we are 
convinced that it is the mandatory duty of the State Regents 
for Higher Education to provide equal educational facilities 
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 sub­
stantial notice as to patronage therefor” (R. 50).

This determination rests upon a substantial basis (as 
is shown by Paragraphs 1 to 5, below), in the constitu­
tional and statutory law of Oklahoma:

1. The constitution and laws of said State pre­
scribe the policy of segregated education of the white 
and the colored races, but with equal facilities, from 
the common schools, Oklahoma Constitution, Article 
13, Section 3 (R. 16, Par. 14), on through the col­
leges and other institutions, 70 O.S. 1941, Sections 
455, 456 and 457 (printed in full in the appendix 
to petitioner’s brief, P. 21).

2. In pursuance of this policy, the State has estab­
lished, among other institutions of higher education, 
the University of Oklahoma, to which white students 
are admitted. Likewise the State has established Lang- 
ton University, to which colored students are admitted. 
70 O.S. 1941, Section 1451 (plaintiff’s appendix, 
P. 21).

3. The Oklahoma State Regents for Higher Edu­
cation is established as “a co-ordinating board of con-



8 Sipuel v. Board of Regents et al.

trol” for all institutions of higher education. As such, 
it is empowered and directed to “prescribe standards 
of higher education applicable to each institution,” to 
“determine the functions and courses of study in each 
of the institutions to conform to the standards pre­
scribed,” and to “recommend to the State Legislature 
the budget allocations to each institution.” Okla­
homa Constitution, Article 13-A, Section 2 (printed 
in full in appendix to petitioner’s brief, P. 20). This 
last function of recommending budget allocations is 
merely for the information of the Legislature, since 
Section 3 of said article is as follows:

“The appropriations made by the Legislature for 
all such institutions shall be made in consolidated 
form without reference to any particular institution 
and the Board of Regents herein created shall allo­
cate to each institution according to its needs and 
functions”
The mandatory character of this constitutional pro­

vision was given effect by the Supreme Court of Okla­
homa in the case of Board of Regents V. Childers, State 
Auditor (July 9, 1946), 197 Okla. 350, 170 Pac. 
(2d) 1018, approximately one year prior to its de­
cision in the case at Bar. From these constitutional 
provisions it is clear that the State Regents for Higher 
Education, and not the governing board of each edu­
cational institution, have the power to prescribe the 
functions and courses of study of each institution, and 
that said State Regents have under their control all the 
financial resources which the State has appropriated for 
higher education. Hence, it is clear that the State 
Regents have full power to provide a legal education 
for the petitioner within the State and to prescribe the 
institution at which it shall be given, and that no other 
authority of the State possesses such power.

4. The Constitution of Oklahoma, Article 1, Sec­
tion 1, provides that “the State of Oklahoma is an 
inseparable part of the Federal Union, and the Con­
stitution of the United States is the supreme law of 
the land.” The same constitution, in Article 15, Sec-



Brief of Respondents 9

tion 1, prescribes an official oath to be taken by all 
State officers, including, of course, the State Regents 
for Higher Education, that they will “support, obey 
and defend the Constitution of the United States, and 
the Constitution of the State of Oklahoma.” It is the 
established practice of the courts of Oklahoma to con­
strue grants of power in such a way as to comply with 
constitutional requirements. Ex parte Tindall, 102 
Okla. 192, 200, 229 Pac. 125, 132; In re: Assess­
ment of Kansas City Southern Railway Company, 
168 Okla. 495, 33 Pac. (2d) 772. “The statutes of 
Oklahoma are construed in connection with and in 
subordination to the Constitution of the United States 
* * *.” Overton v. State, 7 Okla. Cr. 203, 205, 114 
Pac. 1132.

5. Fitting these constitutional and statutory pro­
visions and established practice together, recognizing 
the unquestionable fact that the State Regents for 
Higher Education can give effect to the State’s policy 
of segregation, consistently with obedience to the Con­
stitution of the United States, only by providing edu­
cation in law within the State to such Negroes as re­
quested it, so long as such instruction is afforded to 
whites, it is neither a “strange construction” (Pet. B. 
16), a “stretch of the imagination” (Pet. B. 17) nor 
“sophistical and circuitous reasoning” (Pet. B. 18), 
for the Oklahoma Supreme Court to hold that the 
State Regents are under a mandatory duty to provide 
for that training, consistently with the policy of segre­
gated education, whenever it is clear that there are 
Negroes who are willing to receive it. It is merely 
compliance with the command of the State’s highest 
law that the Constitution of the United States shall 
be obeyed. It is adherence to the sound doctrine ex­
pressed by the Supreme Court of Missouri in State 
ex rel. Bluford V. Canada (1941), 348 Mo. 298 309 
153 S.W. (2d) 12, 17:

“It is the duty of this court to maintain Mis­
souri s policy of segregation so long as it does not 
come in conflict with the Federal Constitution. It



10 Sipuel v. Board of Regents et al.

is also our duty to follow the interpretation placed 
on the Federal Constitution by the Supreme Court 
of the United States.”

It is but giving effect to the principle enunciated by 
this Court in American Power and Light Company V. 
Securities and Exchange Commission, 329 U.S. 90:

‘‘Wherever possible statutes must be interpreted 
in accordance with constitutional provisions.”

Counsel for the petitioner are hardly in a position to 
criticize a statement of the law with which they con­
curred, when they said in their brief in the Supreme 
Court of Oklahoma:

‘‘The Constitution and laws of the United States 
and State of Oklahoma require that equal facilities 
be afforded all citizens of the State. The duty of 
making such equal provisions was delegated to the 
Board of Regents of Higher Education. This duty 
is incumbent upon the Board by virtue of their 
office” (R. 49, 50).

This reasonable and tenable declaration of the law 
of Oklahoma, by its highest court, will be accepted 
by this Court as an authoritative definition of the 
mandatory duty of the State Regents for Higher Edu­
cation under the State law. Tampa Water Works 
Company V. Tampa, 199 U.S. 241, 244; Douglas V. 
New York, New Haven and Hartford Railroad Com­
pany, 279 U.S. 377, 386; Atchison, Topeka and 
Santa Fe Railroad Company V. Rail Commission of 
California, 283 U.S. 380, 390; Senn V. Tile Layers 
Protective Union, 301 U.S. 468, 477; United States 
V. Texas, 314 U.S. 480, 487; Allen-Bradley Local V. 
Wisconsin Employment Relations Board, 315 U.S. 
740, 746. This Court will not accept an argument 
which “but disputes the correctness of the construc­
tion affixed by the court below to the State statute 
and assumes that that construction is here susceptible 
of being disregarded upon the theory of the existence 
of the discrimination contended for when, if the mean­
ing affixed to the statute by the court below be ac-



Brief of Respondents 11

copied, every basis for such contended discrimination 
disappears.” Quong Ham Wah Co. V. Industrial
Accident Commission, 235 U.S. 445, 449.

(c) The Oklahoma law, thus interpreted, accords 
with the Equal Protection Clause of the Fourteenth 
Amendment, as interpreted by this Court.

The decisions of this Court consistently have recog­
nized the validity of racial segregation in education under 
the Fourteenth Amendment, provided that all races are 
accorded equal, or substantially equal, facilities. Plessy V. 
Ferguson, 163 U.S. 537, 544; Gumming V. County Board 
of Education of Richmond County, 175 U.S. 528; Berea 
College V. Kentucky, 211 U.S. 45, 55; Long Lum  V. Rice, 
275 U.S. 78.

In Missouri ex rel. Gaines V. Canada, 305 U.S. 337, 
344, this Court reaffirmed this principle, stating it as “the 
obligation of the state to provide Negroes with advantages 
for higher education substantially equal to the advantages 
afforded to white students,” and that the fulfillment of 
said obligation, ‘‘by furnishing equal facilities in separate 
schools, * * * has been sustained by our decisions.” The 
petitioner’s counsel accept this view repeatedly in their brief 
(Pp. 8, 10, 13), and take their stand upon the proposition 
that ‘‘The decision of the Supreme Court of Oklahoma is 
inconsistent with and directly contrary to the decision of 
this Court in Gaines V. Canada” (Pet. B. 8). But the 
distinctions between the legal and factual situation pre­
sented in the Gaines case and that presented in this case 
are significant and controlling under the very doctrine to 
which the petitioner appeals.



12 Sipuel v. Board of Regents et al.

Said distinctions, as will hereinafter be shown, have 
been accurately apprehended and correctly applied by the 
Supreme Court of Oklahoma.

1. The basic ground of the decision in the Gaines 
case is stated thus by Mr. Chief Justice Hughes:

“By the operation of the laws of Missouri a privi­
lege has been created for white law students which 
is denied to Negroes by reason of their race. The 
white resident is afforded legal education within 
the State; the Negro resident having the same quali­
fications is refused it there and must go outside the 
State to obtain it” 305 U.S. at 349.
2. Subsidiary to this main proposition, the opin­

ion in the Gaines case points out that under the de­
cision of the Missouri court the curators of the Lincoln 
University were not under a duty to provide the peti­
tioner therein with training in law, but merely had an 
option to do so or to remit him to the procuring of 
a legal education outside Missouri at state expense. 
305 U.S. at 346 and 347. The decision herein of 
the Supreme Court of Oklahoma expressly declares 
(R. 42) that:

“The State Regents 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.”
3. Inasmuch as the first decision of the Supreme 

Court of Missouri in the Gaines case maintained that 
the constitutional rights of the petitioner therein were 
provided for adequately by the opportunity to have 
his tuition paid in an out-of-state law school, this 
Court declared that:

“We must regard the question whether the pro­
vision for the legal education in other states of Neg­
roes resident in Missouri is sufficient to satisfy the



Brief of Respondents 13

constitutional requirement of equal protection, as
the pivot upon which this case turns” 305 U.S.
at 348.

The decision of the Supreme Court of Oklahoma 
expressly recognizes that the provision in the Okla­
homa law for the payment of tuition in out-of-state 
schools “does not necessarily discharge the State's duty 
to its Negro citizen” (R. 42).

4. In the Gaines case, the decision did not rest upon 
the point that no law school presently existed for 
Negroes, but upon the ground that the discrimination 
arising from its absence “may nevertheless continue for 
an indefinite period by reason of the discretion given 
to the curators of Lincoln University and the alterna­
tive of arranging for tuition in’ other states, as per­
mitted by the state law as construed by the state court, 
so long as the curators find it unnecessary and impratic- 
able to provide facilities for the legal instruction of 
Negroes within the state.” This Court continued “In 
that view, we cannot regard the discrimination as ex­
cused by what is called its temporary character” 305 
U.S. at 351, 352. This language implies that a state 
is not required to maintain in its institution for Neg­
roes a duplication of all departments existing in its 
institution for whites, regardless of whether students 
present themselves for training therein.

The decision of the Supreme Court of Oklahoma 
specifically points out that “authority already exists” 
(R. 44) for the establishment of a separate law school 
within the State, and that, contrary to the situation in 
the Gaines case, ‘‘it is the mandatory duty” of the State 
Regents for Higher Education “to provide a separate 
hw  school for Negroes upon demand or substantial 
notice as to patronage therefor” (R. 50). Hence, the 
possibility of indefinite continuance of discrimination, 
upon which the Gaines decision turned, does not exist 
in Oklahoma.

5. The petitioner’s counsel make much of an alleged 
misconception by the Supreme Court of Oklahoma



14 Sipuel v. Board of Regents et al.
that the petitioner in the Gaines case had unsuccessfully 
demanded from Lincoln University an education in 
law. This alleged misconception vanishes if the opin­
ion of the Oklahoma court is read with attention. The 
opinion in the Gaines case (305 U.S. 342) states that 
the petitioner, on applying for admission to the Uni­
versity of Missouri, was advised:

“To communicate with the president of Lincoln
University and the latter directed petitioner’s atten-
.  • t ition

to the Missouri statute providing for the payment of 
tuition in out-of-state schools.

From this it is evident that the petitioner in the 
Gaines case did communicate with the Lincoln Univer­
sity authorities and that this communication must have 
revealed his desire for training in law at the hands of 
the Missouri authorities. The Supreme Court of Okla­
homa, recognizing that said opinion did not reveal the 
exact nature of the communication to Lincoln Univer­
sity, stated that “we assume he applied to Lincoln 
University for instruction there in the law” (R. 45), 
but its stress upon the effect of this communication 
was that after it “the authorities in charge of the school 
for higher education of Negroes [in Missouri] had 
specific notice that petitioner, Gaines, was prepared and 
available and therefore there existed a need and at least 
one patron for a law school for Negroes” (R. 46). 
So treated, there is clearly no misconception.

The Oklahoma court found, with support in the 
record, that the petitioner in this case had not brought 
home to the proper state authorities a desire for, and 
willingness to accept, legal education in a separate 
school in accordance with State policy. When it was 
suggested that this conduct justified the inference that 
a law course in a separate school would not be accept­
able to her, no disclaimer was made on her behalf 
(R. 39). The Oklahoma court was thus justified in 
finding that neither by express demand nor conduct 
had the petitioner brought home to the proper authori­
ties her availability as a student in a separate law school



Brief of Respondents 15

for Negroes. In the absence thereof, said Court held 
that the failure to maintain a school of law for Neg­
roes, in readiness for some possible future Negro appli­
cant, was not a violation of the Fourteenth Amend­
ment. Until a reasonable notice is given that a Negro 
student desires local instruction and will accept it on 
the terms which the State constitutionally may pre­
scribe, there is no need for the State to maintain un­
used facilities. This rule finds support in numerous 
well-reasoned authorities. Bluford V. Canada, 32 Fed. 
Supp. 707; State ex rel. Bluford V. Canada, 348 Mo. 
298, 153 S.W. (2d) 12; State ex rel. Michael V. Wit- 
ham, 179 Tenn. 250, 165 S.W. (2d) 378.

6. The petitioner’s counsel make much of the agreed 
stipulation of fact concerning the special facilities for 
training in the Oklahoma law and procedure afforded 
by the University of Oklahoma School of Law (Pet. 
B. 19). This stipulation covers matters which this 
Court in the Gaines case held to be “beside the point” 
305 U.S. at 349. These special advantages can be fur­
nished petitioner as well in a separate school for Neg­
roes as in the University of Oklahoma, if she will but 
indicate effectively to the proper authorities her will­
ingness to accept training therein.

7. The petitioner’s counsel calls attention to a stipu­
lation concerning the action of the State Regents for 
Higher Education subsequent to the filing of this ac­
tion (Pet. B. 12, 13). The opinion of the Supreme 
Court of Oklahoma adequately demonstrates the im­
materiality of this (R. 50), and, since counsel makes 
no effort to rebut the same in their brief, we assume 
that they do not make any point of it in this Court. 
Compare Gilchrist V. Interborough Rapid Transit 
Company, 279 U.S. 159, 208.



16 Sipuel v. Board of Regents et al.

SECOND PROPOSITION

THE PETITIONER HAS FAILED TO SEEK RELIEF 

FROM OR A G A IN ST  THE OFFICIALS W H O  M A Y  PRO­

V IDE IT  UNDER THE LAW  OF OKLAHOMA.

As the analysis herein of the local law already has 
demonstrated, the State Regents for Higher Education have 
full control over the functions, the courses of study and 
the budgets of the several Oklahoma institutions of higher 
education. The Board of Regents of the University of 
Oklahoma and its administrative authorities have no power 
to alter its functions from those of an institution for the 
education of white students to those of an institution for 
the education of white and colored students. The authority 
to prescribe functions rests in the State Regents. They 
have complete control over the purse strings of the State’s 
higher educational institutions. It is they who must make 
the decision whether the resources available will enable them 
to provide separate education in law for the two races in 
accordance with the State’s policy, and what budgetary 
adjustments must be made for that purpose. If they find 
this to be impossible, they might elect to comply with the 
Constitution of the United States by discontinuing all 
State provision for instruction in law, or by opening up 
the single State law school to students of all races. Hence, 
it is they, and not the authorities of the University of Okla­
homa, from whom and against whom the petitioner should 
seek relief. This case, therefore, comes under the rule enun­
ciated and applied in Copperweld Steel Company V. Indus­



Brief of Respondents 17

trial Commission of Ohio, 324 U.S. 780, 785, wherein this 
Court held:

“The question of the propriety of taking the appeal 
need not be decided, in the view we take of the basis 
of the state court’s judgment. Inasmuch as we con­
clude that decision was grounded upon the view that 
the appellant had not pursued the remedy afforded by 
State law for the vindication of any constitutional 
right it claimed was violated, we must dismiss the ap­
peal and deny certiorari.”

See also, as to the need for pursuing State administrative 
remedies before resorting to judicial action, Prentis V. At- 
lantic Coast Line Company, 211 U.S. 210, 230; Lawrence 
V. St. Louis-San Francisco Railway Company, 274 U.S. 
588, 592; St. Louis-San Francisco Railway Company V. 
Alabama Public Service Commission, 270 U.S. 560, 563.

The decision of the Supreme Court of Oklahoma ex­
pressly holds and determines:

(1) That the petitioner, a Negro, is entitled to edu­
cation in law within the State so long as the State 
maintains facilities for such education available to 
white students;

(2) That such education must be furnished on a 
basis of equality of facilities, but, under the established 
law and policy of the State, in a separate institution;

(3) That only the State Regents for Higher Edu­
cation have the authority to provide such education, 
since they constitute the only official body of the State 
having authority to prescribe the standards and the 
functions and courses of study of the several State in­
stitutions of higher education;



18 Sipuel v. Board of Regents et al.

(4) That the duty of the State Regents to provide 
the petitioner with legal training on a basis of equality 
with that afforded to white students is mandatory and 
not discretionary;

(5) That this duty attaches whenever, either by 
formal demand or through information arising in some 
other way, the State Regents properly are chargeable 
with notice that a Negro student desires the provision 
of training in law at a separate law school;

(6) That the State Regents are the only State offi­
cers that have at their command the State’s revenue 
provided for purposes of higher education.

On the basis of this analysis of the pertinent law, the 
petitioner’s road to secure a legal education within Okla­
homa, if she is willing to accept the State’s valid policy of 
segregated education, is clear. If she applies to the State 
Regents for Higher Education to provide her facilities for 
a legal education, it is inconceivable that, with the instant 
opinion of the Supreme Court of Oklahoma before them, 
they will refuse to do so. Should they, the remedy through 
judicial recourse is clear.

The petitioner could have set this machinery in mo­
tion on April 29, 1947, when the opinion of the Supreme 
Court of Oklahoma was filed. The constitutional and 
statutory provisions upon which the decision rests were in 
existence at all times, and certainly her attention was called 
to the respondent’s contention respecting their interpreta­
tion as early as the filing of respondents’ answer in the 
District Court of Cleveland County, Oklahoma, on May 
14, 1946. Thus, at any time since then, she might have



Brief of Respondents 19

evinced her willingness and desire to accept an education 
in law furnished according to the valid policy of the State. 
Instead, she insisted at all times, and still insists, on her 
alleged right to attend the Law School of the University 
of Oklahoma regardless of that policy.

Her disregard of the State Regents for Higher Educa­
tion, as aforesaid, and her failure to make them parties to 
this action, combine to indicate that her interest was in 
breaking down the State’s policy of segregated education, 
not in securing provision for legal training in accordance 
therewith. It fully justifies the comment of the Supreme 
Court of Oklahoma: “The effect of her actions was to
withhold or refrain from giving to the proper officials, the 
right or option or opportunity to provide separate educa­
tion in law for her * * *” (R. 47). This attitude, so 
manifested and continued, gives no assurance that she 
would accept legal training in a separate law school, and 
justifies the State Regents in taking no action, in so far 
as she is concerned, until she indicates a willingness to do 
so. For all delay resulting from this conduct, the petitioner 
alone is responsible.

CO NCLUSION

We respectfully submit that the petition for certiorari 
herein should be denied for want of a substantial Federal 
question in that:

(1) The judgment of the Supreme Court of Okla­
homa herein correctly applies the Constitution of the



20
United States in holding that petitioner has not been 
denied the equal protection of the law by operation 
of the constitution and statutes, and the administra­
tive action, of the State of Oklahoma herein brought 
in question, and

(2) The judgment of the Supreme Court of Okla­
homa is based upon the non-Federal ground that the 
petitioner has failed to seek relief from the only admin­
istrative officers authorized to provide her the facilities 
for legal education which she desires.

Respectfully submitted,

Mac Q. W illiamson,
Attorney General of Oklahoma,

Fred Hansen ,
First Assistant Attorney General, 
State Capitol,
Oklahoma City, Oklahoma,
Maurice H. Merrill,
John B. Cheadle,
Norman, Oklahoma,
Attorneys for Respondents.

Sipuel v. Board of Regents et al._______

October, 1947.



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